The dispute in this second appeal under the West Pakistan Urban Rent Restriction Ordinance (hereafter called the said Ordinance) relates to a shop owned by the appellant which he had leased to the respondent at a monthly rent of Rs.
19. The respondent was admittedly not regular in the payment of rent and as he had not paid rent from April 1952 to December 1963 on 27-1-1964 the appellant filed an eviction application against him under section 13 of the said Ordinance for his ejectment on the ground of non-payment of rent. The respondent contested the application but his only plea was that the appellant "always said that he wants accumulated rent for many months so that it may be a good lump sum and he did not like petty amount of Rs. 19 every month."
The appellant examined himself in support of his claim and said in his evidence: "I used to visit the opponent for realisation of rent but he did not pay rent . . . . . He was not regular in payment of rent."
He admitted however in his cross-examination that the respondent used to pay him rent in lump sums but he denied that he had agreed to any practice of payment of rent is lump sums. The respondent also examined himself, and, he said in his evidence that the applicant allowed the rent to accumulate for long intervals of about 10 to 12 months. In support of his plea, he also examined his nephew, who was working with him, and he said that the appellant used to receive payment of rent in lump sums. Although the respondent did not clarify in his evidence the amount of arrears due from him at the date of the eviction application, it is admitted before me that he had not paid rent for 11 months, therefore by his order dated 25th November 1966, the learned Rent Controller took the view that the burden of justifying this default was on the respondent and as he did not believe the evidence of the respondent he decreed the appellant's claim for ejectment.
2. Aggrieved by this order, the respondent filed an appeal against it in the District Court, which was heard by an Additional District Judge. The learned Additional District Judge believed the respondent's evidence and pointed out in his order that the appellant had twice collected rent at long intervals and then not sent any notice demanding the rent of 2l months due at the date of the eviction application, therefore he held in his order that the appellant could not "by his acts take advantage of non-payment of rent under the cloak of default on the part of the appellant."
Accordingly he set aside the Rent Controller's order of ejectment and dismissed the appellant's eviction application. Aggrieved by this order, the appellant filed a second appeal in this Court which has now come up for hearing before me.
3. As it is admitted before me that rent of 21 months was due when the appellant filed his eviction application, the only question for consideration is whether the respondent has made out any case under section 13 of the said Ordinance for condoning his admitted and prolonged default in the payment of rent. The learned Additional District Judge has condoned the default on the sole ground that the appellant used to pay rent at long intervals in lump sums and this, according to the learned Additional District Judge, created an estoppel against the appellant. But no plea of estoppel had teen raised by the respondent in his written statement, and I also do not see in the circumstances how any estoppel could arise against the appellant. Therefore the only question is whether the fact that the appellant allowed rent to accumulate was by itself sufficient to justify the respondent's failure to pay rent.
4. As I have pointed out earlier, the respondent's plea in his written statement was that the appellant wanted to collect rent in large amounts, therefore he did not want to receive the monthly rent as it accrued. As I shall presently show, the said Ordinance imposes an obligation on the tenant to pay rent at the end of every month. The respondent's plea therefore was that his statutory obligation had been modified by an agreement with the appellant. The burden of this plea was very heavily on him and he was required to give particulars of this alleged agreement in his written statement, but his written statement merely states that the appellant collected the rent at long intervals "after every 10-12 months." He also did not give particulars of the alleged agreement !n his evidence except to repeat that rent was collected at long intervals. Similarly, the only witness examined by him who incidentally was his own nephew merely repeated his assertion that the appellant use to receive rent at long intervals., But even if a landlord receives rent at long intervals, this does not necessarily lead to the conclusion that it was in pursuance of an agreement not to receive rent at the end of every month. A landlord's failure to collect rent regularly may be due to many reasons : pre--occupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc. Therefore both the written statement of the respondent and the evidence produced by him are not sufficient to prove the alleged agreement pleaded by him. On the other hand, not only did the appellant deny this alleged agreement, but he emphatically stated in his evidence that the rent of the shop had accumulated because the respondent was "always late in making payment in spite of demands" As the burden of proving the alleged agreement was heavily on the respondent, it is clear that he had totally failed to prove it and the Rent Controller's view was undoubtedly based on a correct appreciation of evidence.
