ZAFFAR HUSSAIN MIRZA, J.---This is an appeal against the judgment of a learned Single Judge of the Sindh High Court, dated 24th October, 1982, whereby the second appeal of the respondents was allowed and the order of their eviction from the premises in dispute was set aside. Leave was granted to consider the contention of the appellants that the discretion in this case has been exercised illegally and contrary to the established principles of law on the following grounds:--
(i) in that there cannot be exercise of discretion against the law or legal principles;
(ii) in that if the defence taken by the tenant is found not proved or false, no question of exercise of discretion would arise in such a case;
(iii) in that if the landlord's right to recover rent is denied by the tenant, he would forfeit the right to the exercise of discretion in his favour;
(iv) in that discretion in favour of the tenant is exercisable only if it is shown that the tenant made an honest attempt to perform his obligations under the law.
2. The disputed premises were held by the respondents as tenants at the rate of Rs, 131.50, under the terms of an agreement of tenancy which stipulated the payment of rent in advance by the 5th of each month.
3. In July, 1971, the appellants filed an application seeking ejectment of the respondents, on the plea that they had committed default in the payment of rent for a period of six months from 1st January, 1971 to 30th June, 1971. The respondents contested the application and in their written statement, besides denying the right of the present appellants to be the landlords, took up a plea that in accordance with the implied contract, the landlords had agreed to send bills of rent for three or six months in lump sum on the receipt of which they used to make payment of rent. On this plea they asserted that they had not committed default in the payment of rent for the period in question as no bill for the said period, in terms of the said practice, was received by them. On the question whether the respondents had failed to pay or tender the rent within time, the learned Rent Controller gave a finding in the affirmative. However, he came to the conclusion that the respondents had successfully proved that there was a practice mutually established between the parties over a number of years whereby the rent was paid after a letter demanding payment of rent for a number of months was issued by the appellants. Accordingly the learned Rent Controller exercising his discretion in favour of the respondents, dismissed the application for ejectment vide his order dated 30th July, 1975. On appeal, however, the learned Additional District Judge disagreed with the view taken by the Rent Controller and order the eviction of the respondents as per his judgment dated 28th February, 1977. In the Second Appeal filed by the respondents the learned Single Judge, after referring to the case-law, formed the view "that the parties cannot contract themselves out of the provisions of section 13(2)(i) of the Ordinance by establishing a different practice on the record to the mode of payment of rent". However, in the opinion of the learned Judge in the present case it was shown that there was a practice to pay the accumulated rent for three or four months, which raised a presumption that the landlords had condoned the default and had acquiesced in the mode of payment of rent and have waived their rights. On this reasoning the learned Single Judge agreed with the Rent Controller that the respondents were entitled to the exercise of discretion in their favour to relieve them of the consequences of their default which was established on record.
4. In support of the appeal Mr. Fakhruddin G. Ebrahim, learned counsel for the appellants, contended that in the circumstances of this case the exercise of discretion was wholly unjustified and against the principles laid down by this Court and other superior Courts of this country. In this connection he referred us to a number of decisions which would be presently examined.
5. On the other hand Mr. Aziz Munshi, learned counsel appearing for the respondents, defended the judgment of the High Court and contended that the evidence clearly established that there was an implied contract between the parties whereby the landlords were to send their bills of rent for three months or six months and then the respondents used to make payment immediately. This being the position on the record according to the learned counsel no finding of default in the payment of rent by the respondents was justified.
6. In order to appreciate the respective contentions advanced by the learned counsel for the parties it would be necessary to briefly describe the evidence brought on record. On the side of the landlords one Mr. Mansoor Ali, appellant No, 2 a co-owner of the property comprising the disputed premises was examined. He asserted that the tenants were not regular in payment of monthly rent and at the time of institution of the proceedings they were in arrears for six months from January, 1971 to June, 1971. He stated that he used to issue receipts for the rent received from the tenants, of which a specimen form was produced. He categorically denied that there was any practice agreed upon whereby the bills had to be sent first and then the tenants were to pay rent. Through him the tenants produced rent bills issued by the landlords Exhs. 8 to 17. The witness called these documents as reminders for payment of outstanding arrears of rent and not rent bills and had denied any arrangement according to which these rent bills were sent with interval of 3 to 4 or 6 months.
7. As against this on behalf of the tenants Muhammad Yousaf, Accounts Assistant, of the respondent company was produced in evidence. His evidence on the relevant point is as under:- "The landlords never demanded rent every month and the rent was demanded after the several months at a time. The position was that as soon as we used to receive letters of demand the cheque of the amount demanded was sent to them."
' It has been contended on behalf of the landlords that the ten letters produced in evidence cannot be construed to support the plea that there was an implied contract between the parties whereby rent was not payable unless demanded from time to time. The finding in this behalf by the learned Additional District Judge in appeal was supported by the learned counsel for the landlords, who had held that these letters' were not bills of rent but were in fact reminders for payment of arrears which were over due. In this behalf learned Additional District Judge had following observation to make:- "The contents of these letters leave no room for doubt that Exhs. 8 to 17 are not bills of rent but these are in fact reminders intimating to the respondents that their books showed them in arrears of rent.
