' The facts giving rise to this appeal under section 21 of the Sind Rented Premises Ordinance, 1979 are that the appellants are the tenants of the respondents in respect of premises bearing No.26 situated on the third floor of the building known as 'Writers Chambers' at Dunolly Road, Karachi at the monthly rent of Rs.200 under a tenancy agreement dated 4-7-1962.
2. On 16-5-1974 the respondents filed a Rent Case against the appellants in the Court of XII Senior Civil Judge/Rent Controller on the ground that the appellants have failed to pay the monthly rent for the said premises since February, 1974 and also electricity charges and have thereby committed default in payment of rent and are liable to ejectment.
3. The learned Rent Controller after hearing the parties came to the conclusion that the appellants have committed default and as such he allowed the ejectment application and ordered eviction of the appellants.
4. Learned counsel for the appellants pleaded before me that there was a continuous practice between the parties to the payment of rent at intervals of 2 to 4 months in lump sum which made the appellants believe that the rent was not to be paid regularly every month. He, therefore, contended that the rent for the month of February, 1974 to April, 1974 was sent as per practice to the respondents by cheque dated 9th May, 1974 which was duly accepted by them on 21st May, 1974 and hence there was no deliberate default on their part. It was, in the alternative, also submitted that there being no tenancy agreement duly signed by the appellants, the appellants will be deemed to have committed default only if it is shown that the rent remained due for over sixty days after the rent had become payable. According to him, the rent for the month of February, 1974 was due on 9th May, 1974 and since the appellants had sent to the respondents a cheque dated 9th May, 1974, there was no default. He further contended that the ejectment case was filed male fide as the respondents wanted an increase in the rate of rent.
5. The learned counsel for the Respondents denied any such practice. He also repudiated the allegations about the agreement of tenancy or the filing of ejectment case mala fide.
6. Learned counsel for the appellants in support of his contention as to the constant practice of the payment of rent for 2 to 4 months in lump sum, has shown me Exhs. B/7, B/8, and B/9 which are the receipts of the payment of rent issued by the respondents in favour of the appellants. These receipts go to show that the rent and electricity charges were paid in lump sum for two, four and three months, respect ively, in the year 1972 and 1973. He, therefore, submitted that the appellants had sent a cheque dated 9-5-1974 towards the payment of rent for the months of February, March and April, 1974 to the respondents by Registered Post before the filing of the ejectment applica tion by the respondents against them or having any knowledge of the same. As such, there was no wilful default on their part. In support of the contention of practice, learned counsel for the appellants relied on the following cases namely, Mehrban Ali v. Muhammad Qasim PLD 1976 Lah. 1052, Muhammad Shafi v. Zahir Hussain PLD 1978 Lah. 862, Mohammad Siddiq v.
Abdul Rashid 1982 CLC 217 and Mohammad Anwar v. Syed Imam 1982 CLC 436.
7. All the four cases relied upon by the learned counsel for the appellants have been decided by the learned Single Judges of the High Courts of Lahore and Karachi. In the first case it was observed that:- "The mode of payment can be changed by 'practice' adopted by the parties....................................... If he had produced only one receipt showing the payment of rent on collective basis, the same may not have proved his case.
He has produced as many as 3 receipts showing that the rent was accepted by the landlord periodically after intervals. It is always open to a tenant to show in such cases that mode of payment of rent was changed contrary to the terms of the agreement arrived at between the parties. If it is proved to be so then it does not mean that such change cannot be taken into being by the consent of the parties. In such a case tenant can be under a genuine impression that since payment of rent is to be made periodically, therefore, there would be no default on his part if he pays rent after some intervals. In the present case the terms and conditions of tenancy, so far as the payment of rent is concerned had been changed by the conduct of the landlord himself who had been accepting rent periodically and who by his conduct gave impression to the appellant that if he pays rent even after some months, he would not commit any default."
8. In the second case learned Single Judge of the High Court of Lahore observed that-- "If there was any tacit agreement between the parties not to pay the rent in time on monthly basis, there would be no need for the appellant to tender the rent on monthly basis and there would be no refusal."
