' In this constitutional petition the legality of the order dated 6-2-1983 of the Additional District Judge has been called into question.
2. On 5-6-1982 a Rent Controller at Lahore made an ex parte order of ejectment against the petitioner. From this order the petitioner preferred an appeal before the Additional District Judge.
On 24-10-1982 the learned Additional District Judge directed the petitioner to deposit the arrears of rent which after some deduction came to Rs,1,900 by 24-11-1982 and the future rent before 15th of each succeeding month and fixed the date of hearing of the appeal as 18-12-1982. The petitioner did not deposit the arrears by 24-11-1982 but did so on 16-12-1982. Upon this the landlords, respondents Nos.1 to 3, moved the learned Additional District Judge to dismiss the appeal of the petitioner as required by section 15(5) of the Punjab Urban Rent Restriction Ordinance, 1959. This application was allowed and by the impugned order the appeal of the petitioner was dismissed summarily and he was directed to hand over the vacant possession of the premises to the landlords within two months.
3. It is stated on behalf of the petitioner that the order of the learned Additional District Judge dismissing the appeal summarily suffers from an error of law apparent on the face of the record. It is argued that the default which entails summary dismissal of the appeal under section 15(5) of the Punjab Urban Rent Restriction Ordinance necessarily involves an element of negligence or fault and means something more than mere non-compliance and that in this case there was no default as the failure of the petitioner to make the deposit by the date fixed was entirely on account of a bona fide mistake on the part of his counsel. In support of the meaning of the word 'default' reliance has been placed upon Ghulam Muhammad Khan Lundkhor v. Safdar All PLD 1967 SC 530.
4. I find merit in the contention of the learned counsel. It is to be noticed that on 24-10-1982 the learned Additional District Judge had fixed two dates, one for making the deposit and the other for hearing of the appeal. An affidavit was filed on behalf of counsel for the petitioner before the learned Additional District Judge to the effect that he had misunderstood the order as announced and thought that only one date, that is, 18-12-1982, had been fixed both for making the deposit and hearing of the appeal and that he had informed the petitioner accordingly. The learned Additional District Judge rejected the affidavit with the following observations:- "I am however clear in my mind that I had very clearly given two separate dates, one for deposit of arrears of rent and the other for arguments in the appeal. There could be no chance or misunderstanding the date for deposit of arrears of rent."
' No doubt the learned Judge had fixed two separate dates, one for the deposit and the other for hearing of the appeal but this does not necessarily detract from the credibility of counsel's affidavit that he did not catch the first date 24-11-1982 and got the impression that only one date, that is, 18- 12-1982 has been appointed for both purposes In Hashim Khan v. Ghulam Nabi 1973 SCMR 112 counsel misinterpreted the order of the Rent Controller with regard to the deposit of the monthly rent and advised his client accordingly. Consequently, the client did not comply with the order of the Rent Controller. It was held by Supreme Court that it was a case of bona fide mistake and as such there was no default. The case before me stands on the same footing. I should, therefore, think that the learned Additional District Judge ought not to have summarily dismissed the petitioner's appeal. I would accordingly declare the order of the learned Additional District Judge as of no legal effect. The petitioner's appeal should be treated as still pending and disposed of in accordance with law within two months. If the petitioner has ceased depositing the rent after the decision of the learned Additional District Judge he shall deposit the arrears up to date by 3-9- 1984, and the rent for August, 1984 and subsequent months before the 15th of each succeeding months. There will be no order as to costs in this petition.
Petition accepted.
1984 MLD 82 [Karachi] Syed Haider Ali Pirzada, J MUHAMMAD KABIRUDDIN--Appellant versus JALIL AHMAD--Respondent First Rent Appeal No. 834 of 1980, decided on 1st April, 1984.
(a) Civil Procedure Code (V of 1908)-- ---O.VI, r.7--Pleadings--Departure from--Party, held, could not be permitted to raise a plea at trial which was inconsistent with plea raised by him in his pleadings.--[Pleadings] [p.86] A
(b) Sind Rented Premises Ordinance (XVII of 1979)-- ---Ss. 15 & 21--Default in payment of rent--Practice of collection of rent in lump sum periodically against provisions of Ordinance--Practice not approved--No illegality committed by Rent Controller in not exercising his discretion in favour of such defaulting tenant in circumstances.
