1. ' This Second Appeal calls in question judgment, dated 16-5-1983 of learned IVth Additional District Judge, Karachi, whereby order ef ejectment, dated 31-3-1976 granted by learned 1st Rent Controller, Karachi under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 has been r eversed.
2. ' Briefly stated the relevant facts giving rise to this appeal are that appellants before me are legal representatives of c'eceased landlord and respondent is tenant (hereinafter to be referred as such). Abul Hassan filed application for ejectment against the tenant under section 13 of the . West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) on 30-3-1972 on the grounds of default and personal need. Tenement is residential and is situate in Soldier Bazar, Karachi. Landlord claimed rent at the rate of Rs, 40 p.m. On the basis of rental value assessed by the Taxation Authorities and attributed default to the tenant in the payment of rent since April, 1970. Abul Hassan landlord also claimed that he required premises in question for his own residence as he was living temporarily with his son in Karimabad. Written statement was filed in which allegations were denied. Keeping in view the pleadings of the parties the trial Court framed three issues with regard to the default, personal need and whether application was barred under section 14 of the said Ordinance. The last issue was framed because plea was taken by the tenant in the written statement that previously landlord had filed ejectment case in which the parties had compromised in consequences of which landlord recovered rent at the rate of Rs, 30 p.m. As such there were no arrears, hence landlord was not entitled to go behind the compromise and claim further increased rent. In the evidence landlord Abul Hassan examined himself and his son Abrar Hussain and one other witness Fazal Ahmad. On the other hand tenant examined himself. After assessing evidence and hearing the parties, the trial Court found issue No,1 in favour of landlord to the extent that default was committed in the payment of rent for the period from January, 1971 to May, 1971. Issue No,2 with regard to personal need was found in favour of the landlord. Finding on issue No,3 was negative and in consequence eviction was allowed.
3. ' Tenant went in the appeal which was allowed by learned IVth Additional District Judge, Karachi, vide judgment, dated 25-5-1978, whereby without discussing merits on the issues mentioned above, the case was remanded to the trial Court-for finding on additional issue proposed to the effect whether notice under section 30 of the Displaced Persons Act was served on the tenant or not. Parties were allowed to adduce evidence in respect of new issue and the trial Court was required to return the case again with finding on that issue. Against this decision Second Appeal No, 274/1978 was filed in the High Court which was disposed of vide judgment, dated 23-1-1983 of my learned brother Nasir Aslam Zahid, J., whereby by consent of the parties appeal was remanded to be heard by the First Appellate Court on merits for the reason that Mr. Khaliq Humayun, counsel for the tenant had frankly conceded that since in the previous rent case there was compromise between the parties as such there was fresh agreement and in the result notice under section 30 of Displaced Persons Act was not necessary. It would be pertinent to mention at this stage that before the filing of Second Appeal in the High Court mentioned above, appellant Abul Hassan died and the Second Appeal was filed by the legal representatives of Abul Hassan as is apparent from the judgment of the High Court, dated 23-1-1983, copy of which is available 'on the record. After the remand, in accordance with the direction of the High Court IVth Additional District Judge as First Appellate Court heard the appeal on merits and, vide his judgment, dated 16-5-1983 has allowed the appeal and set aside the impugned order of ejectment passed by the learend Rent Controller.
4. Aggrieved against this decision landlords have come once again in Second Appeal which is right now under consideration.
5. ' In this Second Appeal the findings of the two Courts below are in conflict with each other. Now so far the issue of default is concerned, record shows that originally the rent was Rs, 11 and the parties went into a case before the Court in which there was compromise and rent was increased to Rs, 30 p.m. Subsequently landlord claimed rent at the rate of Rs, 40 p.m. As Taxation Authorities had assessed rental value of the premises at Rs, 40 p.m. Landlord sent such notice, dated 22-6-1971 demanding rent at the rate of Rs, 40 p.m. But there was no response from the tenant, hence he filed application for ejectment on the grounds of default from April, 1970 till the date of application in March, 1972 and personal need. On the other hand tenant contended in the written statement that rent was increased from Rs, 11 to Rs, 30 p.m. By way of compromise and all the arrears were paid. It was further asserted that landlord stopped accepting rent from January, 1971 and the tenant sent money orders which were refused and then started depositing rent in the Court. In the trial Court statements of account were fi3ed by the parties and then tentative rent order was passed. In the evidence landlord Abul. Hassan claimed that tenant did not pay rent for six months before the filing of ejectment case from which this Second Appeal has arisen. Landlord deposed that tenant himself used to come and pay rent to him or to his son and receipts used to be issued by his son. Landlord further admitted that he demanded rent at the rate of Rs, 40 but the tenant refused and it was incorrect that on that account he stopped accepting rent at the rate of Rs,
30. Landlord also stated before the trial Court that he did not accept rent from the tenant in lump sums priodically. Landlord examined his son Abrar Hussain, who fully supported the landlord, on the ground of default.
