1. ' The appellant/tenant is aggrieved by the order dated 20-12-1982 passed by the Vth Civil Judge and Rent Controller, Karachi in Rent Case No, 279 of 1982 whereby the appellant/tenant was directed to vacate the Shop No, 10, Plot No, 8, Drigh Colony No, 4, Karachi-25 within 60 days thereof.
2. ' The appellant is the tenant of The Trustees of Hussaini Mission Trust, in respect of the shop in question at a rent of Rs,50 per month. It is alleged in the ejectment application by the respondents that the appellant has not paid rent of the shop from April, 1979 to December, 1981 for a period of 33 months, arrears of which are in the sum of Rs,1,650 on the date of the application. It is also alleged that the appellant is not doing any business and has closed the shop since April, 1979. Further he wants to transfer the tenancy of the shop to some other person, but the respondent is not agreeable to it. The appellant in written statement has denied that he has defaulted in payment of rent. According to him he has deposited the rent upto date in Misc. Rent Application No, 4690 of 1979. It is admitted by him that the shop remained closed but it is alleged that since the respondents had disconnected the electricity, it resulted into closer of the shop. She had been carrying on business of electric decoration and supply of amplifiers and loud-speakers which could not be carried on without electricity. Further it is alleged that the respondents have been mala fide harassing her with a view to compel her to leave the shop.
3. ' Both the parties led their evidence. Learned Rent Controller by his order dated 20-12-1982 held that the appellant had failed to pay the rent from 1-4-1979 to 31-7-1979 and on this ground ordered ejectment of the appellant. Aggrieved by this order the appellant filed this appeal which was dismissed by a learned Single Judge of this Court vide his order dated 15-12-1985. The appellant aggrieved by his order preferred Civil Appeal No, 90-K of 1986 in the Supreme Court of Pakistan which was allowed by consent of the parties with direction that the case be remanded to the High Court for disposal of appeal before it on merit taking into consideration inter alia 9 rent receipts issued by the respondents on record in support of appellant's pica that as a matter of practice the respondent had been collecting rent in lump sum.
4. ' Learned counsel for the parties took me through the entire record and dwelt at length in support of their respective contentions.
5. ' Respondents have produced Syed Israr Hussain the Hony. Managing Trustee and the appellant has produced Syed Khursheed Abbas, Attorney and husband of the appellant and Abbas Haider life Trustee of the respondents. According to Syed Israr Hussain, the appellant has committed default in payment of rent from April, 1979 to July, 1979 for 4 months. In August, 1979 a Money Order was received in the personal name of the then Managing Trustee Mr. Zaigham Abbas Rizvi but was refused for the reasons that:
(1) It was in the personal name of Mr. Zaigham Abbas, who had gone to Islamabad;
(2) The rent was sent after committing default by the appellant in the payment of rent; and
(3) The husband of the appellant had gone out of the country in 1976 and the shop was being kept locked since then.
6. ' In cross-examination it is admitted by P.W. That he was not the Managing Trustee of the respondents in 1979 and the respondents did not file case earlier than 1982 as the husband of the appellant was not in Pakistan. It is admitted by him that the respondents used to accept rent accumulated for several months but it was with a view to accommodate the appellant. It is denied by him that he ever refused rent or wanted to give the shop on pugree to someone. Syed Khursheed Abbas the Attorney of the husband of appellant in his deposition states that till March, 1979 the Managing Trustee used to collect rent for few months from the appellant. The parties had cordial relations but afterward the respondents changed their mind and thought of giving the shop to some other persons on better rent and in order to create ground for default, avoided to accept the rent on one pretext or the other at least three times. Their vicious game was disclosed when the respondent disconnected the electric line. On 2-8-1979, the appellant sent rent for 4 months from April, 1979 to July, 1979 by money order to the respondents and again on 18-9-1979 rent was sent by money order but both the money orders were returned by the respondents, hence, the appellant started depositing rent in Court in Misc. Rent Case No, 4690 of 1979. In cross-examination he has produced money orders coupons as Exhs. 0/4 and 0/5 respectively. It is admitted by him that both these money orders were addressed to Mr. Zaigham Abbas the Managing Trustee wh reas he was a tenant of the respondents. It is also admitted by him that previously he used to pay month to month rent to the respondents. Similarly it is admitted by him that the shop remained locked from 1976 to 1979. The appellant's other witness Abbas Haider, Life Trustee of respondent has come out with the allegation against the present Managing Trustee of respondent Mr. Israr Hussain, a retired S.I. Police stating that he brought man of choice to replace him. According to him the rent remitted by the appellant by money orders (Exhs. 0/4 and 0/5) was purposely refused to create ground for default. In cross-examination he retracted from this statement by saying that he does not remember as to why the two money orders were not accepted and returned by the respondents.
7. According to him on 2-8-1979 electricity was disconnected from the demised premises but he is not aware if the appellant had paid electric charges in respect thereof or not.
