1. ' The appellant was the respondent's tenant in a shop bearing No,B-3, situated in M.Y. Plaza, Nazimabad, Karachi, at a monthly rent of Rs, 425 which, according to the tenancy agreement between the parties, was payable in advance on the 5th of each calendar month. The respondent, however, filed an ejectment application before the learned Controller alleging that the appellant had failed to pay him rent for the period from July to October, 1986, and again from November 1986 to February, 1987.
2. ' The appellant filed a written statement admitting the relationship of the landlord and the tenant between the parties and the signing of the tenancy agreement by them and taking over of the possession of the premises in pursuance of the terms thereof. However, according to the appellant, after the expiry of the period of the said agreement of tenancy, the conditions embodied therein in regard to the advance payment of rent, etc., had ceased to be applicable to the parties. As regards the alleged default, the case of the appellant was that the respondent used to collect rent in a lump sum. It was further alleged that the respondent himself failed to collect rent from July to October, 1986. It was also alleged that the respondent had demanded enhanced rent from the appellant at a rate of Rs,600 per month and as the appellant was not in a position to meet such a demand, the respondent was annoyed and therefore, he himself failed to collect the rent. However, the appellant sent rent for the months of November and December, 1986 and January, February and March, 1987 amounting to Rs,2125 through cheque but the same was refused and thereafter the appellant was compelled to deposit rent in the Court through Misc. Rent Case No,403/1987. The appellant also claimed adjustment of Rs,10,000 which were lying in advance with the respondent and, therefore, according to him, there was no question of default.
3. ' Thereafter, the parties led their respective evidence before the learned Controller on the basis whereof the learned Controller has held that the default had been committed by the appellant as alleged and he ordered his eviction from the demised premises. It has firstly, been pointed out by him that, as per his own admission, the appellant had failed to pay rent for the period from November 1986 to February 1987. Although, according to the appellant, rent for the said period has been tendered by the appellant to the respondent by a cheque, sent with the appellant's letter dated 25-3-1987, but according to the learned Controller, tender of rent by a cheque was not a valid tender under the law. It was, in fact, on 7-10-1987 that the rent in question was, for the first time, deposited in the Court which clearly constituted default. The learned Controller also rejected the appellant's claim for adjustment of Rs,10,000 as there was no such stipulation made in the tenancy agreement.
4. ' I have heard Mr. Khalil-ur-Rehman, learned counsel for the appellant and Mr. Arif Ali Shah, learned counsel for the respondent. Mr. Khalil-urRehman has firstly contended that the lease agreement had been executed by the respondent on behalf of his minor son Mansoor Hassan Khan, who actually was the owner of the property in question and consequently the ejectment application filed by the respondent was not maintainable. The second contention of the learned counsel is that according to the evidence led by the appellant before the learned Controller, rent was being initially deposited in the bank account of the respondent and thereafter the bank account was closed by the respondent and he also shifted his residence. Subsequently, the respondent started receiving monthly rent from the appellant when he himself used to visit the premises. Thus in the year 1986, the practice between the parties vis-a-vis collection of rent had changed and the respondent was collecting monthly rent in a lump sum whenever he visited the building in question. Consequently, according to the learned counsel, the respondent could not be adjudged as a wilful defaulter for the period in question.
5. ' So far as the first contention of. Mr. Khalil-ur-Rehman is concerned, the same is neither supported by the pleadings nor the evidence. As has been pointed out earlier, the relationship of the landlord and the tenant between the parties was admitted by the appellant in his written statement filed before the learned Controller. He also admitted to have executed the said tenancy agreement with the respondent. It is pertinent to point out that although the said tenancy agreement was filed by the respondent alongwith his eviction application but the same was not introduced into evidence by either of the parties. However, a perusal of the agreement indicates that the same had been executed by the appellant on one hand and the respondent on the other. No doubt, reference has been made in the recital to the fact that the building stands in the name of the respondent's minor son, namely, Mansoor Hassan Khan, but it is nowhere suggested therein that the said agreement had been executed by the respondent on behalf of his minor son. Nothing to the effect can be spelt out from the agreement. The agreement further shows that the rent was payable from the appellant to the respondent for the demised premises and once again nothing can be spelt out from it to suggest that such rent was to be received by the respondent on behalf of his minor son.
