' SALEEM AKHTAR, J.---This appeal with the leave of the Court challenges the judgment passed by the learned Judge in Chambers whereby the appeal filed by the respondent was allowed and the ejectment application which had been granted by the learned Controller, was dismissed.
2. The respondent had filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 on the ground of default in payment of rent from July 1987 up to the filing of the application dated 27-1-1988. In his written statement the respondent pleaded that the application is not maintainable. It is frivolous and vexatious. It was further pleaded that the respondent is a tenant and since the inception of tenancy, appellant's agent or son had been receiving collecting the rent by herself/himself, and that she has stopped receipt/collection of monthly rent without any notice or intimation. All other averments in the application were denied. The respondent filed affidavit of evidence of one Sajjad Beg Mirza, who is the attorney and son of the appellant. Besides reiterating the averments made in the application he stated that the respondent used to pay rent through cross cheque mostly and in cash on few occasions and rent receipts were issued against all payments. The last rent receipt issued on 7-6-1987 in respect of rent for the months of May and June, 1987 was produced along with the tenancy agreement and the general power of attorney granted to the deponent. In the tenancy agreement it was provided that the "tenancy is from month to month and the rent is payable in advance by the 13th of each month". In cross- examination it was stated that "the address of the appellant is not mentioned in the agreement, but it is known to the respondent and that he was not visiting the shop and collecting the rent from the respondent, but his agent used to come to his office and pay the rent. He also denied that he was receiving rent for three to four months together from the respondent. The Court directed him to produce the counterfoils of the receipts issued to the respondent and in compliance thereof he produced three books conaining counterfoils which were exhibited as A/2. He admitted that there are counterfoils to show that rent for three to four months was paid by the respondent at one and the same time, but he had reluctantly accepted it. He denied the suggestion that the rent for July was offered to him in the month of August, 1987. The respondent filed his affidavit of evidence stating that the appellant's son used to come and collect the rent from the shop after three or four months which had become an established practice. The mala fides were also alleged and further that in presence of A.Q. Hussain in August 1987 when the appellant's son was seen at the shop of one Tahir tenant, he had called him and personally offered, but he stated that he should keep it and be taken afterwards. He produced four receipts in which rent was paid for four months, three months, four months and three months. On the basis of this evidence it was pleaded that there was a practice to pay accumulated rent after every three or four months which the appellant's son used to collect personally from the shop of the respondent and without any notice she avoided to collect the rent from July to December. The learned Controller rejected the plea and granted ejectment, but the learned Judge in Chambers in appeal held that the son of the appellant collected accumulated rent of two months and even more as is obvious from the above receipts and as the address of the appellant was not mentioned in the receipt or the agreement of tenancy it is proper to draw a presumption that the son of the respondent used to collect the rent at his own convenience and after July 1987 it seems that he did not collect the rent and made a departure from the established practice seemingly to make a ground for seeking appellant's eviction". The learned Judge, therefore, concluded that the respondent was not a wilful defaulter and that the appellant's attorney who used to collect the accumulated rent failed to approach the respondent for payment thereof.
3. The learned counsel for the appellant contended that there was no practice as alleged and the rent was to be paid regularly in advance every month and having failed to do so the respondent was a wilful defaulter. Mr. Z U Ahmed, learned counsel for the respondent, on the other hand contended that there was a practice between the parties that the rent was to be collected by the appellant's son from the shop of the respondent after every three or four months and it was under this impression that the respondent kept on waiting and even offered the rent for the month of July, but the appellant with mala fide intention and to create a default avoided to accept the rent.
Therefore, no wilful default has been committed by the respondent. From this contention certain facts require consideration, i,e. Whether any practice existed between the parties that the accumulated rent for three or four months was to be paid which used to be collected by the appellant's son. The law requires, as did the tenancy agreement, that the rent was to be paid monthly by the tenant. The agreement does not provide that the appellant will collect the accumulated rent after intervals. For this reason Mr. Z.U. Ahmed, learned counsel for the respondent has relied on four receipts to show that there existed practice between the parties to pay accumulated rent after every three or four months. A particular mode of payment or mutual conduct of the parties becomes a I practice provided it is consistent, uniform, regular and with the consent of the parties. Furthermore, although rules of pleadings do not strictly apply to the proceedings under the Ordinance, yet if any specific plea which goes to the root of the matter and is a main defence, the party should plead mainly for the !c reason that the other side may not be taken by surprise and he may have the opportunity to meet this plea. Mr. Imran Ahmed, learned counsel for the appellant contended that the practice was not pleaded and therefore it should not have been taken into consideration. The respondent had merely stated that accumulated rent was being collected by the appellant which impliedly may mean that there was some arrangement if not practice to pay rent in this manner. Any tenant while raising a material defence, as in the present case, namely, the practice to pay rent in a manner other than the agreed mode between the parties should be specifically pleaded. However, as in the present case both the parties have led their evidence on this aspect, we would refrain from taking a strict view of the rules of pleadings because the appellant cannot be said to have been put to a disadvantage and not allowed to lead any evidence. So far oral evidence on question of practice is concerned, it is only words against words. However, there is documentary evidence also which throws light on this aspect of the case.