These letters are of course couched in a courteous language but do not give an impression that the conduct of the respondents was approved. On the contrary they point out to the reprehensible conduct of the respondents in allowing themselves to run in arrears contrary to the terms of printed condition No, 3 on the reverse of the receipt issued to them each time, the rent was received. These receipts not only showed that rent was payable in advance by the 5th day of every month of tenancy but also served as, a fresh notice each time reminding the tenants of their contractual responsibility to tender rent in terms thereof."
' Learned counsel submitted that this being a possible construction of the documents on record, on the basis of which the learned Additional District Judge reversed the order passed by the Rent Controller, the High Court was not justified in interfering with the same in second appeal. Lastly he submitted that at best the documentary evidence established practice that the accumulated rent with interval of three months was payable, even if that is taken as the basis, then too the tenants by failing to pay the rent for six months were in clear wilful default.
' Now so far as the plea of the tenants is concerned their case was that there was an implied contract between the parties to pay rent after interval of three to four months upon the issuance of a bill. The ten documents relied upon by the tenants pertain to the period of two years and seven months from June, 1968, to December, 1970 without any break. In all these documents except Exh. 11 the demand is made for three months rent. In Exh. 11 the rent is demanded for four months. These were all printed letters in which only the amount of rent and the period for which the rent was due has been changed. It would suffice to reproduce the last letter in point of time dated 1st January, 1971 which is as follows:- "ESSAJEE EBRAHIMJEE & CO. Timber & General Merchants Harchandrai Road, Karachi. Date: 1st January, 1971.
' Messrs Burmah Oil Mills Limited Tenement No, 2 GK 8, Karachi.
' Dear Sirs, ' From our books we find that an amount of Rs, 395.25 being arrears of rent upto 31 December is due from you and shall thank if you will please favour us with your cheque for the said amount at an early date.
' Yours faithfully, ' (Sd.)
' For Amir and others.
' It has been urged on behalf of the landlords that the language of these letters, with reference to arrears of rent due from the tenants clearly indicates that these letters were in fact reminders calling upon the tenants to clear the arrears of rent. On the other hand for the tenants it. Has been contended that these being printed letters were not written individually to the tenants but as a matter of established practice and the landlords were not able to point out a single instance in which rent was accepted for one month. It was also pointed out that grievance was made in respect of the period of six months in dispute in this case, whereas the documentary evidence shows that the tenants had been all along since, at least, 2nd September, 1968 (the date of the first letter) paying rent with interval of three or four months. All this according to the learned counsel for the tenants was clear proof of implied contract as pleaded by the tenants.
' There is no documentary proof that the parties had agreed to alter the mode of payment of rent so that the tenants were not required to make payment from month to month. The reliance in this behalf is being placed on the conduct of the landlords. The text of the letter which was sent by the landlords, as reproduced above, supports their argument and excludes, any agreement that the rent was payable only on demand with intervals. Mere fact that the landlord condoned the payment of rent every month, is no ground for holding that he had agreed to modify the contract of tenancy. The words "arrears of rent" in the letter are very significant which obviously negate the suggestion that the rent became due on expiry of every three months. Besides the practice pleaded was also not consistent in so far as on one occasion arrears for four months were demanded. The evidence relied upon, therefore, does not establish any modification of the contract of tenancy. In Abdul Rashid v. Saleh Muhammad 1980 SCM R 506 it was laid down that parties cannot contract themselves out of the provisions of the law on the subject, namely, West Pakistan Urban Rent Restriction Ordinance. In regard to such practice pleaded by the tenants this Court categorically rejected the same, observing that "neither party can plead a practice which is contrary to the said law". The learned Judges pointed out that mere fact that a landlor accepted 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 fifteenth of every month. This view was reiterated in Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 SCM R 601, where it was laid down that if the landlord agrees to accept rent periodically the delay in payment could be condoned but such a fresh agreement can, however, not be inferred lightly from the mere fact that the landlord had received rent from his tenant at irregular intervals.
Similar view was expressed in Messrs Tar Muhammad Janoo and Co. v. Taherali and others 1981 SCM R 93 and Malka Begum v. Mehr Ali Hashmi 1984 SCM R 755.
' Having found that the tenants were bound to pay the rent at the expiry of every month of tenancy, it is obvious that they had failed to pay rent for the period of six months in question. However, the next question to consider is whether in the circumstances of the present case, the learned Judge in the High Court rightly interfered with the judgment of the first appellate Court, so as to restore the benefit of discretion exercised in favour of the tenants to relieve them of the consequences of the non- payment of rent. The learned Rent Controller exercised discretion in favour of the tenants on the grounds which appear from the following passage of the judgment:- "The direction for ejectment is a matter of discretion with the Rent Controller and it is a matter of discretion with the Rent Controller and it is the cardinal principle of law, equity and justice that he who seeks -a favourable discretion from any Court must come with clear hands. Since the applicants by their conduct had established a practice of issuing letters of demand for the recovery of rent and have been collecting rent for several months at time, therefore, now they are estopped from taking advantage of by resisting the established practice between the practice of applicants made the opponents to change their position to their disadvantage. In addition to the estoppel the applicants are deemed to have waived their right by acquiescing to the practice of receiving rent for several months at a time and that too after the issuance of the letter of demand."
