Appellants who are the legal representatives of deceased landlady Mst. Abida Mustafa are aggrieved by the orqer dated 8-12-1984 passed by the learned Controller, Karachi (Mr. Gul Muhammad Bhatti) rejecting her prayer for ejectment of the respondent froth Bungalow No. 10, Muslimabad Cooperative Housing Society.
2. Respondent is the tenant of the appellant (since dead) in the demised premises since 1959. Rate of rent for the last more than 21 years is Rs.1,300 per month and is not in dispute. He has been running Grand E.x School in the demised premises since the inception of the tenancy, Eviction of the respondent was sought on the grounds firstly that there was a default in payment of rent for the period from June to September, 1974, and secondly that respondent had committed acts likely to impair utility and value of the building by makingadditions, alterations and raising construction without prior permission of the appellants as well as KBCA.
3. Ejectment was resisted by the respondent who filed parawise written statement stating that the landlady had been insisting for enhancement of rent which was raised to Rs.1,350 pet month with effect from June, 1974. It was further asserted that the respondent had incurred expenses on repairs of the premises with the consent of the deceased appellant which amount was adjusted towards the arrears of rent. It was for this re4son that the appellant had signified her consent by sending rent receipt on 23-5-1974 for a sum of Rs.9,100 as rent for the months of November 1973 to May 1974 (seven months). It was further pleaded that the appellant lived at Lore and could not collect the rent every month nor had she appointed any rent collector at Karachi for collection of rent. For this reason, the rent amount via, sent to her periodically after interval of a few months according to her own desire and there was a practice to receive the rent in lump-sum which practice wets adhered to in accordance with the wishes of the appellant.
4. On the above pleadings of the parties following issues were struck:
(1) Whether the opponent is Wilful defaulter in the payment of rent?
(2) Whether the opponent has caused any damage to the premises and has made additions and alterations without the permission of the applicant?
(3) What should the order be`?
5. In support of her case appellant (Since dead examined Dr. Riaz Mustafa, her son and attorney and Sharif Ahmed Warraich, Architect Engineer. On the other hand respondent examined himself in rebuttal.
6. On consideration of the evidence, learned Controller decided both issues against the appellants and dismissed the application giving rise to the instant appeal.
7. From the pleadings of the parties and evidence on record, it transpires that there was an agreement of tenancy dated 17-10-1959 between the parties but for the reasons best known to them none of them has bothered to produce the same in evidence. It further seems that the said agreement was valid for a period of three years and the rate of rent was revised from time to time by mutual consent of the parties. In the absence of the terms and conditions of tenancy before me, I would proceed on the assumption that after the expiry of agreement tenancy continued according to oral understanding between the parties. I would thus be entitled to assume that there was no date fixed for payment of monthly rent.
8. Learned counsel for the appellants contended that the rent for the months of June 1974 to October 1974 was remitted through cheque dated 2-10-1974 which fact by itself was sufficient to establish default in payment of rent on the part of the respondent. In the absence of the agreement of tenancy or the date mutually fixed for payment of rent, rent for the month of June would fall due for payment within 60 days after the close of June i.e., on or about 29th August while the rent for month of July would be payable on or about 30th of September. As observed earlier rent was, however, remitted through cheque dated 2-10-1974 for beyond the period permitted by the statute.
9. Case of the respondent, however, is that the deceased landlady living at Lahore having no rent collector at Karachi, there was a practice of collection of rent in lump-sum after the interval of a few months. According to him he used to tender rent as per practice and desire of the landlady by way of cheque in lump-sum which was remitted to her at Lahore and she accepted the cheque sent by him even after the institution of the rent case. In paragraph 3 of his affidavit---in-evidence, he cited nine instances to show that rent was remitted through cheques from time to time. Of these instances, first five instances pertain to the period prior to June 1974 whereas as observed earlier rent for June 1974 to October 1974 was remitted through cheque dated 2-10-1974. Rent for the month of November 1974 onwards was remitted well within time and this circumstance does not support the plea of the respondent that there was a practice of payment of rent in lump-sum at the desire of the landlady.
10. No doubt, appellant Riaz Mustafa in his evidence admitted that his mother died in 1975 and during her lifetime he used to collect rent and carry out the correspondence on her behalf, he made a grievance that the respondent did not pay rent regularly. He stated that sometimes the respondent used to pay rent every month regularly and sometimes he used to pay it after four or five months and he had, been writing and telephoning him for payment of refit regularly.
11. Under the provisions of the Rent Laws, a tenant is under a statutory duty to pay rent to the landlord every month within 15'days of the date fixed for payment of rent and in the absence of any agreement as to date for payment of rent within 60 days of the month when the rent falls due for payment. Mere Fact 1A that landlady had been generous enough to accept the accumulated rent for four months at a time would not mean that the respondent was licensed to continue this practice at his own whims nor did it override the statutory provisions of law. This question came up for consideration before the Supreme Court in Abdul Rashid v. Saleh Muhammad 1980 SCM R 506 where Aslam Riaz Hussain, J, speaking for the Bench held as under: -- "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cues the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitting down the requirement of law that the rent has to be paid by the tenant by the 15tr of every month."