[pp.86, 87] A, B & C
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- ---S. 13---Sind Rented Premises Ordinance (XVII of 1979), Ss. 15(2) & 21--Payment of rent--Parties, held, could not contract themselves out of provisions of relevant section of law by establishing a different practice with regard to mode of payment of rent. [p.87] D Muhammad Siddique v. Abdul Rasheed 1982 CLC 217; Syed Jalilur Rehman v. Messrs Johar Trading Co. 1982 CLC 219; Najmuddin v. Zamir Ahmed PLD 1982 Kar. 188; Fazal Ahmed and others v. Muhammad Abdul 1981 CLC 793; Muhammad Hussain v. Mian Muhammad Ahmed Khan 1975 SCMR 355; Abdul Rashid v. Saleh Muhammad 1980 SCMR 506; Muhammad Alain v. Noor Mohammad 1973 SCMR 606 and Dr. Syed Waris Ali Tirmizy v. Mst. Liaquat Begum 1980 SCMR 601 ref. Alima Ahmad v. Amir Ali PLD 1984 SC 32 rel. R. H. Farooqui for Appellant. A. M. Hashimi for Respondent.
Date of hearing: 29th November, 1983.
' This first rent appeal arises out of the order, dated 30-9-1980 passed by the Vth Rent Controller, Karachi, in Rent Case No,133 of 1977, filed by the respondent against the appellant.
' The facts which give rise to this appeal are as follows:-
2. That by an agreement entered into between the appellant and one Muhammad Ahmed Burney as the appellant acquired the tenancy of Quarter as 5-D, 110/17, in New Karachi at rent of Rs,20 per month which was enhanced to Rs,25.
3. The respondent filed an ejectment application being Rent Case No,133 of 1977 against the appellant on the ground of default for the period 1-6-1976 to 31-12-1976, on the ground of unauthorized conversion of residential premises into Commercial-cum-Industrial and also on the ground of nuisance.
4. The appellant filed his written statement and denied the various allegations made therein. He has also averred that he is a tenant of Muhammad Ahmed Burney and not of the respondent. He has stated therein that the said Muhammad Ahmed Burney accepted rent up to May 1976 and thereafter he demanded enhanced rent at the rate of Rs,35 per month. In December 1976, he sent the rent by money-order which was refused thereafter he deposited the rent with the permission of the learned Rent Controller. Accordingly, the preliminary issue of the existence of such relationship was framed the learned Rent Controller tried the same and by his order, dated 4-10-1978 found that the relation ship of landlord existed between the parties. The learned Rent Controller after recording evidence of the parties allowed the ejectment application by his order, dated 30-9-1980, and directed the appellant to vacate and hand over the premises within four months of the passing of the order.
5. The appellant being aggrieved by the aforesaid order has preferred this appeal on the grounds mentioned in the Memo of Appeal.
6. The ejectment application was filed by Jalil Ahmed not through his father. He described in the title of the application as "adult". In his cross-examination he stated that when he filed the application he was minor. The application was allowed to continue without any objection on the part of the appellant/defendant, the order of the learned Rent Controller is valid and cannot be challenged at the appellate stage.
7. As regards relationship of landlord and tenant, it is submitted by the learned counsel for the appellant that the premises in-question was let out by Muhammad Ahmed Burney and not by Jalil Ahmed Burney. The appellant paid the rent to Muhammad Ahmed Burney. He also served a notice dated 17-12-1976 Exh.4 as such there is no relationship of landlord and tenant exists between the parties. The learned trial Court by his order, dated 4-10-1978 decided the preliminary issue against the appellant and held that the applicant/respondent was minor at the time of letting out the premises to the appellant. I have perused the evidence of the parties on this Issue and also gone through the order, dated 4-10-1978 with the assistance of the learned counsel of the parties.
8. P.W.No,2, Muhammad Ahmed Burney stated that the premises were rented out to the appellant in the year 1968 and at that time applicant/respondent was minor as such he executed the tenancy agreement on behalf of his minor son. He also admitted that notices Exhs. 4 and 5 showing himself as owner and landlord of the premises. The appellant in his statement had stated that he had taken premises from respondent's father, and he paid rent to him. The tenancy agreement was also executed by him and page No,1 has been changed and the name of the respondent has been added in the agreement. In support of his case he examined one Qamruddin who had stated that Muhammad Ahmed Burney had given the disputed premises to the appellant through him and the appellant had signed on both the pages of the agreement. The witness himself did not sign the agreement of tenancy.
