1. ' This second appeal is directed against the impugned judgment dated 24-4-1982 of learned Vlllth Additional District Judge, Karachi, whereby appeal has been allowed and order of eviction passed by the learned Rent Controller has been set aside.
2. ' Briefly stated the relevant facts giving rise to this second appeal are that appellant namely S.M.
3. Naqi is landlord and would be referred as such hereinafter and UNIMPEX (which is a firm) is respondent before me and is tenant would be referred as such hereinafter. The tenement in question is Room No,19 in "Writers Chambers" Dunolly Road, Karachi. Tenancy came into existence way back on 1st June, 1957 when an agreement of lease was executed between attorney of joint landlords and tenant. For UNIMPEX (tenant) the agreement was signed by Turab Ali as partner. This agreement which is Exh.2 on the record of the Rent Controller was for eleven months and it is provided in paragraph 5 thereof that after the expiry of eleven months of the lease, the lessees will continue to remain as tenant of the said premises as long as they paid regular monthly rents but in case the lessees are desirous of vacating the premises, they could do so upon giving to the Lesser notice in writing of not less than three months before their vacating the said premises. The agreement contemplated payment of monthly rent within first five days of the succeeding month.
4. Other admitted facts are that this agreement was not registered and also was not renewed after expiry of eleven months. On 7-11-1975 landlord filed an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 on the ground of default in the payment of rent for three months i.e, August, September and October, 1975. Rent payable at the rate of RS,222.59 p.m. Is not in dispute. Tenant filed written statement and denied the allegation of default and took up the plea that attorney or Rent Collector of the landlord did not come to collect the rent in the months of September and October, 1975 as usual with the result that the tenant sent the rent for three months for August, September and October, 1975 by money order which was refused by the landlord. Another objection was taken that Messrs UNIMPEX was not a partnership firm but was a proprietary concern, whose owner is Mr. Turab All hence ejectment application was filed against wrong party but subsequently this objection was not carried further and pressed into service perhaps, for the reason that as stated above Exh.2 is signed by Turab Ali as partner of UNIMPEX.
5. Tentative Rent Order was passed on 5-2-1976 and subsequently issue with regard to default was framed. In the evidence landlord examined himself and reiterated the fact that the tenant defaulted in the payment of rent for three months as stated above and denied the fact that rent used to be collected by Rent Collector on his behalf. He further stated that tenant used to send rent by cheques. Landlord produced tenancy agreement Exh.2, letters of tenant Exh.3 to 7 and notice of the counsel of the tenant addressed to the counsel of landlord Exh.8.
6. ' As against this tenant examined Turab Ali, who deposed that landlord was in the habit of collecting rent in lump sum periodically for which purpose attorney of the landlord used to come.
7. Attorney of the landlord did not come to collect rent for September and October, 1975 which he sent through money order in November, 1975 but the same was refused. He produced receipts and money order coupon Exhs.27 and 28. The tenant could not produce any receipt signed by Muhammad Deen, attorney of the landlord as such failed to prove that rent used to be collected by attorney of the landlord. Tenant produced receipts Exhs.16 to 25 that accumulated rent was paid on these occasions for more than one month. Tenant also examined one other witness by name Muhammad Ayub who supported the tenant in the assertion that attorney of landlord used to come and collect the rent periodically after every 2 or 3 months. Attorney did not come to collect the rent for the period of default alleged and the rent was sent by money order. He gave the name of the attorney as Muhammad Deen. He admitted in the examination in-chief that he was employee of the tenant. The tenant closed his side.
8. ' It is evident from Exh.8 on the record that there was a dispute with regard to the ownership of the property and subsequently on 11-4-1960 Arbitrator gave his award which was made rule of the Court on 29-8-1961 and the present landlord S.M. Naqi became owner of the second floor of the building of Writers Chambers together with portion on the ground floor to the exclusion of otheRS, Consequently landlord became sole owner of the tenement in question also. Previously rent used to be paid of the tenement in question to S.M. Yousuf but after the receipt of notice from the landlord on 18-9-1961, tenant started paying rent to the landlord at the rate of RS,222.44 p.m. Exh.8 is in fact reply notice dated 26-10-1961 from Advocate of the tenant addressed to the Advocate of the landlord. Further Exhs.3 to 7 are letters of the tenant showing payment of rent being made to the landlord by way of cheques.
9. ' The learned Rent Controller assessed the evidence and came to the conclusion that according to the agreement Exh.2 rent was payable by fifth of each month hence parties would not be allowed to produce evidence contrary to the terms of the agreement which is in writing. He further observed that it was the duty of the tenant to seek landlord and pay him the rent every month without fail. Plea of the tenant about collection of rent by landlord periodically was not accepted. In the circumstances the learned Rent Controller gave finding that default is established and consequently he passed order of eviction.
10. ' Appeal against the order of eviction has been allowed by the learned Additional District Judge vide impugned judgment against which the present second appeal has been filed. The First Appellate Court is of the view that tenant has been able to produce several receipts which clearly show that landlord in the past has accepted rent in lump sum, hence in accordance with the practice prevailing between the parties he sent the rent for two months which was refused and then he sent it through money order which was also refused by the landlord. In the circumstances it was held that default for two months in the payment of rent was not deliberate or willful but was due to wrong impression given to the tenant that rent was to be collected by the landlord or his attorney or Rent Collector.