' In this case the learned Judge, referring to the observations of the Supreme Court as made in the cases, Syed Riaz All v. Shabbir Ahmed Khan 1971 SC 01 R 598 and M/s. Textile Company Ltd. v. Syed Jalilur Rahman and 7 others 1972 SCMR 384, was pleased to observe further that-- "The Rent Controller could, however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In such a situation the default might not be wilful and deliberate and the Rent Controller might not direct eviction; because it is discretionary with the Controller not to direct the eviction, in individual cases, despite the default having been proved. The conclusion that can safely be drawn from the, ruling of their Lordships is that although such a practice could not change the terms of tenancy nor the legal liability of the tenant to eviction could be affected by such conduct the same could be utilized for invoking the discretionary power of the Controller to decide against eviction in case the default is not wilful."
9.
In the third case of this Court, there was a consistent 'practice' of recovering rent in lump sum for the last several years which led the tenant to believe that the said practice was continuing. The learned Judge, therefore, observed that-- "before the tenant could be held to have defaulted in payment of rent in these circumstances in my opinion it was necessary to lead some evidence to show that the landlord had put up the tenant to a notice that the earlier practice of recovery of rent in lump sum at a time will not be followed in future. Admittedly no evidence was led by the appellant to prove these facts. On the contrary the appellant even did not produce the Rent Collector who allegedly went to recover rent from the respondent every month but the respondent allegedly did not pay the same."
10. In the fourth and last case, cited above, the order of the learned Rent Controller refusing ejectment was upheld as the landlord on a number of previous occasions was shown to have accepted the rent periodically when otherwise for a large number of years it was paid regularly. In this case the failure was only for three months when admittedly the appellant/tenant made efforts to send the rent by money order when he had no knowledge that an application for ejectment had already been filed.
11. Learned counsel for the respondents in rebuttal to the contention of 'practice' as pleaded by the appellants, submitted firstly, that the tenancy agreement stipulated that "each monthly rent shall be payable within the first five days of the succeeding month" and the appellants' attention was drawn time and again to the said term of the tenancy agreement; secondly, the respondents used to send their bill to the appellants every month regularly, generally on the last date of the month for which the rent was payable; thirdly, the respondents had to issue reminders from time to time for payment of rent which had fallen due and fourthly, the respondent disapproved on a number of occasions the 'practice' adopted by the appellants of sending cheques for the payment of accumulated rent for several months.
12. The above-said submissions of the learned counsel for the respondents are fully supported by the evidence produced in the case. There is original tenancy agreement on record. There are bills on record issued by the respondents against the appellants for the monthly rent regularly. There are letters and reminders on record asking for the payment of the rent due. For repudiation of the alleged 'practice' my attention was invited to letters, dated 15-9-1972, 15-1-1973, 23-5-1973, 25-7- 1973, 21-8-1973 and 15-9-1973 Exhs. 10/1, 10/2, 10/3, 10/4, 10/5 and 10/6, respectively written by the repondents which were duly received by the appellants. These letters clearly reveal that the practice of paying accumulated rent as adopted by the appellants was not at all approved by the respondents and that the appellants were warned, more than one, that the said practice will no longer be tolerated by the respondents and that the appellants would be ejected if the practice continued any more. For brevity's sake to quote the contents from only one such letter dated 20-9-1972 out of the six letters, as referred to above,-- "We refer you to our Bill No.4427 and find not to have received your cheque for Rs.636.
' The rent and electricity charges for 3 months have been accumulated, a position which we are not prepared to drift any longer.
' We, therefore, request you to please see that a cheque for Rs.636 is sent to us immediately otherwise we shall be constrained to take necessary legal steps to recover the amount and to eject you from the premises."
(Exh.10/1), is sufficient to prove that the 'practice' of sending the rent by cheque in lump sum was not approved or consented to by the respondents. In fact, the Respondents in the letters, as aforesaid referring to the term of tenancy agreement relating to the payment of rent by the fifth of each succeeding monh, have taken specific objection to appellants' practice of paying rent for several months in lump sum. In the last letter (Exh.10/6) objection was taken on sending payment of even two months' rent in lump sum.