5. However, the learned Additional District Judge has reversed the Rent Controller's order of eviction by holding that the appellant was estopped from evicting the respon--dent. This was because he had received the rent at long intervals from the respondent and sat "tight lipped", therefore, according to the learned Additional District Judge "the respon--dent's conduct is significant and he by his own acts seems to have allowed the respondent to run into arrears and cannot by his acts take advantage of non-payment of rent under the cloak of default on the part of the respondent" With these observations, the learned Additional District Judge by-passed the question whether the respondent had proved his alleged agreement. But even on the assumption that the respondent could resist eviction on an objection not pleaded by him, namely, an estoppel, the question is whether he has produced any evidence in support of this plea. An estoppel can arise only where a party has altered his position to his detriment on account of the representation of another, and it must always be borne in mind that the burden of proving this plea falls heavily on the party alleging it. Now, merely because a landlord receives rent at long intervals from his tenant, can this by itself amount to evidence of a representation on his part which has induced the tenant to alter his position to his detriment? As I have explained, there can be many reasons for a landlord's failure to take action against a tenant who is in arrears of rent, therefore mere inaction by him cannot possibly, by itself, amount to a representation, nor can a tenant be heard to say that he had altered his position to his detriment unless he proves to the hilt that he had made an offer to pay rent which he refused. But in the instant case the respondent said in evidence that the appellant collected rent at long intervals. Even if this evidence is assumed to be true. It cannot possibly spell out any estoppel However, according to Mr. Zahedy, as there was a long established practice of payment of rent at long intervals, this was sufficient to create an estoppel. Perhaps, when, for instance, a tenant is ignorant and illiterate and has been allowed, on very man occasions and for a long period of years, to pay rent in largo lump sums, the plea of estoppel might be arguable. But the respondent is the lessee of a shop, and further, Mr. Zahedy admitted that the only evidence about the so-called long established practice was that the respondent had paid the rent of 13 months In September 1961 the rent of 16 months in January 1962, and the rent of three months in April 1962. In the first place, there is a difference between 13 months and 21 months -and between 16 months and 21 months. Secondly, two instances cannot conceivably prove a long established practice. Thirdly, the alleged practice is totally inconsistent with the fact that the rent of the three months from January to March 1962 had been paid in April 1962. In these circumstances, the respondent has failed even to prove practice for the payment of rent at long intervals, much less a long established practice, and the ingredients of an estoppel are completely absent m the present case; there--fore the view of the First Appellate Court is contrary to the evidence on the record.
6. Mr. Zahedy then pointed out that after the Rent Controller had passed the order for deposit of rent under sub--section (6) of section 13 the respondent had immediately complied with it, and as the appellant had not drawn out the rent deposited until his suit had been disposed of, this proved two things: that the respondent had always been ready and willing to pay rent but had not done so at the appellant's request, and that the appellant's delay in collecting the rent deposited in Court further proved the respondent's plea of an alleged agreement to collect rent in large lump sums only. I am not able to accept either of these submissions. In the first place, the respondent had been late by one day in complying with the order for deposit of rent. However, even on the assumption that he complied with it, he must have been aware that his failure to do so would have led to his summary eviction under sub--section (6) of section 13, therefore this compliance was in his own interest, and I do not see how it can possibly lead to the inference that he had been ready and willing to pay rent before the institution of the eviction case against him. I may however observe here that under the Karachi Rent Restriction Act, even after its amendment, a tenant could escape liability for eviction by depositing rent before the passing of the order of eviction.-- See Dawood & Company v. Muhammad Iqbal (PLD 1962 Kar. 368). But the position was completely changed when that Act was repealed by the said Ordinance, and one of the objects of the Legislature in repealing that Act by the said Ordinance was to impose on tenants a clear and unequivocal obligation to pay rent during the pendency of a rent case. Accordingly, save in exceptional cases such as when the change in the law was recent and the tenant is ignorant and illiterate, or when there is a genuine dispute about C title or about the quantum of rent, compliance with a Rent Controller's order for deposit is not relevant to the tenant's failure to pay rent before the institution of the eviction case.