The appellant was asked to produce the counterfoils with the object to see whether rent was paid by the respondent regularly after every three or four months. The respondent had produced only four receipts as follows:--
(i) Receipt No, 58 dated 9-3-1985 for December 1984 to March 1985;
(ii) Receipt No, 63 dated 5-9-1985 for June, July and August, 1985;
(iii) Receipt No, 66 dated 9-4-1986 for January to April, 1986; and
(iv) Receipt No, Nil dated nil for May to July, 1986.
' These four receipts range from March 1985 to July 1986, but no receipt has been produced in respect of April, May, September, October, November and December 1985. The tenancy commenced from the year 1975 and the respondent had been able to produce only four receipts to prove practice. The appellant had produced three counterfoils from 1975 up to December 1981 and a photo copy of the receipt dated 7-6-1987 being the receipt of rent for the months of May and June 1987. These counterfoils contain the record of other tenants as well. In most of the cases the rent has been paid every month. In the case of the respondent during 1976 and 1977 the rent has been paid by him every month. So is the case of the appellant except that in the receipt book/counterfoils from 15-9-1977 to 31-8-1979 the appellant had paid rent for January and February 1978 on 16-2-1978 for two months, the rent for April, May and June, 1978 on 23-7-1978, the rent for July and August 1978 on 26-8-1978 (advance rent of August) rent for September and October 1978 on 7-10-1978 (advance rent of October), rent for February and March, 1979 on 28-3- 1979 (advance rent of March). Rent for the remaining month during this period was paid every month. In the counterfoil produced for September 1979 to December 1981, rent for September and October 1979 was paid on 5-2-1980, rent for February and March 1980 was paid on 9-2-1980 (advance rent of March), rent for April and May was paid on 15-4-1980 (advance rent of May), rent for June, July and August 1980 paid on 27-8-1980, rent for November and December was paid on 26-12-1980, rent for May and June was paid on 28-5-1981 (advance rent of June), rent for July, August and September 1981 was paid on 17-9-1981 (advance rent of September), rent for November and December 1981 was paid on 17-11-1981 in advance. From these documents on record it is clear that except for some occasions when the rent was paid for two or three months by the respondent, sometimes it included advance rent of the current month and except for the four receipts that have been produced by the respondent payment of rent regularly after three or four months cannot be established. From other tenants also as is obvious from the counterfoils produced in Court, the rent has been recovered in the same manner as from the respondent. Therefore, no consistent and regular mode of payment of accumulated rent after regular intervals has been established. Therefore, the weak plea of practice which does not dislodge the provisions of law has not been established. Such fragmented evidence of payment of accumulated rent can neither create practice nor develop into an arrangement between the parties to pay rent after every three or four months. The variation in the months for which accumulated rent was paid is also indicative of the fact that there was no regular practice and these assorted instances from the long period from 1975 to 1987 can hardly lead to inference muchless to prove that a I practice had developed which is the anchor-sheet of the respondent's defence. The last rent receipt is for the months of May and June 1987 which was paid on 7-6-1987 which shows that the rent for the month of June was paid before its expiry. In this state of evidence the four receipts relied upon by the respondent cannot prove practice which may compel the Controller to exercise his discretion in favour of the respondent.
4. The fact that the appellant had not given her address to the respondent at any stage does not justify the delayed payment of rent or that he should wait for the representative of the landlord to come and collect the rent. The respondent could have deposited the rent in Court which he did after the filing of the ejectment application. The evidence that the respondent had offered the rent in August 1987 for the month of July 1987 even if believed does not fit in the scheme of things as sought to be proved by the respondent. Firstly, Agha Qaiser is a chance witness. He is an insurance agent and did not produce any document to show that he had visited the respondent in respect of any policy or any other such matter. Secondly, if the understanding between the parties was to pay rent after three or four months, there was no occasion for the respondent to have offered rent for the month of July in the month of August 1987. This itself completely demolishes the respondent's plea of alleged practice. The statement of Agha Qaiser does not improve the respondent's case.
We, therefore, allow the appeal. The respondent is allowed to vacate the disputed premises within six months for which period he shall continue to deposit rent. If peaceful and vacant possession of the disputed shop is not delivered within the specified period, writ of ejectment shall be issued by the learned Controller without notice.