1. ' This appeal has been preferred against the judgment passed by III Senior Civil Judge/Rent Controller, Karachi (East) on 14-2-1%.Briefly the facts are that the present respondent, the landlady of building on Plot No,801-C, Central Commercial Area, P.E.C.H.S., Karachi had filed the case for ejectment against the present appellants, who are tenants in respect of ground floor of the said building at monthly rent of Rs,900. The grounds alleged for ejectment are that the present appellants are habitual defaulters and irregular in payment of monthly rent; and that lastly they had committed, default in payment of rent for six months from July, 1984 to December, 1984 in spite of repeated demands and requests from the side of the landlady.
2. ' The present appellants filed their written statement in which they contended that they are a registered company carrying on manufacturing and export business at the said premises for last 10 yeaRs, It was further stated in the written statement that the landlady stayed in Sukkur and the rent was being paid to her whenever it was demanded or whenever she came to Karachi to collect the same. It was also stated that in case the landlady did not come to Karachi for a longer period of about six months, the due rent was paid to her through the Bank, which has been the practice for several yeaRs, It was also contended that the rent for the months of January to June, 1984 was paid to the landlady on 6-2-1984 through the Bank and rent for July to December, 1984 was paid by cheque on 5-1-1985 before the appellants had received the Court notice of the present rent case, which was filed on 2-1-1985. It was denied by the appellants that the landlady had ever demanded the rent for the period in case.
3. ' On these pleadings of the parties only one issue with regard to default was settled. The landlady filed affidavit-in-evidence of her husband Sajjad Ahmad who is also her Attorney. He was cross- examined. On the other hand, the appellants filed affidavit-in-evidence of Syed Ezazul Hassan Bukhari, a partner Miss Rukhsana Abbassy, the Office Assistant and Mr. Nelson Dean, Supervisor.
4. Nelson Dean did not appear for cross-examination while the other two witnesses were cross- examined. The. Rent Controller thereafter perusing the written arguments filed by the learned counsel for the parties was pleased to direct the ejectment of the present appellants. Being aggrieved, the appellants have preferred the present appeal.
5. ' I have heard the learned counsel for the parties. The relationship and the quantum of rent is not disputed. The learned counsel for the appellants has submitted that it had been an established practice that the rent was being received by the respondent/landlady periodically whenever she or her husband came to Karachi. He also submitted that if a longer period of six months or so lapsed in between then the present appellants would send the rent to the landlady through cheque, which was always accepted and encashed. He has further submitted that in such circumstances, the conduct of the parties showed that this practice had been established and, therefore, the present appellants cannot be termed as defaulteRs, He has relied on the case-law in support of his above contentions.
6. ' As against this, the husband and the Attorney of the landlady has stated in his evidence that the present respondent never accepted the practice of receiving the rent in lump sum but always insisted on regular monthly payment. The learned counsel for the respondent further submitted that mere acceptance of rent in lump sum on a previous accasion would not absolve the appellants from the consequance of penalty for default having committed by him. He has also referred to case-law in this respect.
7. ' I have considered the above submissions of the learned counsel for the parties, in the light of the principles laid down by the Hon'ble Supreme Court in the case of Abdul Aziz v. Abdul Ghani (1986 SCM R 1857). Hon'ble Supreme Court had refused to grant leave to appeal in the case where evidence on record showed that it was landlord who had adopted the practice of receiving arrears of rent in lump sum which conduct of the landlord was such which furnished sufficient justification for dismissing his eviction petition. Also in the case of Mohammad Rafiq Chowdhary v. Abdul Hameed and others (1988 SCM R 1385) the Honb'ble Supreme Court refused to grant leave to appeal in a case where the landlord would sometimes obtain the rent for six months in advance and on other occasions would receive the arrears for similar period in lump sum. In the case of Tahir All v. M/s. Shaikh Meeran Bukhsh , and Karim Bukhsh and others (1989 SCM R 403) also the petition was dismissed for the reasons that the two Courts below had found that it was the practice of landlord to collect rent in lump sum based on admitted rent receipts; and that payment of rent on yearly basis was proved. From the above cited judgments of the Hon'ble Supreme Court, it can be concluded that in case the material on record shows establishment of a practice by the landlord accepting the rent in lump sum in which case the tenant would not be held liable for default in similar circumstances. However, the question involved in the present case is whether such practice stands established. In the present case the contention of the landlady is that rent is to be paid on monthly basis. Not only this but her husband who has been examined in evidence has very clearly stated in his affidavit-in-evidence that the present appellants have been irreguar in payment of rent and have been habitual defaulter in spite of repeated requests from him requiring the appellants to pay the rent regularly on monthly basis. No doubt it has come in evidence that the landlady and her hsuband reside at Sukkur wt 're her husband is employed as Regional Manager in Industrial Gas Company. He has, however, in his cross-examination stated that he used to come to Karachi on official duty or to attend meetings every month; and that such meetings used to be on 10th or 15th of every calendar month. At the instance of the appellants'
8. Advocate he has produced three sets of photo copies of circulars for his such visits to Karachi during the period 1982 to 1984 as Exhs. 4/C, 4/D and 4/E which are 36 in number and support his above contention. In paragraphs Nos,8, 9 and 10 of the affidavit-in-evidence filed by the husband of the respondent he has stated that he had been meeting with Mr. Bukhari, the partner of the appellants almost on his every visit to Karachi and had been requesting him to pay the rent on monthly basis. In paragraph 10 of the said affidavit, the husband of the landlady had stated that Mr. Bukhari was also requested several times to send the rent through cheque at Sukkur after expiry of every calendar month but even that was refused by Mr. Bukhari. The husband of the landlady has not been cross-examined on this point. It, therefore, shows that the landlady had never condoned the delay in payment of rent or the payment thereof in lum sum. If the landlady had accepted the rent in lump sum on one or the other occasion while demanding the payment of rent on regular monthly basis, such conduct of the landlady would not wipe out the default committed by the tenant. In the above-cited cases, it was an established practice whereas in the present case the respondent never condoned such delay but had been insisting on regular monthly payment of rent. In the case of MRs, Alima Ahmed v. Amir Ali (PLD 1984 SC 32) a Full Bench of the Hon'ble Supreme Court has held in a case where the conduct of the landlord leads a tenant to believe that time mentioned in the Rent Ordinance for payment of rent is not to be adhered to; and that subsequently if the landlord wishes to enforce such provision strictly he should first put the tenant on notice to the effect that henceforth he should make payment of rent regularly. In this case it was also held as under.
9. "The alleged practice of the Attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice (Exh. P.10). The Rent Controller was clearly in error in holding that there was no "persistent" or "wilful" default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him."
10. ' In view of the above discussion it is proved by the landlady that she had never condoned the late payment of rent or payment in lump sum but she had always demanded regular monthly payment. There is another aspect of the case. The appellants have argued that the rent for the period July, 1984 to December, 1984 was remitted to the landlady through Cheque No,03466345 dated 5-1-1985 for Rs,5,400 sent to. Her through registered letter No,84 dated 5-1-1985. The present rent case was filed on 2-1-1985 and this letter has been sent after the filing of the rent case.
11. Secondly, the photostat copy of the cheque has been produced in evidence which shows that the cheque is dated 51-1984 and not 5-1-1985. Obviously, therefore, this cheque could not have been sent for encashment by the landlady in 1985 when the same has been said to have been delivered to her.
12. ' In view of above discussion the only conclusion that can be drawn is that the appellants are liable for ejectment on the ground of wilful default in payment of rent. The appeal is accordingly dismissed with costs.
13. ' Above are the reasons for the short order announced in Court on 26th October, 1992.