7. I also cannot accept Mr. Zahedy's further submission that the appellant's delay in collecting the rent deposited in Court proves the respondent's alleged agreement to pay rent at long intervals.
Apart from the respondent's failure to cross-examine the appellant on this allegation, learned counsel's submission implies that a landlord has an obligation to withdraw promptly the rent deposited in Court under subsection (6) of section 13. But the subsection does not impose any such obligation on the landlord, and as the provision for deposit is entirely for his benefit, in my opinion, nothing turns on a landlord's delay in withdrawing the rent deposited under sub--section (6). On the other hand, bearing in mind the fact that a landlord is advised by counsel in the conduct of litigation and the very great physical hardships for litigants in the District Court of Karachi, I am not surprised at the appellant's conduct in withdrawing the rent deposited by the respondent, and I may further point out here that he had to file three successive applications before he could obtain an order from the Court for the withdrawal of rent that admittedly belonged to him. In these circumstances, this delay does not in any way support the respondent's plea of an alleged agreement.
8. Finally, Mr. Zahedy submitted that even if the First Appellate Court's order was wrong I could not interfere with it in this second appeal because it was a discretionary order. I agree with the learned counsel that the First Appellate Court has discretion under section 13 of the said Ordinance to condone a tenant's failure to pay rent. But as that discretion is a judicial discretion, it has to be exercised in accordance with the objects of the said Ordinance, therefore the question is whether the impugned order is in consonance with those objects. Now as I have ex--plained, the First Appellate Court's view was based on its totally erroneous finding of an estoppel against the appellant. Mr. Zahedy was aware of the weakness of this plea of estoppel, and he submitted that the mere fact that the respondent had been allowed to pay rent at long intervals in the past was by itself sufficient to justify the First Appellate Court's discretion in his favour, and in support of this submission he referred me to an unreported judgment of the West Pakistan High Court. But I have said that discretion under section 13 has reference to the objects of the said Ordinance, and I would first consider these objects. A tenant is required to pay rent to the landlord, and the said Ordinance does not impose any obligation on the landlord to find his tenant and collect rent from him. If then D an eviction application against a tenant in admitted arrears of rent is dismissed merely because the landlord had not been pursuing the tenant to recover rent, would it not amount to imposing a restriction on the landlord's rights which is not contain--ed in section 13? On the other hand, not only does this section impose an obligation on the tenant to pay rent properly, but it is significant that even after the amendment of sub-clause (1) of subsection (2) of section 13 a tenant can be ejected for failure to pay rent "within 60 days from the period for which the rent is payable." I have quoted the amendment, and its terms manifest the importance attached by the Legislature to the tenant's obligation to pay rent if it accrues, therefore, in my humble opinion, the object of the said Ordinance is to protect the tenant from eviction only as long as he is ready and willing to pay rent..
The discharge of this statutory obligation by the tenant is a condition of his protection and, in my humble opinion, he can invoke discretion under section 13 only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations. - Thus, for instance, a tenant would be entitled to the benefit of discretion under section 13, if he was not able to trace his landlord's whereabouts, despite reasonable efforts or if there was genuine dispute about the landlord's title. Again. If he has been regular over a long period of years in the payment of rent but through inadvertence falls into arrears for two or three months, he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadver--tence overlook his obligations Similarly, the case of a tenant who can prove an estoppel or an agreement to pay rent at long intervals is much stronger. However, merely because a tenant has on a few occasions been allowed to pay rent "at intervals of time", this cannot possibly entitle him to invoke discretion under section 13. After all, if he is allowed to fall into arrears, this is an indulgence on the landlord's part, and the recipient of an indulgence cannot claim any right or equity to its conti--nuance. Similarly, as the said Ordinance imposes an obliga--petition on the tenant to pay rent as it falls due, he cannot be allowed to escape this obligation by invoking discretion. Therefore, in the present case, the First Appellate Court did not exercise its discretion judicially in condoning the respondent's failure to pay rent for 21 months.
