1. ' This appeal is directed against the order, dated 6-10-1991, passed by the learned VlIth Senior Civil Judge and Rent Controller, Karachi (South) in Rent Case No,981 of 1988 filed by the appellant against the respondent on the sole ground of default in payment of rent after October, 1987.
2. Briefly the facts of the case are that the appellant is the owner of an industrial plot, bearing No,51/12, Ghulam Hussain Qasim Road Garden West, Karachi, commonly known as Dada Mills Go downs (hereinafter referred to as the said property). The respondent is a tenant in respect of a go down in the said property on agreed monthly rent of Rs,356. The said go down is described in the title as situated on the "Left Second Gate". The default was alleged to be for the period from November, 1987 to July 1988.
2. ' The case of the appellant has been that the respondent was wilful and habitual defaulter in respect of payment of monthly rent and had never paid rent on due date in spite of repeated oral requests and demands made by the appellant, as well as her son, who also used to collect the rent from the tenants. She had no source of income except the rent realized from the said property and, therefore, she had to face great hardships in meeting her day to day expenses and payment of taxes. She, therefore, sent letter under registered A/D cover, in October 1987, requesting the respondent to remit the monthly rent regularly by money order but the respondent did not care to tender the rent as demanded or otherwise as required by law.
3. ' In the written statement filed by the respondent it has been pleaded that the respondent and other tenants had acquired the tenancy rights on payment of goodwill (Pugree), for which no receipt is issued. It is further averred that the appellant used to collect rent from the tenants at her own choice and convenience. It is alleged that the appellant's act of filing the cases against the tenants discloses that the accumulated rent was being collected by her with mala fide intention to evict the tenants on the ground of default. It is further stated that the respondent had installed heavy machinery in premises where 15 to 20 persons are being employed since last several years.
4. It has been denied that the appellant or her representative ever demanded the rent every month either orally or in writing. He has pleaded ignorance with regard to the source of income of the appellant. It has been denied that the appellant had sent any letter calling upon the respondent to pay rent every month. The respondent had tried to pay rent to the appellant every month but she refused to receive the rent and continued to collect the rent as per past practice. The respondent has also given the history of collection of rent from other tenants to show that the appellant used to collect accumulated rent from all the tenants.
5. ' The appellant had filed her affidavit-in-evidence and that of her son Amir Azhar. In her affidavit- in-evidence the appellant made the same averments as in the ejectment application. It was denied by her that she or her son used to collect accumulated rent as a matter of their choice or convenience. According to her she had been pressing upon the respondent and other defaulting tenants to pay rent regularly on due date every month. It is further averred by her that even when the rent was being paid, the respondent did not clear all the arrears outstanding at the time of payment of rent. She had, therefore, sent notice to the tenants including the respondent, demanding payment of rent every month, but the respondent failed to pay the rent. The cross- examination of the appellant shows that the respondent was inducted as tenant by her husband, but she pleaded ignorance whether her husband had received the goodwill (pugree) from the respondent when it was inducted as tenant. The cross-examination further discloses that apart from the appellant and her son, her father also used to collect rent. The appellant was confronted with rent receipts issued to other tenants to prove that she had been in the habit of collecting rent periodically from other tenants also.
6. ' The respondent filed his own affidavit in which he reiterated contents of the written statement and also produced several receipts with a statement to prove that the appellant always collected rent in lump sum from the respondent and other tenants with irregular intervals.
3. I have heard the learned counsel Mr. M.M. Mahmoodi for the appellant and Mr. S.M. Akhtar Rizvi for the respondent.
7. ' The learned Advocate for the appellant contended that the rental income of the property, being the only source of income of the appellant, she or her son used to go to collect the rent every month but the respondent avoided payment of rent by due date. It was contended that even if in the past the rent was being collected in lump sum, the respondent ought to have tendered rent regularly, after service of notice, sent by the appellant in October, 1987. The fact that the respondent did not pay the rent as required under the law, even after service of notice, was by itself sufficient to warrant his eviction. It was also urged that the receipts produced by the respondent show that he did not pay all the arrears of rent as and when the rent was paid by him.
8. ' He relied on Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489, Amir Ali and others v. M/s. Burma Oil Mills Ltd. 1990 SCM R 1327 and Abdul Latif v. Munir Ahmed PLD 1987 Kar.
9. 460.
10. ' The learned counsel for the respondent urged that the appellant had always been collecting rent in lump sum from all the tenants, including the respondent and subsequently with mala fide intention, instead of collecting the accumulated rent, filed rent cases against some of the tenants on the ground of non-payment of rent. No notice was served on the respondent, informing him that the rent in future should be paid on month to month basis. He, therefore, urged that no exception can be taken to the impugned order. He relied on Abdul Aziz v. Abdul Ghani 1986 SCM R 1857.
