' This is appeal, under section 21 of Sindh Rented Premises Ordinance (hereinafter to be referred to as the Ordinance) against an order dated 23-11-1987, passed by the HIrd Senior Civil Judge & Rent Controller Karachi South in Rent Case No, 799/86.
2. Admittedly the appellants are tenants of the respondent in the first and second floor of Sher-naz Mansion, Nashtar Road, Karachi. Prior to this the respondent filed Rent Application No, 2565 of 1982 against the appellants for their eviction from the rented premises on account of default in payment of rent for the period of June 1980 to March, 1982 and on the ground of nuisance. Said rent application was accepted by the Rent Controller on 23-11-1987, on the ground of default in payment of rent and not on the ground of nuisance. Said decision has been challenged in this Court by the appellants in F.R.A. No, 27 of 1988. During pendency of said rent case the respondent filed another Rent Case No, 799/86 on 3-7-1986 for the eviction of the appellants from the rented premises on the ground that they had failed to pay the rent for the period from March 1983 onwards. Said application was contested by the appellants but it was accepted under the impugned order dated 23-11-1987. Hence this appeal.
2. Mr. Azizur Rehman, learned counsel for the appellants argued that when the respondent filed Rent Application No, 799/86 his previous Rent Application No, 2565/82 was pending'and hence the Application No, 799 of 1986 could not have been filed. It was next argued that as per practice between the parties the rent was being paid and accepted in lump sum after interval of a few months and consequently late payment of rent by the appellants would not make them wilful defaulters to invite penal provisions for their ejectment. In support, the learned counsel for the appellants cited the cases of Abdul Aziz v. Abdul Ghani 1986 SCMR 1857, Muhammad Siddique v.
Abdul Rasheed 1982 CLC 217, Haji Muhammad Usman v. Yousuf Ali Muhammad Bhai 1986 CLC 380, Abdul Latif v. Muneer Ahmed PLD 1987 Kar. 460 and Batul Fida Hussain Shaikha and others v.
Burma Oil Mills Ltd. 1988 CLC 70. It was next argued that the onus was on the respondent to show that there was no practice of receiving the rent in lump sum and that the appellants were not issued any notice by the respondent to the effect that the rent would be collected month-wise. It was further argued that a pay order covering rent for March 1983 to February 1986 was sent to the Advocate for the Respondent who did not accept the same. That the trial Court was also moved to accept rent but such prayer of the appellants was refused under an order dated 8-3-1986. That subsequently this Court was approached to accept rent. Lastly it was argued that the appellants had occupied the disputed premises in 1986 and hence they were not liable to pay rent for the period prior to 1986.
3. Mr. Waqar Muhammad Khan Lodhi, learned counsel for the respondent submitted that the default in payment of rent stood proved by the admission made by the appellants in their written statement to the effect that a pay order covering rent of the disputed premises for the period March 1983 to February 1986 was sent to Advocate for the respondent, under a letter dated 18-3- 1986. The learned counsel for the respondent made grievance of the negligence on the part of the appellants in making late payment of rent. It was emphasised that the rent was not being paid regularly, due to negligence of the appellants and not due to any practice having approval of the parties. It was next argued that no such practice can help the appellants, in condoning the delay made by them in making payments of rent. In support, learned counsel for the respondent cited the leading case of M/s. Tar Muhammad Janoo & Co. v. Tahir and others 1981 SCMR 93 and the cases of Abdul Rasheed v. Saleh Muhammad 1980 SCMR 506, and Haji Qasim v. Mehrban Ali 1983 SC MR 1205 which followed the former case. It was observed in said cases that the mere fact that a tenant has made it a habit not to pay the rent regularly every month and the fact that the landlord has tolerated his default for sometime 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. That such facts do not absolve the tenant from paying the rent every month.
4. Contrary view is expressed in the case of Abdul Aziz v. Abdul Ghani 1986 SCMR 1857. It appears that attention of their Lordship who decided the case of Abdul Aziz v. Abdul Ghani in the Supreme Court of Pakistan, was not invited to the three authorities by the Supreme Court of Pakistan mentioned in the preceding para. In view of this situation, I would prefer the view taken in the case of Tar Muhammad Janoo & Co. 1981 SCMR 93 which was followed in the case of Abdul Rasheed 1980 SCMR 506 and in the case of Haji Muhammad Qasim 1983 SCMR 1205. Similar view was taken by this Court in the cases of Fazal-ur-Rehman v. Mst. Taj A. Samad and others 1984 CLC 2551, Aba Hussain v. Mst. Mehrunnisa Begum 1985 CLC 2109 and Shaikh Muhammad Munir v.
Muhammad Ilyas 1986 CLC 93. I therefore hold that even if the rent was being paid and accepted irregularly that would not give any advantage to the appellants over the respondent, as the appellants cannot be allowed to have benefit of their own negligence.
5. Looking to the facts of this case, I find that the appellants have not been able to rebut statement of Rohinton D. Mama, attorney of the respondent to the effect that the appellants had neglected to pay the monthly rent for March 1983 onwards. In his cross-examination Rohinton D. Mama was not put any suggestion to the effect that rent for the disputed period was paid by the appellants. Niaz Ali, witness for the appellants, in his affidavit said that a Pay Order for Rs,41,811.76 Ps on account of rent for the period from March 1983 to February 1986 was offered to Advocate for the respondent who did not accept the same. Under the law the rent was to be tendered to the respondent and not to his advocate. Morever, the rent was tendered in the shape of a pay order to Mr. Mohsin Tayaballi, Advocate under a letter dated 18-3-1986, as per para 6 of the affidavit of Niaz Ali. This shows that rent for the period from March 1983 was not offered or paid before 18-3-1986. This by itself proves default. Appellants have not shown if the default was not wilful. Had the appellants not been in possession of the disputed premises before 1986 they would not have sent rent to Advocate for the respondent under the Pay Order for the period March 1983 to December, 1985. Appellant's witness Niaz All was ignorant about the rent affairs in respect of the disputed premises for the period before 1984, as admitted by him in cross-examination. Respondent was not required under any law to inform the appellants that the rent was to be paid each month regularly. There was no onus on the respondent to prove absence of the practice of paying and accepting the rent in lump sum.
6. For the aforesaid reasons I fully agree with the Rent Controller that the ground of default was proved.
7. In view of my above finding, I dismiss this appeal with no order as to costs. The appellants are given a period of six months to vacate the rented premises, subject to regular deposit of rent for said period as already being done.