9. But as I have observed, learned counsel relied on an unreported judgment of this Court in Second Appeal No. 312 of 1970 (Met. Khairunnisa v. Muhammad Idris Qureshi). The default by the tenant in this case ,was of 15 months, yet the learned Single Judge observed that she was entitled to the exercise of discretion under section 13 because she had been allowed to pay rent at "intervals of time". With great respect, I am not able to agree with the observations of the learned Single Judge which in any case were obiter dicta only. Further, as the observations were based solely upon the view taken in two unreported judgments, I have examined those judgments, and I find that the view taken in those judgments was based on facts which were very different. Thus in Sadiq Traders v. Kalu Khan (Second Appeal No. 58 of 1965) the facts were that although the tenant was in arrears of rent, he was able to prove that the property changed hands and that he was not aware of the new landlord's address. But as I have explained in paragraph 6, these are circumstances which would entitle a tenant to invoke the Court's discretion under section 13.
However the view taken in this judgment must be confines to the peculiar facts of the case, and in my humble opinion, it does not support the view of the learned Single Judge in Mst. Khairunnisa's case. In the other unreported judgment, in Messrs Eastern Services Ltd. v. Khwaja Gulzar Ahmed (Second Appeal No. 92 of 1965), the facts were that & tenant was in arrears of rent, but he was able to prove a bona fide dispute about the quantum of rent. Further, he had paid a deposit, and the learned Single Judge observed "if this amount (of the deposit) was to be adjusted towards the arrears of rent . . . . . . The period of default would be a nominal one . . . " Thus the facts in this case were also distinguishable, and further, there is nothing in the judgment to support the view that a default of 15 months could be condoned merely because the landlord had granted indulgence to the tenant by allowing him to pay at intervals. With great respect, therefore, I cannot agree with the observations of the learned Single Judge in Mst. Khairunnisa's case.
10. I am also fortified in my opinion by a judgment of the Supreme Court in Riazalf v. Shabbir Ahmed Khan (1971 SCMR 598), a case to which Mr. Zahedy himself very fairly referred me. The facts in this case were that the appellant was in arrears is the payment of rent, but as in the present case, he resisted ejectment on the ground that the respondent had been receiving rent from him at long intervals. Both the Courts below held that the respondent had allowed the appellant to accumulate rent and they therefore exercised discretion in his favour under section 13. Aggrieved by the concurrent findings of the Rent Controller and of the First Appellate Court dismissing his eviction application, the respondent had filed a second appeal in this Court. I had allowed that appeal on the ground that the Courts below had exercised their discretion illegally. Therefore the appellant had filed a petition for leave in the Supreme Court which was dismissed. In dismissing the petition Yaqoob A.I, J. Pointed out that there was a written lease agreement between the parties under which the tenant had to pay rent regularly and observed: "In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent. In this view the High Court has properly set aside the orders of the lower Courts and allowed the application for eviction.
It is urged that under section 13 the Rent Controller had the discretion to condone delay in payment of rent. That is true, but discretion is to be exercised judicially and not in an arbitrary manner, default of ten months could not be condoned on any hypothesis. No exception can, therefore, be taken to the judgment and order of the High Court."
These observations, and specially the words which I have underlined, are fatal to Mr. Zahedy's argument. However, Mr. Zahedy submitted that the petition for leave had been dismissed by their Lordships on two grounds: that the appellant's conduct was inconsistent with the written lease and that a default of 10 months could not be condoned on any hypothesis. There-- fore learned counsel submitted that the observations were distinguishable. In the first place, the absence of a written lease in the present case is not, in my humble opinion, of much importance because the said Ordinance also imposes an obligation to pay rent as it accrues. Secondly, the observations of a superior Court cannot be distinguished on the plea that they are based on several grounds. As observed by Lord Simmonds in Jacobs v. London County Council ((1950) 1 A E R 737) at page 741: "---..There is in my opinion no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also."
The observations of Yaqoob A.I, J. Are therefore not distinguish: able, and as the respondent was admittedly in arrears of rent for a period of 21 months at the date of the eviction application. I am satisfied that the First Appellate Court bas acted arbitrarily in interfering with the Rent Controller's order and dismissing the appellant's eviction application.
11. In the result, the appeal is allowed. I set aside the order of the learned Additional District Judge and restore the Rent Controller's order. The respondent is given four months' time to hand over vacant possession of the demised premises to the appellant. But in the circumstances` of the case I leave the parties to bear their own costs.