4. It has come in evidence that in all there are nine tenants. The cases filed against the three tenants, were dismissed and the landlady has preferred appeals in all the three cases, which have been heard together.
11. ' The points that require consideration are whether appellant had adopted the practice of collecting rent in lump sum from the tenants and if so, whether she had informed the tenants of discontinuance of such practice and demanded payment of rent as provided under the law.
12. ' The respondent has brought on record several receipts with a statement to prove that the appellant used to receive accumulated rent from him as well as other tenants, including M/s. M.H.
13. Silk Factory and Abdul Shakoor apart from the other two tenants against whom rent cases were filed. The said documents establish that the appellant had been receiving lump sum rent of two to fifteen months from the said tenants, from January 1981. The above documents were not challenged in cross-examination.
14. ' The appellant in her cross-examination has expressed ignorance with regard to the fact that her husband used to collect the accumulated rent.
15. It is also not disputed by the appellant that she had been receiving the accumulated rent but has alleged that it was the respondent who was not making regular payments. She alleged that five, out of the nine tenants, were paying rent in advance. The evidence on record does not corroborate her above stand, in view of what has been stated above.
16. ' The defence taken by the respondent could have been easily shattered by producing counterfoils of the rent receipts evidencing collection of rent from the other tenants in advance or each month regularly, but the said evidence was withheld.
17. ' It has also come on record that some time rent was being collected by her and some time by her son or by her father. She had filed affidavit in evidence of her son Amir Azhar but he did not enter into the witness-box for cross-examination. Thus there is only word of mouth of the appellant that she used to go to collect rent every month but it was the respondent who did not pay rent regularly and I see no reason to accept such version, particularly in face of the documentary evidence pertaining to receipt of accumulated rent at least from two such tenants against whom no ejectment case has been filed, namely M/s. M.H. Silk Factory and Abdul Shakoor. The appellant withheld the best evidence i,e, the counterfoils of receipts issued to the remaining four tenants and as such the inference that had the said evidence been brought on record, it would have not established her version and would have proved the converse.
5. In support of his next contention that even if the appellant had adopted practice of collecting rent with irregular intervals according to her convenience, the respondent was duty bound to pay the monthly rent regularly, when he was specifically called upon to do so in the month of October, 1987, he relied on an undated letter which according to the appellant was sent to all the tenants. In proof of delivery of the said letter reliance has been placed on the photo stat copies of the postal registration receipt and Acknowledgment Due.
18. ' In the said letter no doubt it is stated that the appellant had been requesting the tenant to pay rent regularly, but at the same time it is further stated, "It is a long distance to come over there many times to recover the rent from different tenants. Therefore it will be convenient to send rent through money order and in return I will send you a receipt by post or hand over personally at the permises." The above letter by itself shows that the appellant never found it convenient to collect rent regularly. It does not complain of nonpayment of rent in time by the respondent. However, the respondent in his written statement and so also evidence had denied the receipt of the said letter.
19. The acknowledgment due does not show as to whom the said letter was delivered. Nevertheless there is evidence on record that the said letter was received by one Aslam. The respondent had deposed that the said Aslam was not his employee and he had no concern with him. It is further noted that even the address of the respondent is not mentioned in the said notice. Address on the acknowledgment due is not complete. In the Rent case filed by the appellant the address of the appellant is described as under:--- "Tenant of Go down Shed (Left Second Gate) Dada Mills Go downs, on Plot No,51/12."
20. ' But in Acknowledgment Due the above details about the location of the premises rented out to the respondent are not mentioned. The respondent having denied the receipt of the said notice in his written statement, the appellant ought to have examined the postman to prove delivery of the said notice to the respondent. This aspect of the case can be looked at from another angle. According to the appellant she had sent such notice to all the defaulting tenants and Abdul Shakoor was one of such tenants.
21. ' The respondent along with the affidavit has produced notice dated 26-11-1988 sent by the appellant to the said Abdul Shakoor. In the said letter the location of the premises in possession of the said tenant is described as situated at "7th gate on left". This indicates that the appellant has always been fully aware of the fact that the correspondence cannot reach the proper person unless the above description of the premises with regard to the location thereof is indicated in the address. This letter further does not refer to any notice allegedly sent by her in October, 1987.
22. ' The plea of the appellant that she had sent notice to all the tenants has become extremely doubtful. Had it been so Abdul Shakoor being one of the tenants also would have been sent the similar notice, and, if it were so, she would have made reference thereof in her above letter dated 26-11-1988.