6. According to the definition of the term "landlord" in the Sindh Rented Premises Ordinance, it means the owner of the premises and the same would also include a person who is for the time being authorised or entitled to receive rent in respect of such premises. Consequently, from any point of view, it has not been established that there was no direct relationship of the landlord and the tenant between the parties. There is, therefore, nothing to suggest that the eviction application filed by the respondent was not competent. The first contention of Mr. Khalil-ur-Rahman is, therefore, repelled.
7. ' Turning to the second contention of Mr. Khalil-ur-Rahman, again the contention is not supported by the pleadings as the stand taken by the appellant in his written statement was contrary to what has now been contended by Mr. Khalil-ur-Rahman. However, the evidence recorded by the learned Controller does indicate that the respondent had closed his account in Habib Bank Ltd., Muslim League Quarters Branch, Karachi. The evidence also shows that the rent had been received by the respondent upto October, 1986. It was, however, denied by the respondent that he had enhanced the rent to Rs,600 per month from November, 1986, as alleged by the appellant. According to the respondent, rent had been offered by the appellant from November, 1986, to March, 1987 by cheque but since default had been committed by the appellant the same was not accepted by the respondent. However, there appears to be no evidence to the effect that after the closure of his bank account in the Muslim League Quarters Branch of Habib Bank, the respondent was accepting rent from the appellant in a lumpsum. It is, however, clear from the evidence that after October, 1986, rent for the period in question was tendered by the appellant to the respondent in a lumpsum by a cheque but the same was refused by the respondent as the appellant had already committed default in the payment of rent. This position has been admitted even by the appellant himself in his evidence. However, the question as to the commission of default by the appellant has been very elaborately discussed by the learned Controller in the order and I wholeheartedly agree with him that default has been fully established against the appellant. I also agree with the observations of the learned Controller to the effect that it was the appellant's duty to have found the respondent and tendered rent due to him and the stand taken by the appellant that the respondent himself failed to collect rent after closing of his bank account had rightly been found to be unacceptable by the learned Controller. The plea taken by the learned counsel for the appellant that there was previous practice of acceptance of rent in a lumpsum is also not tenable because the said plea is neither supported by the evidence recorded before the learned Controller nor the same can be sustained under the law. In the case of Abdul Rashid v. Saleh Muhammad (1980 SCMR 506), it was held that the parties cannot contract themselves out of the provisions of the law on the subject namely, West Pakistan Urban Rent Restriction Ordinance. In Dr. Syed Waris Ali Tirmizi v.
8. Mst. Liaqat Begum (1980 SCMR 601), although it was held that if the landlord agrees to accept the rent periodically the delay in payment could be condoned but it was further held that such fresh agreement cannot be inferred lightly from the mere fact that the landlord had received rent from his tenant at irregular intervals. Reference may also be made to 1981 SCMR 93 and 1984 SCMR 755 wherein similar views had been expressed by the Honourable Supreme Court. The same view more or less has been taken in another case recently decided by the Supreme Court, reported as Amir Ali and others v. M/s. Burmah Oil Mills Ltd. (1990 SCMR 1327). Consequently, I find no force in Mr. Khalil-ur-Rahman's second contention as well.
9. In the result, I find no force in this appeal and the same is, therefore, dismissed. However, the appellant shall be entitled to receive back Rs, 10,000 which admittedly had been deposited by him with the respondent at the time of the execution of the tenancy agreement, subject to adjustment, if any, if claimed by the respondent, in accordance with the teams of the tenancy agreement. Mr. Khalil-ur-Rahman, has further requested that since the premises occupied by the appellant consist of a shop the appellant may be given some time to vacate the same. According to the request of Mr. Khalil-ur-Rahman, I allow six months' time to the appellant to vacate the demised premises. In case the appellant fails to vacate the premises after the expiry of the said time, the execution proceedings shall follow without further notice to the appellant. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.