8. ' It was contended by Mr. Naraindas C. Motiani, 'learned counsel for the appellant, that the appellant made payment of rent at irregular intervals, which was accepted by the respondents. In support he referred to 9 receipts from April, 1976 to April 1979, showing that the appellant had been making irregular payment of rent in lump sum. Mr. Aftab Kazilbash, learned counsel for the respondent admitted that these receipts were issued by the respondents. Accordingly it was 'urged by Mr. Naraindas C. Motiani that the respondents for a long period had accepted rent periodically whereby the respondents had agreed to accept delayed payment of rent in lump sum from the appellant which purports to modify the agreement to pay rent on month to month basis. He referred to deposition of Syed Israr Hussain, who in cross-examination has admitted to have accepted rent accumulated for several months. In support of his contention learned counsel placed reliance on Muhammad Aslam v. Noor Muhammad 1973 SCMR 606 wherein it was held: "The Rent Controller could however condone the delay if he was satisfied that by agreeing to accept the rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In that case it could be said that there was not deliberate default and the Court might exercise discretion against directing eviction of the tenant although, in law, default is proved on his part."
9. ' It was further contended by learned counsel for the appellant that it was a case of waiver on the part of the landlord and, therefore, even if any default in payment of rent was committed by the appellant, it should be condoned by the Court. In support of his contention he placed reliance on Muhammad Ahmed v. Mrs. Qamar Anwar Shaikh 1980 CLC 664.
10. ' Mr. Aftab Kazilbash, learned counsel for the respondents, on the other hand, contended that mere acceptance of rent in lump sum by landlord will not change the terms of tenancy. While admitting that the nine rent receipts from April, 1976 to April, 1979 were issued by the respondents it was maintained by him that accumulated rent was accepted by the respondents with a view to accommodate the appellant/tenant, but in no way it shall tantamount to change the terms of tenancy. Learned counsel pointed out to the categorical statement made by the appellant in his cross-examination that the tenancy was from month to month. After his statement the respondent is estopped from raising the said plea. In support of his contention learned counsel placed reliance on Abdul Rasheed v. Saleh Muhammad 1980 SCM R 506, in which it was held: "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance.
11. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said tax have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."
12. ' It was further held: "The mere fact that a landlord accepts 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 him that the rent has to be' paid by the tenant by the 15th of every month."
13. ' Further reliance was placed on Waris Ali Tirmizi v. Liaqat Begum 1980 SCM R 601, in which it was held: "The Court could condone delay in the payment of rent if the landlord had agreed "to accept rent periodically". Now, if a landlord agrees "to accept rent periodically, "this can only be the result of a fresh agreement between him and the tenant, and if he enters into such an agreement, he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month.
14. However, as was explained in Alimullah's case, the burden of proving such an agreement between the landlord and the tenant is not to be inferred lightly and cannot generally be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals therefore, the observation of Muhammad Yaqoob Ali, J. (as he then was), does not help the petitioner's case, because he has failed to prove that the respondent through her husband, had agreed to alter the terms of the tenancy with the petitioner and to receive rent from him at long intervals."
15. ' With regard to the plea of waiver on the part of respondent it was contended by the learned counsel for the respondents that this plea was not raised by him in his pleadings and he cannot be allowed to do so at this stage being an afterthought. In support of his contention he placed reliance on Ali Hassan v. Abdul Qadeer reported in 1980 CLC 912.
16. Contentions raised by Mr. Aftab Kazilbash are not without substance. Indeed it is for the appellant/tenant to establish that the original condition of payment of rent to the respondent/landlord on month to month basis stood varied subsequently, by an agreement whereby the delayed and/or accumulated payment of rent by the former becomes acceptable to the latter. Mere production of receipts issued by a landlord showing acceptance of delayed or accumulated payment of rent by a tenant will not by itself establish supersession of earlier agreement. There must be sufficient material on record to establish that the landlord intended to relieve the tenant of his earlier contractual or statutory obligation to pay the rent on due date(s) and accepted instead an agreement not initially in existence between them. In the present case the appellant has failed to do so.
17. Admittedly the plea of waiver has not been taken by the appellant in his defence and he cannot be allowed to raise it at this stage. There is nothing on record to suggest that the respondent knowingly relinquished their right to enforce ejectment of the appellant on the ground of default in payment of rent.
18. ' The appellant has admitted having remitted rent for April, 1979 to July 1979 on 4-8-1979 and has thus committed default in payment of rent for the months of April and May 1979. It is also an admitted position that the shop had remained closed from 1976 till 15-12-1985 when judgment in F.R.A. No, 83 of 1983 was given by a learned Judge of this Court against the impugned order dated 22-12-1982 passed by the learned Rent Controller. Since no issue was framed on this point and no finding was given by the learned Rent Controller, I will refrain from making any observation in relation thereto.
19. ' The appeal is accordingly dismissed with costs with direction to the appellant to vacate the shop in question within 30 days hereof and hand over possession thereof to the respondent.