1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, is directed against the Order dated 13-4-1992, passed by learned VIIIth Rent Controller, Karachi, South, whereby the Eviction Application filed by the appellants against the respondents was dismissed. The facts relevant for decision of this appeal are as follows:-- ' The appellants on 10-5-1990 had filed Eviction Application against the respondents for their eviction from a go down constructed on a portion of Survey No, LY-62-K-13-59/87 on the plea of default in payment of rent. The case of the appellants is that appellant No,2 is the son of the appellant No,1 and they are doing joint business in the name and style of "Honest Timber Trading Company" and are sole proprietors of said Company. It is alleged that the respondents are their tenants in said premises on monthly rent of Rs,1,500 for the last many years and are liable to pay rent in advance before the 15th of each month. The appellants have claimed that the respondents are habitual defaulters and they have not paid rent from January, 1990 to May, 1990, amounting to Rs,7,500. The respondents in their objection denied the allegations of the appellants and maintained that there is no relationship of landlord and tenant between the parties. They have further pleaded that their landlords are `M/s. Honest Timber Trading Company' and not the appellants. They have also denied that they are liable to pay rent in advance before the 15th of each month. According to them, the appellants used to collect rent from them at their convenience by sending previously prepared and signed rent receipt through their representative, who also used to sign the receipt for having received the cheque. Further, they have stated that the appellants, contrary to above practice, stopped sending their representative for collection of rent since middle of 1988 and asked the respondents to send accumulated rent only after they (respondents) were asked on telephone to do so. It is their case that they had sent Cheque No,9477927 for Rs,6,000 dated 31-3-1990 to the appellants and the latter neither acknowledged its receipt nor en cashed it. Thereafter, they sent the rent for January, February, March and April 1990 along with advance rent of May, 1990 by Money Order dated 19-5-1990, which was not accepted by the appellants and was returned back to respondents on 12-6-1990. Since 1-7-1990 they started depositing rent in Court.
2. ' Appellant Abdul Shakoor filed his affidavit-in-evidence and on behalf of respondents the affidavit of Muhammad Amin, Haji Razak, and Muhammad Saleem, were filed. All were cross-examined.
3. From the pleading of the parties, learned Rent Controller settled the following Issues:-
(1) Whether there exists relationship of landlord and tenant between the parties?
(2) Whether opponents have committed wilful default if so, what is its effect?
(3) What should the decree be?
4. ' For Issue No,1 learned Rent Controller decided that there was no relationship of landlord and tenant between the parties. For Issue No,2 he held that the respondents had not committed "Default at all". Consequently, he dismissed the eviction application by the order which has been impugned in this appeal.
5. Mr. Mansoor-ul-Arifin, learned counsel for the appellants contended that the finding of learned Rent Controller that there is no relationship of landlord and tenant between the parties is incorrect and contrary to the admission of the respondents in this regard. The contention is sound and must prevail. Learned Rent Controller in the impugned order has quoted from the cross-examination of the respondents witness Muhammad Amin, wherein he admitted that appellants are the landlords and the respondents are their tenants. Eviction Application has been filed by appellants Abdul Shakoor and Al-Nasir, wherein it has been specifically mentioned that the appellants are the sole proprietors of "M/s. Honest Timber Trading Company". The term `landlord' has been defined in section 2(f of the Sindh Rented Premises Ordinance. According said definition, landlord means the owner of the premises and includes any person for the time being authorised or entitled to receive rent in respect of the such premises. It is an admitted position that the respondents in the past had paid rent to the appellants. Since the appellants are the Sole Proprietors of said Company and the eviction application has been filed by both of the appellants, no objection can be taken to the effect that they are not the owners of the premises. From the tenor of the impugned order it is evident that learned Rent Controller was also of the view that there was relationship of landlord and tenant between the parties. Probably the error crept in the order due to incorrect typing.
6. Accordingly, I hold there is a relationship of landlord and tenant between the parties.
7. ' Learned counsel for the appellants next argued that in spite of irrefutable evidence showing wilful default in payment of rent on the part of the respondents learned Rent Controller recorded the finding that no default was committed by the respondents. Learned counsel also submitted that learned Rent Controller has wrongly come to the conclusion that the respondents had tendered rent on 31-3-1990, although it is established from the evidence available on record that no rent was tendered by them on the said date.
8. ' For deciding above contentions, the evidence of the parties would have to be examined.
9. Appellants' witness Abdul Shakoor, in his affidavit in evidence, stated that the respondents have committed default in payment of rent for the period commencing from January, 1990 to May, 1990.
10. He also stated that appellants always issued receipts at the time of receiving the cheque and not on the next date as is alleged by the respondents. He has specifically denied that Cheque No,9477927 dated 31-3-1990 for Rs,6,000 was handed over to the appellants on account of rent from January to April, 1990. Respondents' witness Muhammad Amin in his affidavit-in-evidence stated that aforesaid cheque of Rs,6,000 was delivered to the appellants, but it was not en cashed and when its receipt was demanded the appellants avoided to issue receipt on the ground that appellant Abdul Shakoor had gone to perform Umra and receipt would be issued after his arrival in middle of May, 1990. According to him, thereafter the respondents made inquiries and it was revealed that said cheque was not presented by the appellants to the Bank for payment.