13. Learned counsel for the respondents in support of his contention has relied on the following cases namely, Abdul Rashid v. Saleh Muhammad 1980 SCMR 506 and Mahboob All v. Abdul Manan 1984 CLC 1201. I quote with respect the following observations of the Supreme Court as laid down in the first case cited above:- "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 whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."
14. The Supreme Court while making the above observations relied on its earlier decisions reported as Syed Riaz Ali v. Shabbir Ahmed Khan 1971 SC 11 R 598, Muhammad Hasan & Co. v. Mahmood Ahmed Khan 1975 SCMR 355 and M/s. Tar Muhammad Janoo & Co. v. Taher All and others (Civil Petition No. K/16 of 1979, afterwards reported as 1981 SCMR 93, where the tenant/petitioner had raised the same contention, as in the present case before me. While dismissing the petition the Supreme Court in the last case observed as follows:- "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleased or affect the liability of the tenant to pay the rent unless the landlord comes and collects.it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazard, of his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
15. In the second case relied upon by the learned counsel for the respondents, a Single Judge of this Court, following the above-said decisions of the Supreme Court alongwith two others, reported as Mohammad Hameedullah v. Feroze Ahmed and others 1982 SC 1t R 442 and Mrs. Alima Ahmed v. Ameer All PLD 1984 SC 32 made the following observations:-- "It is evident that consistent view of the Supreme Court has been that a tenant cannot absolve himself from the payment of Rent in terms of the Rent Ordinance on the basis that the landlord had accepted accumulated rent previously a few times. If the tenant allows accumulation of rent on the assumption that the landlord would accept the same as he had done previously, he does so at his peril of being 'ejected. In this view of the matter, the appeal has no merit and, therefore,it is dismissed."
16. After going through the entire case-law, referred to above, I am of the considered view that the Sind Urban Rent Restriction Ordi nance, 1959 or for that matter the Sind Rented Premises Ordinance, 1979 lay down a certain mode of payment of rent and no one can legitimately contract out of the provisions of the said Statutes. If, however, the landlord and tenant are proved to have established a practice of the payment of rent contrary to the mode of payment prescribed in the Statute, that may furnish a valid reason in appropriate cases, to the Rent Controller to hold it as mere default and not wilful default, provided the conduct of the landlord has led the tenant to reasonably believe that the adopted practice will not entail ejectment. A But, merely the tenant's one-sided act or series of acts, termed as 'practice' of the payment of rent in lump sum at intervals, without the tacit approval or consent of the landlord, is not sufficient to draw an inference for the exercise of discretion in favour of the tenant to condone the delay, so as to bind the parties as an agreed mode of payment of rent deemed to have been incorporated in the tenancy agreement modifying the original term. It will not, therefore, be open for the tenant to raise such a plea in defence of his delayed payment of rent, which will be taken to be a wilful default in the eye of law. Applying the above test to the present case it is evidently clear that the appellants were persistently negligent in payment of rent on the due dates, in spite of exceptions taken by the respondent on the so-called practice of the appellants' making payment of accumulated rent in lump sum. The documentary evidence produced in the case leaves no room for doubt that rent was to be paid every month. No practice giving presumption to the contrary can be established. The respondent's accepting rent in lump sum for several months, while taking exception on several occasions, cannot justify the appellants to carry an impression that the agreed term or the legal position as to the mode of payment has been altered by it. Thus the whole argument of the learned counsel for the appellants based on so-called 'practice' is devoid of any legal force.