' The learned Additional District Judge, on the other hand took the view that once non-payment of rent has been proved, the practice of receiving rent by intervals of more than one month, would be immaterial. In this behalf he made the following observations:-- "If the implied agreement is illegal, I fail to see how the tenant can take benefit of that illegality. An illegal contract is not enforceable and if given effect to would open the door wide for illegitimate practice. It would also have the effect of putting premium on late payment for all the times to come and the landlord would be deprived of the fruits of a provision of law which is meant for his benefit. Since the default is proved, there is no option to the Rent Controller but to strike off the tenant's defence."
' The learned Single Judge disagreed with the view taken by the learned Additional District Judge and agreed with the view of the learned Rent Controller for the reasons which appear from the following passage from his judgment:-- "However, since in the instant case from the very start the practice was that the tenants paid rent after a period of 3 months in one instance period of 4 months it could, therefore, be presumed that the landlord had repeatedly condoned the default. Even though the landlords could not under the law agree to vary the mode of payment of rent as provided by the Ordinance, they had acquiesced in the mode of payment of rent and had waived their rights with regard to the legal and usual mode of payment of rent. In the circumstances, no exception could be taken to the Rent Controller being satisfied that by agreeing to accept rent periodically the landlords had made the tenants to believe that the rent was not to be paid every month. On being so satisfied the learned Rent Controller exercised his discretion against directing eviction of the tenants, although default on their part was proved. I, therefore, find that the First Appellate Court was not justified in interfering with the discretion exercised by the Rent Controller."
The cases referred to herein above postulate that under the special statute governing the relationship of landlord and tenant, it is not permissible to contract out of the statutory requirements for payment of rent, and further lay down that the plea of the tenant in such cases to the effect that landlord himself allowed rents to be paid at long intervals was not a good defence.
In Syed Waris Ali Tirmizi's case it was pointed out that a practice by a tenant to pay rent at irregular intervals made him liable to eviction because such a practice was contrary to the provisions of law.
But it was further laid down that the Court could condone delay in the payment of rent if the landlord had agreed to accept the same periodically. To prove such agreement was the burden of the tenant and such agreement was not to be lightly inferred from the mere fact that the landlord had received rent from his tenant in the past at irregular intervals. Similar view was taken in Messrs Tar Muhammad Janoo's case (supra) where it was observed:-- "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 pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collect 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 hazarda of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage 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."
' It was, therefore, contended forcefully on behalf of the landlords that the learned Single Judge was not justified in second appeal to interfere with the judgment of the learned Additional District Judge and to have exercised discretion in favour of the tenants contrary to the law laid down as above.
He submitted that the learned Judge did not take into consideration the language of the letters written by the landlords for payment of arrears of rent. He further submitted that it was not the case of the tenants that there was a subsequent agreement by the landlords to accept the rent after long intervals. There is force in these submissions. In the written-statement the tenants only pleaded that "an implied contract had been established whereby the said firm used to send their bills of rent for three months or six months and opponents used to make payment immediately". It is, therefore, clear that an express agreement to change the mode of payment was not pleaded.
Therefore, what remains is only the fact that over a period of about 2-1/2 years the tenants made payment after receiving letters from the landlords. The question before the High Court, therefore, was whether this fact alone was sufficient foundation for exercise of discretion. In the cases referred to above it has been held otherwise. The argument on behalf of the tenants that not a sing;: counterfoil was produced to prove monthly payment, is of no consequence. The reliance on Abdul Aziz v. Abdul Ghani 1986 SCMR 1857, is also of no benefit to the tenants as in that case it was the landlord himself who had adopted the practice of receiving rents in lump sum. The principle has been laid down that merely because the landlord has in the past condoned the non-payment of rent, unless the same was the result of an agreement or representation on his part, is no ground for condoning the default on the part of the tenant by the Court. It has repeatedly been held that it is the tenant's obligation to pay rent within the stipulated time and not for the landlord to go after the tenant demanding rent. Therefore, if the landlords in the present case, in the usual course of their business sent letters reminding the tenants that their books showed that the tenants were in arrears, such letters cannot constitute bills for the payment of rent. The sole witness examined on behalf of the tenants did not assert that there was an agreement by the landlords to the effect that rent will be payable after letters of demand. In this state of evidence we are unable to concur with the learned Single Judge that any presumption arises to the effect that the landlords had acquiesced in the mode of payment of rent and have waived their rights in respect thereof. Nor can it be held that the landlords had made the tenants to believe that the rent was not to be paid every month. The mere fact of letters for payment of arrears of rent does not, in our opinion constitute an overt act on the part of the landlords to induce the tenants to such belief. The entire basis for the exercise of discretion is, therefore, groundless. There being no extenuating circumstances justifying the condonation of default, the order of eviction passed by the learned Additional District Judge has to be maintained.
' In the result for the aforesaid reasons, the appeal is accepted and the judgment of the High Court is set aside, with no order as to costs.