9. The burden of this Issue was on the appellant which he failed to discharge. It is no doubt that the agreement of tenancy was not produced alon gwith the ejectment application nor it was mentioned in the application as such the appellant ought to have amended the written statement, after seeking necessary amendment. The appellant did not see any amendment in the pleading.
This plea cannot be raised at this appellate stage.
10. The respondent has also not pleaded specifically that when the premises were let out he was minor as such his father was receiving rent on his behalf. On the other hand, the learned counsel for the respondent has contended that the appellant did not raise any objection in the trial Court but he allowed to continue the ejectment application without any objection on the part of the appellant, the ejectment order will be valid.
11. On 11-1-1977 the respondent filed an -ejectment application for ejectment of the appellant on the ground that the appellant failed to pay Rs,175 being the arrears of rent for a period from 1-6-1976 to 31-12-4976.
12. The appellant in his written statement dated 31-5-1977 took the stand that rent in respect of the premises up to the month of May, 1976, was paid to Muhammad Ahmed Burney but he refused to accept the rent for subsequent month at Rs,25 per month as he demanded the enhance rent of Rs,35 per month. The appellant in December, 1975, sent the rent for the period from June, 1976 to December, 1976 at Rs,25 per month by money-order to Muhammad Ahmed Burney who refused to accept the same.
13. According to tenancy agreement Exh.2, the rent shall be payable in advance.
14. The respondent examined-himself as his own witness and also examined his father as P.W.No,2 in evidence Muhammad Ahmed Burney, the father was examined in support of the application on main Issues. It was suggested in cross-examination to Mr. M. A. Burney that it was established practice in pursuance of which the appellant used to pay rent in lump sum after interval of several months. The receipts Exhs. A-4/1 to A-4/5 were issued on the same day i.e, on 10-12-1975. Similarly, five receipts were issued on 8-8-1974 which were produced as Exhs. A-6/1 to A-6/4. The said Burney denied a suggestion made to him that at his request the appellant used to pay rent for several months together as Burney's shop was away at Nanakwara as the appellant used to come to Nanakwara.
15. It is appeared that the learned Rent Controller held that the conduct of the appellant was not approved by the respondent. He was further of the view that even though the landlord was receiving rent at long intervals from his tenant, that fact itself did not lead to the conclusion that there was agreement on the part of the landlord to receive rent at intervals. The learned Rent Controller was of the view that parties could not contract themselves out of the provisions of section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959, as the provision is based on public policy.
16. Mr.Rehanul Hassan Farooqui, learned counsel for the appellant has urged that the established practice between the parties had changed the legal position. He has relied upon the decision of this Court in the cases of Muhammad Siddique v. Abdul Rasheed 1982 CLC 217, Syed -Jalilur Rehman v. Messrs Johar Trading Co. 1982 CLC 219 and Najmuddin v. Zamir Ahmed PLD 1982 Kar.
188.
17. In Fazal Ahmed and others v. Muhammad Abdul 1981 CLC 793, in a case where as tenant of long-standing was irregular in payment of rent but the irregular payments were waived by the landlord for at least two years, and the rent was in arrears discretion in favour of tenant was not interfered with in the circumstances.
18. The contention with regard to practice having grown up about payment of rent in lump sum was considered by the Supreme Court in the case of Muhammad Hussain v. Mian Mohammad Ahmed Khan 1975 SCM R 355, and it was held that contract of such description even otherwise being contrary to the provision of section 13(2) could not prevail. It was observed as under:- "The learned Single Judge has rightly observed that the implied contract on the basis of the aforesaid practice was not pleased by the petitioner in his written statement, and that in any event such a contract was contrary to the provisions of section 13(2) of West Pakistan Urban Rent Restriction Ordinance (VI of 1959), and, therefore, the former could not prevail over the latter. The petitioner has failed to controvert this legal position."
19. The petitioner claims benefit under section 13 of the said Ordinance, and he can, therefore, do so if his case does not fall within mischief of section 13(2) of the Ordinance.
20. In the case of Abdul Rashid v. Saleh Muhammad 1980 SC M It 506 a decision of the Supreme Court, the plea taken by the tenant that a practice periodically was considered and was observed as under:- "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot .contract themselves out of the provisions of the law on the subject, namely, the West Pakistan Urban Rent Restriction Ordinance.
Similarly, neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S.Riaz All v.