17. The second contention raised by the learned counsel for the appellants contains two parts: firstly, whether the tenancy agreement (Exh.2) has not been signed by the appellants as lessees and secondly, what is the time for payment of monthly rent according to law. With regard to the first part, counsel for the appellants relied on the deposition of witness No.1 (S.M.Younus) for the respondents who after seeing Exh.2 replied in the cross-examination: "It is correct, the said agreement does not bear signature of lessees." My attention was, however, invited by the counsel .for the respondents to the deposition of Witness No.1 for the appellants (Mohammad Suhail Ahmed Abbasi), who stated in his cross-examination: "I see Exh.2. It bears the stamp of my firm under the signature of T.M. Yousuf, as partner of the firm." By looking at the tenancy agreement (Exh.2) it is apparent that the appellant's partner, by mistake, put his signatures above the word "lessors", thereby leaving as blank the place reserved for signature of the "lessees". The lessors (the respondents) signed at the left side of the signature of the appellants. T.M. Yousuf who signed for the appel lants as a partner, is the same person who also signed on behalf of the appellants Exh.14 which is the letter of acknowledgment of possession of the premises in question, at the time of the commencement of tenancy. In view of these facts the contention of the appellants' counsel that the agreement of tenancy does not bear their signature is dishonest and falls flat.
18. With regard to the second part of the contention it is argued that the rent is payable within sixty days after the rent becomes due for payment, as provided in section 15 of the Sind Rented Premises Ordinance, 1979, and the rent becomes due not later than the 10th of the month next following the month for which it is due. Therefore, according to the counsel for the appellants, the rent shall be payable, in this case, within seventy days for the month for which the rent was payable. That is, the rent for the month of February, 1974 could be paid by 9th of May, 1974. The cheque dated 9th May, 1974 having been issued by the appellants to the respondent, they absolved them selves from the liability under the law and cannot be ejected from the premises in question.
19. As far as the agreement of tenancy is concerned, it has been established, for the reasons stated above, that there was a written agreement of tenancy duly signed by the parties which, inter alia, provided that "each monthly rent shall be payable within the first five days of the succeeding month". The said tenancy agreement was only for 11 months which expired long before the ejectment proceedings were started. On the expiry of the said tenancy agreement the appellants became a statutory tenant and so his case was governed by clause (i) of section 13 (2) of the Sind Urban Rent Restriction Ordinance, 1979 which provides that if there is an agreement of tenancy between the parties, the rent is to be paid within 15 days of the date fixed in the agreement and in case there is no such agreement if the tenant failed to pay rent within sixty days from the period for which rent was payable, he becomes liable to eviction. The first part of this provision will not be applicable to the facts of this case as there was no tenancy agreement subsisting at the time of the filing of application for ejectment.
For this view, reference may be had to the case reported as (1) Mohammad Yousuf v. Abdullah PLD 1980 SC 298 and Naimat Siddiqui v. Farooq Umar 1984 CLC 969.
20. The plea of the learned counsel for the appellants that in addition to sixty days, as aforesaid, they are entitled to ten days more as provided in section 10 of the Sind Rented Premises Ordinance, 1979 is not tenable in law. The Sind Rented Premises Ordinance, 1979 was promulgated on 21st November, 1979, Section 27 of the said Ordinance provides as follows:- "27.Repeal.--(1) The Sind Urban Rent Restriction Ordinance, 1959, is hereby repealed.
(2) All appeals and such cases before a Controller as are fixed for arguments or judgment which have been filed under the Ordinance mentioned in subsection (1) shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance.
(3) All other cases instituted under the Ordinance mentioned in subsection (1) and which immediately before the commencement of this Ordinance were pending before a Controller shall,notwith standing any orders made otherwise by the Controller, be continued and disposed in accordance with the provisions of the Ordinance and any proceedings taken or orders made in any such cases as aforesaid shall for all purposes have effect as proceedings taken or orders made under this Ordinance.
(4) Notwithstanding the provisions of subsection (2) all orders made in pursuance thereof and order made under the Ordinance mentioned in subsection (1) in any proceedings before the commencement of this Ordinance shall be deemed to have effect as an order under this Ordinance and be executed in accordance with the provisions of section 22."