23. ' The learned counsel for the respondent relied on the case of Abdul Latif v. Munir Ahmed. In the said case the past conduct of the landlord which was proved by the six rent receipts, was considered as sufficient evidence in proof of assertion that the landlord was in the habit of accepting rent periodically. Sajjad Ali Shah, J., as he then was, has in the said case, observed that if the landlord wanted that the impression about the past practice be erased, then he should have put the tenant on notice or informed him that the acceptance of rent in the past in lump sum was an act of condonation and the same was not to be treated as standard practice and rent had to be paid every month when it was due and failure of tenant in that context would make him liable to eviction and it would be only then that the tenant would be deprived of that particular defence.
24. There is, therefore, no escape from the conclusion -that it was the appellant who had adopted practice of receiving rent in lump sum with irregular intervals, at her own convenience, and such practice was in vogue from January 1981. It is not clear from the record as to when the respondent became the tenant of the appellant, but from the material on record it can be safely inferred that he was tenant since 1981. In the case of Abdul Aziz v. Abdul Ghani 1986 SCM R 1857, plea against the tenant that he was wilful defaulter was repelled as there was sufficient evidence on the record that it was the landlord who had adopted practice of receiving arrears of rent in lump sum.
6. As already stated above, the learned Advocate for the appellant has relied on the aforesaid cases of Hajiani Aisha and others v. Abdul Waheed and Amir Ali and others v. Burma Oil Mills Ltd.
25. ' No doubt in the first case relying on the cases of Haji Muhammad Qasim v. Mehran Ali 1983 SCM R 1205 and Malka Begum v. Mehar Ali Hashmi 1984 SCM R 755, it has been observed that the mere fact that the landlord accepts rent from the tenant periodically, does not mean that he does not desire or expect rent to be paid in time as required by the Ordinance and that the defence based on the ground of landlord receiving or collecting rent at intervals of several months, is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent from the tenant, but their Lordships have distinguished the rule laid down in the case of Abdul Aziz v. Abdul Ghani, where the landlord had adopted practice of receiving arrears of rent in lump sum. It may be noted that in the above case of Hajiani Aisha it was found that, as a matter of fact, the landlord had received accumulated rent only on one occasion, otherwise the lump sum payments were found to have been received as advance rent.
26. ' Similarly in Amir Ali's case their Lordships have reiterated the law as postulated in Abdul Rashid v.
27. Saleh Muhammad 1980 SCM R 506; Dr. Syed Waris Ali Tirmizi v. Liaquat Begum 1980 SCM R 601 and M/s. Tar Muhammad Janoo & Co. v. Tahir Ali and others 1981 SCM R 93 and Malka Begum (supra) to the effect that the parties cannot contract themselves out of provisions of the law on the subject and the mere fact that a landlord accepted a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by fifteenth of every month, but if the landlord agrees to accept rent periodically the delay in payment could be condoned. Such fresh agreement can, however, not be inferred lightly from the mere fact that the landlord had received rent from his tenant at irregular intervals. Their Lordships highlighted the distinction with reference to the rule postulated in the case of Abdul Aziz v. Abdul Ghani by pointing out that in the said case it was the landlord himself who had adopted the practice of receiving rent in lump sum.
28. In the present case, it has been fully established that it was the appellant who had herself adopted practice of receiving accumulated rent at irregular intervals not only from the respondent but also from her other tenants and therefore the Rent Controller had exercised the discretion in accordance with the recognized principles and in consonance with the law formulated in the authorities referred to herein above, in condoning the delay in payment of rent.
7. The learned counsel then contended that even in the past, when the appellant paid the accumulated rent, he did not clear all the dues and therefore his eviction should have been ordered on that count. Suffice to say that no such plea was taken in the application filed by the appellant and the eviction was not sought on such ground but specifically on the plea of non- payment of rent for the period from November, 1987 to July 1988. It is settled law that a party has to prove the case pleaded by it.
29. ' In the case of Abdul Aziz v. Abdul Ghani, also the rent from March to June 1978 was collected on 18- 9-1978, that is to say, the rent for the months of July and August 1978 due on the said date was not paid by the tenant to the landlord. The said aspect of the case has not been dilated upon but it would be in harmony and accord with the rule laid down in the aboye-referred case, and the conduct of the appellant, to treat the said defaults, as having been condoned by the appellant as she never took any exception thereto at any stage. It will not be, therefore permissible to allow the appellant to turn back to seek ejectment of the respondent on such ground.
30. ' No justification exists to interfere with the exercise of discretion by the Rent Controller. The appeal is, therefore, dismissed hereby.