1. ' This second appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959, is directed against the judgment dated 27-9-1980, passed by the II Additional District Judge, Karachi, whereby he reversed the order of the learned Rent Controller and directed the appellants to hand over the vacant possession of the premises to the respondent. The appellants are landlords of two shops bearing Nos.8184 and 4/4A situated in Lakhani Mansion, Princess Street, Nankwara, Karachi, and respondents are their tenants on monthly rent of Rs.56. On 14-9-1968 the respondents filed application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 in which they stated that appellants are in arrears of rent from 1-1-1968 to 31-8-1968 amounting to Rs.448, therefore, they committed wilful default and are liable to be ejected. The appellants in their written statement denied the allegations of default and stated that they are tenants since so many years and the rent has always been collected on yearly basis or after six months. Their contention in the written statement is that on receipt of notice they sent cheques for a period of one year, cashable in the month of December 1968 because this was the practice but now the appellants refused to accept the cheques. The learned Rent Controller on the pleadings of the parties framed the following Issues:
(1) Whether the respondent collected rent from the appellant yearly or six-monthly under the practice of Collector of rent?
(2) Whether the appellant is a defaulter?
2. ' The learned Rent Controller held that the appellants have committed no wilful default, thereby he dismissed the rent application. The respondents filed an appeal against the order of the Rent Controller. The appeal was accepted and the learned II Additional Sessions Judge, reversed the order of the Rent Controller and ordered the enactment of the appellant as stated above.
3. ' Before the Rent Controller the appellants examined Accountant of the respondent Muhammad Ismail Exh.15 (a) and other three witnesses namely Salahuddin Exh.30, Bahadur Khan Exh.33 and Usman Exh.36. On the other hand, the respondents examined their Managing Partner Haji Umer Exh.5. The plea of appellant, that the rent was collected periodically through their rent collector. The appellant therefore summoned the rent collector of the respondents and their record. The receipts Exhs.27, 28, 37, 38, 39 and 40, which show that rent was being collected periodically and rent collector of respondent admitted that rent for whole year was accepted by them vide Exhs.37, 38, 39 and 40. The respondents before the Rent Controller has failed to produce a single receipt or documents by which they have accepted the monthly rent. The rent tendered by the appellants as mentioned above was being accepted by the respondents. As soon as the respondents sent notices to the appellants they sent post-dated two cheques Exhs.13 and 14, dated 31-5-1968, with a reply that since they were collecting and accepting yearly rent the said two cheques were being issued. These two cheques were returned by the respondents. In these circum stances the learned Rent Controller relied on a case of Sajad Ali Khan and two others v. Pir Bux G.Muhammad PLD 1972 Kar. 220 wherein it was held that the landlord was in habit of accepting of arrears of rent periodically from the tenant and in lump sum, therefore, there was no wilful default on the part of tenant. The rent application of the respondent was dismissed by the learned Rent Controller by an order dated 27-9-1975. The learned II Additional Sessions Judge, in first appeal has come to the conclusion that there is no written-agreement between the parties, therefore, tenants were bound to pay rent every month. He has observed that there is no explanation for sending two post-dated cheques dated 31-12-1968, therefore, the appellant is liable to be evicted. Muhammad Umer, Exh.5, is Managing Partner of Respondents and co-owner of "Lakhanay Mansion". He has stated that appellants are their tenants and they had not paid rent with effect from 1-1-1968, therefore notice was sent and appellant on receiving such notice, sent two post-dated cheques being arrears and future rent for the year 1968, which respondents refused. After filing Rent case another notice was sent. He admitted that their Rent Collector used to collect the rent and he has denied the suggestion that their Rent Collector used to collect the rents periodically after 6 months or year. He admits that appellants are tenants since 1961.
4. ' Muhammad Ismail Exh.15(a) stated before the Rent Controller that he is Accountant of the respondent/landlords since 1966 and rent for the year 1966 amounting to Rs.672 was paid by cheque to the respondent rent of the year 1967 was received by cheque on 19-1-1968.
5. ' Salehuddin Exh.30, Officer of Habib Bank Napear Branch has produced original cheque of Rs.672 dated 19-1-1968, in favour of Lakhanay Brothers, credited to their account. He has produced certificate as Exh .32.
6. ' On 13-5-1968, the respondent wrote a letter by which they demanded rent for four months. The letter is at Exh.6, Extract of the leltter is as under:- ' That you are a tenant of above-mentioned two shops tenament of our Building know as "Lakhanay Mansion" at a monthly rent of Rs.56 per month for both the tenaments accordingly to calendar month. You are refusing to pay the rent to our Rent Collector every time when he comes to collect the rent from you. Conse quently you are in arrears of four months rent from 1-1-1968 to 30-4-1968 of Rs.220 and hence you are defaulter."