11. Immediately, thereafter the respondents sent rent for the months of January, February, March and April 1990 along with advance rent of May, 1990 by Money Order dated 19-5-1990 which was not accepted by the appellants. The respondents then started to deposit rent in Court since, 9-7-1990.
12. Above-named respondents' witness, in cross-examination, admitted that the summons of this case was served upon them on 16-5-1990. He also admitted that there was no agreement between the parties regarding the accumulated rent, but maintained that the appellants used to send their representative to receive rent as and when they desired. The respondents' witness Muhammad Saleem in cross-examination, stated that he had delivered said cheque in the office of the appellants but does not remember the name of the person to whom he had delivered it nor obtained any receipt from him. According to him, he again went to the office of the appellants and had talked there with a person about receipts but does not remember his name also. He deposed that thrice he had gone there, but the receipt of cheque was not given to him. The evidence of this witness does not inspire confidence. It is very hard to believe that he had visited the office of the appellants several times, but does not remember the name of any person with whom he had talked there. No suggestion was given to appellants witness Abdul Shakoor, in his cross- examination, that this witness (Muhammad Saleem) had visited the office of the appellants. It appears that after the receipt of summon from the Court the respondents realised that they had committed default in payment of rent, and thereafter the plea of sending rent through cheque was taken. It is not proved that said cheques was delivered to the appellants.
13. ' Mr. Abdul Sattar Memon, learned counsel for the respondents submitted that if the Court comes to the conclusion that default in payment of rent was committed by the respondents, yet, the discretion shall be exercised in their favour as the said default was not wilful and on the contrary it.Was due to manoeuvring of the appellants. In support of this contention, he cited (1) Usman Ghani v. Gulzar Ahmad 1987 CLC 1753 (Karachi), (2) Amina Begum v. Iqbal Hussain 1988 CLC 1816 (Karachi), (3) Muhammad Rafique Chaudhary v. Abdul Hamid and 3 others 1988 SCMR 1385, (4)
14. Ghulam Muhammad Dossul v. Muhammad Hussain 1987 CLC 1799 (Karachi), (5) Abdul Latif v. Munir Ahmad PLD 1987 Karachi 460, (6) L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Karachi 307.
15. ' In Usman Ghani's case, it was held that where it was proved that landlord himself was adopting practice of receiving rent of premises in lump sum after lapse of six or ten months, failure of tenant to pay disputed rent would not make him 'wilful defaulter' and in such circumstances the discretion was rightly exercised in favour of the tenant. In Amina Begum's case, neither there was any tenancy agreement between the parties nor any date for payment of rent was fixed. Tenant had defaulted in respect of payment of two months and landlord was collecting rent after intervals. Under these circumstances, it was held that Rent Controller rightly exercised his discretion in favour of the tenant by dismissing the eviction application. In Muhammad Rafique Chaudhry's case, default was of one month and landlord sometime realised six months' rent in advance and sometime received the arrears in lump sum. Under these circumstances, the discretion was exercised in favour of the tenant. In Ghulam Muhammad Dossul's case, it was observed that landlord himself made tenant to understand that rent was not payable every month, but periodically. In these circumstances, it was held that the tenant had not committed wilful default and the discretion was exercised in his favour. In Abdul Latifs case, it was observed that landlord was in habit of accepting rent periodically in lump sum. For this reason, the discretion was exercised in favour of the tenant and the default was condoned. In L. Hussain's case, it was established from the evidence that there was past practice for collection of rent by landlord themselves and all possible efforts were made by tenant to tender rent to landlord personally, through money order, and by depositing in Court.
16. Under these circumstances, the discretion was exercised in favour of the tenant.
17. ' It would be seen that the main thrust of the argument of learned counsel for the respondents is that in the past the appellants had accepted rent in lump sum after long intervals, as such, the default mentioned earlier was not wilful as the element of negligence or fault on the part of the respondents was missing and on the contrary said default was due to manoeuvring of the appellants.
18. Above contention has no force and the cases cited on behalf of the respondents are distinguishable. In this case, respondent's witness Muhammad Amin, as stated earlier, has clearly admitted, in cross-examination, that there was no agreement between the parties regarding the accumulated rent. Besides, the Cheque dated 31-3-1990 of Rs,6,000 was never delivered to the appellants. Mr. Mansoor-ul-Arifin, learned counsel for the appellants cited Mst. Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489 to contend that mere fact that landlord accepted the rent from tenant periodically would not mean that he does not desire payment of rent in time, as is required by the Ordinance. Hon'ble Supreme Court in the above-cited case has observed as follows:-- " Moreover, it has been consistently held by this Court 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, Haji Muhammad opasim v. Mehran Ali 1983 SCMR 1205; defence based on the ground of landlord receiving or 'collecting the 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, Malka Begum v. Mehr Ali Hashmi 1984 SCMR 755."
19. Accordingly, I hold that the respondents had committed wilful default in payment of rent.
20. ' In consequence, the appeal is allowed with no order as to costs and the impugned order is set aside. The respondents are directed to hand over the vacant possession of the premises in question to the appellants within 4 months from now.