11. I have heard learned counsel appearing for both parties at length. The only point involved and agitated before me is whether there was practice between the parties that landlord collected and accepted rent periodically in lump sum and on that ground default should be condoned or not.
12. Default alleged is for three months i.e, August September, and October, 1975. Attempt was made to send the rent to the landlord by the tenant vide money order coupon and receipt Exhs.27 and 28.
13. Receipt Exh.27 bears date of 19-11-1975. Money order coupon Exh.28 shows that landlord refused to accept the rent. Tenancy started with execution of agreement of lease which is Exh.2. This agreement was executed on First June, 1957. This agreement is signed by Turab All on behalf of tenant and by one of the joint landlords of the property for himself as well as attorney for otheRS, At that time property was owned by several landlords including the present landlord. This agreement admittedly was for eleven months and after expiry was not renewed. Provision was made in this agreement for continuation of the tenancy if the tenant continued to pay rent before fifth of each succeeding month. Present landlord became exclusive owner of the tenement in question on 29-8- 1961 when award of Arbitrator became rule of the Court. Such intimation was given to the tenant and the tenant made a reply through his counsel which is Exh.8 on the record. In the circumstances no reliance can be placed on agreement of lease Exh.2 for the reasons A firstly that it was not registered and secondly that it was for eleven months which had expired and was not renewed and thirdly that continuation of tenancy therein as provided could not be protected because at that time there was a joint ownership of landlords who were jointly party to the agreement and the present landlord became exclusive owner of the tenement in question subsequently. Fourthly in the circumstances stated above tenancy may continue but terms and conditions incorporated in the agreement Exh.2 would not be binding and the tenant would be deemed as statutory tenant after expiry of eleven months of unregistered agreement of lease. Such unregistered agreement after expiry of eleven months can not be deemed as agreement o tenancy as contemplated under section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In the circumstances tenant becomes entitled under the law to pay rent within sixty days from the period for which the rent is payable. In this way rent for August would b payable after the expiry of August and would be paid by the tenant within sixty days from that date. So sixty days would start from First September, 'hence rent for August would be payable in November. In this case rent for August, September and October, 1975 was sent together by money order on 19-11-1975. Delay of 19 days can be treated as technical and unintentional.
14. ' So far the alleged practice of accepting the rent periodically is concerned tenant has produced as many as ten receipts which are Exhs.16 to 25. Exh.16 shows that rent for two months November and December was accepted in 1969. Exh.17 shows that rent for two months was accepted on 30-12- 1965. Exh.18 shows that rent for two months was accepted in 1966Exh.19 shows that rent for two months . Accepted on 24-7-1965Exh.20 shows that rent for two months accepted on 9-9-1964Exh.21 shows that rent for two months accepted on 15-3-1963Exh.22 shows that rent for three months .
15. Accepted on 17-1-1963Exh.23 shows that rent for four months accepted on 18-9-1962Exh.24 shows that rent for nine months and accepted on 15-6-1962Exh.25 shows that rent for two months was accepted on 15-6-1962.
16. ' Mr. Muhammad Ali Jan, Advocate for the landlord argued before me that the present landlord became sole owner of the tenement in question to the exclusion of the other partners after the award of Arbitrator became rule of the Court on 29-8-1961 and till the matter was pending because of dispute over the ownership between the partners the rent had accumulated and was paid to the present landlord by the tenant on 15-6-1962 for nine months which started after the landlord became sole owner in the month of August, 1961, this accounts for RS,2,000 as rent for nine months.
17. After that on a few occasions landlord did accept rent for two months or three months together but these were acts of indulgence on the part of the landlord to condone the delay and were never meant to give an impression to the tenant that the rent would be collected periodically in lump sum. It was further submitted by the learned counsel that in the receipts produced by the landlord the last receipt is Exh.16 which shows rent for two months accepted in the year 1969. After December, 1969 till 17-11-1975 when ejectment application was filed, tenant consistently and regularly paid rent every month. Exhs.3 to 7 are letters written by the tenant enclosing cheques showing monthly payment of rent. Further Exh.11 to 15 are letters written by attorney of the landlord showing that insistence was made by the landlord for payment of monthly rent which became due. This shows landlord emphasized for payment of monthly rent as such. Notwithstanding this fact that payment of rent was accepted in the past by the landlord on several occasions in lump sum and he further emphasized on payment of rent every month, it cannot be disputed that the tenant even otherwise remains statutory tenant and has full cover of section 13 (2) (i) of the Urban Rent Restriction Ordinance, 1959 and is entitled to pay rent within sixty days from the period for which the rent is payable because of the reasons I have stated already above. In any case I am impressed by the fact that this is a very old tenancy starting from the year 1957 and even the present landlord acquired exclusive ownership of the tenement in question in the year 1961 and the tenant has been making payment of rent regularly.
18. ' For the facts and reasons stated above I hold that there was no practice between the parties of accepting rent periodically in lump sum and further that tenant is statutory tenant and default in the payment of rent for some days can be considered as technical and unintentional. I, therefore, maintain the impugned judgment of the 1st Appellate Court, whereby order of eviction passed by the learned Rent Controller has been set aside. In the result appeal is dismissed and there will be no order as to costs.