7. ' The appellants on 7-6-1968 replied that they are not defaulter and ready to make payment for the whole year as usual and two separate cheques for Rs.336 each being rent for one year for each shop separately were sent with letter Exh.7.These cheques were post-dated to be paid on 31-12- 1968, on the plea that rent for the year in payable on that date. These cheques were returned by respondents. In reply the respondent demanded rent for 7 months for the period from 1-1-1968 to 31-7-1968 vide letter Exh.8 dated 9-8-1968, once again appellants sent four cheques under protest to the respondent being the arrears and future rent for the year 1968. These cheques are Exh.23 dated 7-9-1968 for Rs.224 Exh.24 dated. 7-9-1968 for Rs.224 being rent of two shops for six months and two other cheques dated 23-11-1968, for Rs.112 each are at Exh.25 and Exh.26. These cheques were returned by the respondent on the ground that rent case has already been filed.
8. ' Respondents have not examined any witness in support of the rent case and not even own Rent Collector who used to collect the rent on their behalf.
9. ' On the other hand appellant summoned Muhammad Ismail their Accountant and produced entire record and relevant documents showing that rent was being collected yearly. Further appellants produced Rent Receipts Exh.27 and Exh.28 in their support showing that rent was being received in lump sum even in the years 1964 and 1965.
10. ' Mr. I. M. Petal learned counsel appearing for the appellant has contended that appellant has not committed wilful default and there was understanding between the appellant and Respondent about the mode of payment of the rent therefore rent was being paid yearly. The appellant tendered the rent according to practice. He has further submitted that the premises are commercial and could fetch huge amount of good-will (Pugree) therefore the respondent has created ground for eviction.
11. ' He has referred to cases reported in 1975 SCMR 355, 1983 CLC 1990.
(i) Regarding case Sh.Muhammad Hussain & Co. v. Mehmood Ahmad Khan 1975 SCMR 355 In this case the practice grew up and tenant paid rent in a lump sum after every six months or one year but tenant failed to prove that practice and had not pleaded in written statement therefore, it was decided such contract was contrary to the provisions of section 13(2) of the Ordinance.
(ii) The facts of the case of Burma Oil Mills Ltd. v. Amir All 1983 CLC 1990, are that the tenant in their written statement took the stand that rents had been billed and collected therefore it was asserted that an implied contract had been established between tenant and landlord where under the said firm used to send their bills of rents for three months or six months and the tenants used to make payments immediately.
12. ' It was held that the Rent Controller exercised discretion properly not evicting the tenant although default was proved. In this case Justice B.G.N.Kazi has discussed the entire case-law as referred above.
(iii) A copy of order of Supreme Court dated 24-1-1981 in Civil Petition for Special Leave to Appeal No.K-5/81 M/s. Abdul Rehman Abdul Ghani v. His Holiness Dr.Syedna N.Burhanuddin has been filed.
13. The leave to Appeal was granted and My Lord Justice Muhammad Haleem, C.J.'s observation are as under:- "In seeking leave to appeal the petitioner contended that in the absence of the demand and refusal to pay the rent and the collection of rent periodically in lump sum, eminently shows that the respondent condoned the default and accordingly the High Court was in error in interfering with the exercise of discretion by first appellate Court relying principally on Dr.Syed Wails Ali Tirmizi v.
14. Mst. Liaquat Begum 1980 SCM R 601. This con tention needs consideration as the facts in the cited case are distinguishable. Accordingly we grant leave to appeal to the petitioners-Security for costs Rs.1,000 status quo as to posses sion."
15. ' Mr.Haroon Ishaque Advocate for the respondent has submitted that appellant has committed default and there was no such practice or agreement for payment of rent in lump sum. He has argued that it is duty of every tenants to pay rent monthly. He has relied on the cases 1973 SCM R 598, 1980 SCM R 506, 1981 SCM R 93 andPLD 1984 SC 32 in these cases it has been held that practice of landlord of collecting accumulated rent is of no avail in explaining delayed it is duty of tenant to pay rent according to law.
16. ' It is apparent from the decisions referred as above that parties could not contract themselves out of the provision of section 13(2)(i) of the Ordinance by establishing a different practice with regard to the mode of payment of rent, but it is significant to note that there is not a single instance of rent being paid monthly and no documentary evidence e.g. counterfoil or receipt book etc. have been produced by the respondents to show that they have ever received rent monthly.
17. ' The respondent has taken plea in written statement as well as led evidence and also immediately on demand sent two cheques being rent for the year 1968, in good faith on the presumption that rent is payable in December, 1968. Not only this but subsequently tendered rent by sending four cheques which were returned. This shows that there is no deliberate or wilful default.
18. ' The circumstances that commercial value of shops have increased the possibility that landlords might create ground for default cannot be overlooked and protection to the tenants who are doing business since several years is also required to be considered. However, each case to be decided in own merits. This case from the very start the practice was that tenants paid rent after a year it is therefore to be presumed that landlord condoned the default. Although the landlord under the law cannot vary the mode of payment of rent as provided in the Ordinance.
19. ' The Rent Controller on the evidence before him held that practice of payment of rent was established therefore, he exercised discretion and came to the conclusion that appellant cannot be termed as defaulter.
20. ' I am also of the view that appellants have not committed wilful default and is not liable to be evicted and Rent Controller has exercised his discretion. I, accordingly allow the appeal and set aside the order of II-Additional District and Sessions Judge, Karachi (First Appellate Court) passed on 27-9-1980, and restore the order of the Rent Controller dated 9-8-1975, with the result that respondent's rent application stands dismissed with no order as to costs.