Shabbir Ahmad Khan that "a tenant cannot lead evidence in variation of the terms and the conditions of the written agreement of lease, and moreover the time, showed that the landlord has agreed to vary the terms and conditions of the rules regarding payment of rent."
' In an earlier decision of the Supreme Court in Muhammad Alam v. Noor Mohammad 1973 SCM R 606, it was observed as under:- "Another aspect of the case that the appellant was required to pay rent by the 5th day of every month as stipulated in the rent-deed Exh.27. If he failed to pay rent within fifteen days after expiry of the date fixed tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law. The Rent Controller could, however, condone the delay if he was satisfied that by agreeing to accept periodically the landlord had made the tenant believe that rent was not to be paid every month. In that case it could be said there was no deliberate default and the Court might exercise discretion against directing eviction of the tenant although, in law, default is proved on his part."
' In Dr.Syed Waris Ali Tirmizy v. Mst. Liaquat Begum 1980 SCMR 601 a decision of the Supreme Court where reliance was placed on the above quoted observation in Muhammad Alam's case, it was pointed out as under:- "As this observation was followed in Muhammad Shafi v. Zahir Hussain and another we would clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J. (as he then was) gave a warning in Muhammad Alam's case that a practice by a tenant to pay rent at irregular intervals made him liable to eviction, because such a practice was contrary to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Then, after giving this warning, his Lordship went on to make an observation that "the Court could condone delay in the payment of rent if the landlord had agreed "to accept, rent periodically." Now, if a landlord agrees "to accept rent periodically", this can only be the result of a fresh agreement between him and the tenant, and if he enters into such an agreement, he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month. However, as was explained in Alimullah's case the burden of proving such an agreement between the landlord and the tenant is not to be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals, therefore, the observation of Muhammad Yaqoob Ali, J. (as he then was), does not held the Petitioner's case, because he has failed to prove that the respondent, through her husband, had agreed to alter the terms of the tenancy with the petitioner and to receive rent from him at long intervals."
21. On the other hand, Mr.Hashmi, the learned counsel for the respondent has contended that no such practice was pleaded in the written statement and the appellant did not challenge the period of default in the written statement. I am of the view a party cannot be permitted to raise a plea at the trial which is inconsistent with the pleas raised by him in his pleadings.
22. In the impugned order of the Rent Controller, the plea of the collection of the rent in lump sum periodically was rejected and according to him such practice could not be pleaded against the provisions of the Sind Urban Rent Restriction Ordinance, 1959 under which the appellant had to pay rent regularly to the respondent. The aforesaid finding to that extent cannot be taken exception to but it has been argued by Mr.Rehanul Hassan Farooqi, the learned counsel for the appellant that the evidence on record with regard to the practice on the part of the respondent in receiving rent after a period of months would at least show that the respondent/landlord condoned the default and, therefore, the learned Rent Controller should have rejected the ejectment application. It is contended that the Rent Controller should have considered whether under the circumstances stated, the order of the rent was proper or not.
23. Reference may be made to a recent judgment of our Supreme Court reported in Alima Ahmad v. Amir Ali PLD 1984 SC 32. A petition for leave was filed by the landlord before the Supreme Court.
Leave was granted and appeal of the landlord was finally accepted and the order of the first appellate authority was restored. The Supreme Court observed as follows:- "The alleged practice of the attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice (Exh. P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance protects the tenants against eviction and enhance ment of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice.
' We find that the respondent was clearly in default in paying or tendering the rents for April and May, 1970 and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was, therefore, liable to ejectment."
24. The Hon'ble Supreme Court of Pakistan has therefore, decided in the aforesaid Judgment that there was no plausible explanation for default. I see no illegality have been committed by the Rent Controller in not exercising jurisdiction in favour of the appellant. Following the law laid down by the Hon'ble Supreme Court, it may be observed that if there is an admitted default, the Rent Controller has to order ejectment of the tenant.
24. It is apparent from the decisions discussed above the parties cannot contract themselves out of the provisions of section 13(2)(i) of the Sind Urban Rent Restriction Ordinance or the provisions of the section 15(2)(ii) of the Sind rented Premises Ordinance, 1979, by establishing a different practice with regard to the mode of payment of rent.
' In the circumstances and the facts and reasons mentioned above, I uphold the impugned order and dismiss the appeal. The appellant is directed to hand over vacant possession of the demised premises to the respondent within four months from the date of this judgment.