On the plain reading of subsection (2) of section 27 of the Sind Rented Premises Ordinance, 1979, it is clear that a case which has been filed under the Sind Urban Rent Restriction Ordinance, 1959 before the Controller and is fixed for arguments shall, notwithstanding the repeal thereof, be disposed in accordance with the said Ordinance i.e Sind Urban Rent Restriction Ordinance, 1959. If an authority is needed the same can be found in a D.B. judgment of this Court reported as Abdul Rahman v. Haji Mir Ahmed Khan and another PLD 1982 Kar. 532 which has been upheld by the Honourable Supreme Court's judgment PLD 1983 SC 21. This ejectment case was filed under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The title of the Ordinance was subsequently amended as Sind Urban Rent Restriction Ordinance, 1959 by P.O. 1 of 1974. On the day of the promulgation of the Sind Rented Premises Ordinance, 1979 the ejectment case was pending before the learned Rent Controller. Oh perusal of the Diary Sheet dated 11-11-1979, it is found that the case was put off to 27-11-1979 for written arguments.
21. In view of the fact that the case was fixed for arguments on 21st November, 1979, the day of the promulgation of the Sind Rented Premises Ordinance, 1979, the provisions of the Sind Urban Rent Restriction Ordinance, 1959 will be applicable to this case and the rent for the month of February, 1974 could be paid by 1st of May, 1974. It is, however, pertinent to note that although the cheque has been stated to be dated 9th May, 1974 but the same was received by the respondents on 21st of May, 1974 through Registered Post. No registra tion receipt has been produced by the appellants showing the date of despatch of the said cheque nor the counter-foil of the Cheque Book has been produced.The application for ejectment was filed on 16-5-1974. The rent by cheque, referred to above, for the month of February, 1974 appears to have been sent subsequent to the filing of the application for ejectment. The. probability of knowing the filing of the same at the time of sending the cheque cannot be ruled out, in the circumstances of the case. It also appears that the date put on the said cheque as 9-5-1974 was to avoid the consequence of default as, according to the appellants counsel, the last date for the payment of the rent for the month of February was the 9th May, 1974, which, however, is not a correct position in law. Subsequent payment of rent by the appellants will not wash out the effect of default in the payment of rent. Reference may be had to Syed Shafiuddin v. Abdul Hakim Khan PLD 1978 Kar.
149. The appellants, therefore, cannot be said to have saved themselves from the consequence of default as contemplated by the provisions of section 13(2)(i) of the Sind Urban Rent Restriction Ordinance, 1959.
22. The last contention as to mala fide put forth by the learned counsel for the appellants is also without force. It is apparent on the record that the respondents wanted an increase of Rs.10 only in the rent on account of increase of taxes by the Karachi Municipal Corporation which they were entitled to increase under section 9 of the Sind Urban Rent Restriction Ordinance, 1959. The notice was sent to the appellants by the respondents for payment of the same by their letter, dated 17-10- 1972 Exh.11/1. The appellants paid no heed to it and kept on making the payment at the rate of Rs.200 only as rent originally agreed. The demand cannot, in the circumstances, be held to be illegal or mala fide as contended by the counsel for the appellants. For this view, I am supported by a decision of this Court reported as Punjab Hardware and Machine Tools Karachi v. Wazir Ali PLD 1976 Kar.
233. In any case, the appellants were not absolved from the liability to pay the rent within the time prescribed in clause (i) of section 13(2) of the Sind Urban Rent Restriction Ordinance, 1959 as there was no justification for withholding the rent, notwithstanding the demand of the respondents' additional rent of Rs.10 as the tax had been increased at the rate of 5%. Furthermore, the plea for withholding the monthly rent is not available to the appellants as after the receipt of the letter, dated 17-10-1972 (Exh.11/1) for the payment of the increased tax, they paid and continued to pay the rent at the original rate of Rs.200 per month felling due thereafter till January, 1974, though at intervals.
23. The upshot of the above discussion is that the appellants have committed wilful default in the payment of rent and the circumstances of the case do not justify the exercise of discretion in their favour. With the result that no interference in the judgment of the Controller is called for. The appeal is, therefore, dismissed with costs.