6. ' In the evidence tenant on the ground of default took up the plea that landlord and his son used to collect rent from him periodically. Landlort: and h:p son suddenly stopped accepting the rent and wanted to charge him rent at the rate of Rs, 50 p.m. In the cross-examination tenant admitted, that there was address of landlord in Exh. 7 (receipt of rent) produced by him and he did not send money order on that address and further he did not go to that address to pay the rent to the landlord. Tha fact is not disputed by the tenant that he did not pay rent to the landlord from January, 1971 to May, 1971, which he attempted to send by money ,order Exh. 10 which was allegedly not accepted by the landlord and then he deposited the rent in the Court. To this extent the default is admitted by the tenant and the stand taken by him is that normally landlord used to accept rent from him periodically and the landlord or his son used to come to him personally for collection of rent. In support of the claim tenant has produced two receipts Exh. 7 and Exh.
8. Both these receipts are signed by Abrar Hussain. In each of these two receipts. Rent has been accepted for a total sum of Rs, ,10. Both these receipts do not help the tenant in his attempt to show that landlord was in the habit of accepting rent periodically because in both these receipts rent was accepted in view of compromise arrived at between the parties in the rent case which was pending at that time. Not only this but the last sentence of Exh. 7 is that next rent for April, 1970 would be due in May, 1970. Likewise last sentence in Exh.8 is that next rent for January, 1971 would be due in February, 1971. This clearly falsifies the stand of tenant and shows that intention that the rent was to be accepted every month when it was due.
7. ' On this point evidence produced by the tenant does not show that landlord was in the habit of accepting rent periodically and in lump sums. On the other hand evidence produced by the parties show that landlord had filed a rent case in which ejectment was granted and in the appeal the matter was compromised and the arrears were accepted. From this compromise no inference is permissible that landlord would not have cause of action if tenant failed to pay rent due according to law. Under section 13 of the said Ordinance, mandatory requirement of law is that the tenant must pay rent due by him in the manner specified therein. Tenant must discharge his legal obligation by paying rent regularly to avoid default. If tenant takes up the plea that landlord was in the habit of accepting rent periodically, burden to prove that shall lie upon the tenant. It may be mentioned here that default is a ground on which ejectment can be granted under the rent law and th tenant cannot be allowed to plead a practice which is contrary to th law. Even agreement between the parties which is aimed at whittlin down the provision of law cannot be pleaded. 12 reference can be mad to the cases of Abdul Rasheed v. Saleh Muhammad 1980 SCMR 506, Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601, Sh. Muhammad Hasan v. Mian Mahmood Ahmed Khan 1975 SCMR 35 and Mahbood Ali v. Abdul Manan and 2 others 1984 CLC 1201.
8. On the ground of default ejectmnt is properly granted in the instant case for the reason that the tenant has failed to produce any satisfactory evidence in support of his claim. Needless to say that it is a mandatory duty of the tenant to seek landlord and pay him rent every month without fail and if he does not accept then send mone order and if the rent is still not accepted then deposit it in the Court. In no circumstances tenant has to commit default. If default is committe then it is for the tenant to show with satisfactory evidence to convinc the Court that it was beyond his control. In the instant case n exception can be taken to the finding of the trial Court on the ground of default. So far the issue of personal need is concerned landlord Abul Hassan stated in his evidence before the trial Court that he was living with his son at Karimabad and that house consisted of two rooms only. His son was married and lived with seven children. His younger son was also living there aged about 20 years who was to be married. That accommodation of two rooms was insufficient for such a large family hence the landlord wanted the accommodation in question for himself and his family members. On this point landlord was supported in the trial Court by his son Abrar Hussain in whose house landlord lived and one other witness Fazal Ahmed whose daughter was to be married with the son of landlord but that marriage had to wait because accommodation available with the landlord or his son was insufficient. This issue was not seriously disputed by the tenant because he hasp not stated anything about it in his examination-in-chief before the trial Court. So on this ground claim of the landlord is unchallenged and unrebutted.
9. ' Mr. Khaliq Humayun. Advocate for the tenant contended that tenant had paid Taxes to the Government Department on behalf of landlord which had to be adjusted against the arrears. He had not taken any such plea before the trial Court otherwise such issue would have been framed. It was submitted by the learned counsel that he had taken such plea and had applied for additional evidence before the First Appellate Court but this point was not adverted to in the judgment of the First Appellate Court and no final order was passed in respect of that application. Perusal of record of the First Appellate Court shows that such application for additional evidence was dismissed by the First Appellate Court, vide order, dated 29-8-1977 on the ground that no such plea was taken by the tenant in the written statement before the trial Court.
10. ' For the facts and reasons stated above, I set aside the impugned order of the First Appellate Court and restore order of ejectment originally passed by the trial Court. However, I allow three months time to the tenant to vacate the premises instead of one month, allowed for the purpose by the trial Court. There will be, however, no order as to costs. In the result appeal is allowed.