12. Similar view was expressed in S.Riaz Ali v. Shabbir Ahmed Khan 1971 SCM R 598 laying down that a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/respondent for several months at a time, showed that to landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent.
13. In Muhammad Hasan & Co. v. Mahmood Ahmed Khan 1975 SCM R 355 where the tenant had taken up the same position, namely that a practice has grown up to pay rent in lump-sum after certain interval it was observed that .In any event such a practice was contrary to section 13 of the West Pakistan Urban Rent Restriction Ordinance and, therefore, the former could not over-rule the law. "
14. In Civil Petition No.K-16 of 1979 re: Tar Muhammad Jano v. Tahir Ali and others while dismissing the petition Supreme Court laid down the following dictum:-- "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his def4~lt for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation the tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
15. Judgment in the case of Abdul Rashid v. Saleh Muhammad was followed in subsequent case of Muhammad Qasim v. Mehrban Ali 1983 SCM R 1205 and identical view was expressed in Mrs. Alima Ahmed v. Amir Ali PLD 1984 SC 32.
16. In the last-mentioned case, High Court had held that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of Ordinance, but if a landlord by his representation/conduct/omission leads to a tenant to believe that the time mentioned in above provision of Ordinance is not to be adhered to, and thereafter the landlord wishes to enforce above provision strictly, in that event, landlord should first put tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of above provision or in any case ejectment proceedings in such a case should be preceded with service of a notice calling upon tenant to clear arrears of rent within reasonable time specified therein. It was held by the Supreme Court that Court ought to apply and interpret provision of law and not to superimpose a new procedure extraneous to such law. It was further observed that the Ordinance protects tenants against eviction and enhancement of rent, thereby curtailing plenary power of landlord to deal with his property and tenant thereof. Promptness in payment of rent with option to tenant to deposit rent with Rent Controller being condition precedent for enjoying protection, same cannot be relaxed or diluted on grounds of economic well being, fairness or in name of justice.
17. It may be observed from the above dictum that the Supreme Court did not approve of the view taken by the High Court yet Mr. Mirza, learned counsel for the appellants referred to letter dated 26- 10-1973 Exh.l/6 addressed to the respondent taking an exception to the adjustment of Rs.950 spent by him at his discretion. By this letter the respondent was reminded that according to the agreement he had to pay monthly rent in advance by 7th of each month while he was not remitting the same in time in spite of repeated demands. Be that as it may, from the evidence on record coupled with the admission of the respondent that the disputed premises were let out to him on monthly rental basis and that the rent was payable in advance. I .Am of the considered view that there was a wilful and deliberate default on the part of the respondent in remitting the rent at least for the months of June and July, 1974. Learned Controller by taking a compassionate view to the contrary acted illegally which cannot be sustained at law.
19. As to the impairment of utility of the rented premises, there is categorical admission by- the respondent himself that he had raised construction on the upper floor though temporary.
According to him he had constructed 3 or 4 rooms without any permission (of the appellants) either in writing or oral of the landlord. He added that it being temporary he did not feel it necessary to have permission. I am of the view that by making additions alterations in the house and raising construction in the building without the permission of the deceased landlady he has rendered himself liable to eviction. I am further fortified by yet another admission of the respondent that outer rooms are built of cement blocks in two rooms whereas remaining two rooms were made of tin plates. Besides there is unrebutte and unchallenged. Evidence of Architect Sharif B Ahmed before the Controller which tends to show that the respondent had raised construction of rooms with C.B. Wall and sheet roof in the open compulsory space and on the top of roof the construction was in progress. This witness further stated that the said construction was unauthorised and he had inspected I the site at the instance of the appellants in pursuance of notice dated 3-9-1979 issued by Assistant Controller of Buildings Master Plan Department an ` Authority constituted under the Sindh Building Control Ordinance. A copy of the notice Exh.2/1 is also on record which materially and substantially supports the case of the appellants. Needless to point out neither the Architect was cross-examined nor was the authenticity of the notice disputed before the Controller. This circumstance alongwith the clear and candid admission by the respondent is enough to conclude that the latter made admissions and alternations to the property and raised constructions un-authorisedly and without the permission of the appellant. I would thus conclude that the learned Controller acted illegally in brushing aside this piece of evidence and dismissed the eviction application C wrongly which cannot be upheld.
20. For the aforesaid facts and reasons, I allow this appeal with costs and set aside the impugned order. Respondents are allowed six months' time subject, however to deposit of rent, to vacate the premises and make alternate arrangements. 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.