This second appeal is directed against the order dated 28th of January, 1975 passed by the learned Additional District Judge, Multan, dismissing the first appeal of the appellant and confirming the order of ejectment dated 10th of June, 1974 passed by the learned Controller, against the appellant.
2. Ejectment application in this case was filed by the respondent against the appellant in respect of shop No. 191, Ward No. 3-H, Hussain Agahi, Multan City mainly on the ground of default in the payment of rent for the period April 1973 to August 1973. So far as relationship of landlord and tenant between the parties is concerned the same is admitted by the appellant vide Exh. P. 1, rent Dote executed by him in favour of the respondent in March, 1965. It is also admitted that the appellant has been occupying the shop in question as tenant prior to the execution of the rent note since 1959/60. The rent note initially was for a period of 11 months whereby the appellant admitted to pay rent at the rate of Rs. 200 against receipt in advance on the first day of every month. It was alleged by the respondent that the appel--lant had been paying rent, previously, regularly every month against receipt but he committed default for the said period and did not pay the rent in spite of demand. The allegation as made by the landlord was denied by the appellant. His plea was that the respondent-landlord used to receive rent periodically after intervals and not regularly every month. In support of that contention, rent receipts Exhs. R/ I to R. 3 were produced. It was pleaded that there was no willful default on the part of the appellant and as such no ejectment order could be passed against him.
3. Issue No. 1 with regard to default in the payment of rent was framed by the learned Controller on the basis of the pleadings of the parties The other issue with regard to demand to the property is not relevant for the decision of the present appeal as the same having been decided by the Controller against the landlord, finding in this behalf was not challenged before the higher forum.
4. The respondent-landlord has examined 3 witnesses including himself. So far as default in the payment of rent is concerned his statement is the solitary one with regard to that. The appellant has examined as many as 4 witnesses including himself. R. Ws. 1 to 3 examined by the appellant have stared that amount of Rs. 600 as rent for the period April to June, 1973 was tendered by the appellant to the respondent in their presence but he refused to receive the same. This evidence may not be of any use to the appellant in view of the admission made by him in cross-examination that at the time when he went to pay the amount of Rs. 600 as rent to the landlord, he was not accompanied by anybody. It means that he went all alone to pay the rent and the witnesses produced by him to prove this payment did not accom--pany him.
5. It has been vehemently contended that since the respondent was in the habit of receiving rent periodically and after intervals, therefore, he was tendered rent by the appellant for the period of April 1973 to June 1973 which he duly received, but did not issue him any receipt on the ground that he had no printed receipt, at that time. According to the appellant he again tendered him the rent for the month of July 1973, which was not accept--ed by him. Thereafter the appellant under the compelling circumstances sent amount of Rs. 800 being rent for the months of July to October, 1973 to the respondent which was refused to be received by him. In order to prove that he has been paying rent periodically, the appellant has produced 3 rent receipts Exhs. R. 1 to R. 3 which have been admitted by the respondent to have been executed by him. The first receipt is dated 16th of March 1973 and is for the period of February to March, 1973 for amount of Rs. 400, the receipt dated 18th of January 1873 for Rs. 600 is for the period November 1972 to January 1973. Similarly Exb. R/3 which is dated 12th of October 1972 is for Rs. 600 for the period August, September and October 1972. It is significant to notice that the respondent while appearing as P. W. 3 had admitted in his statement that he used to recieve rent collectively and periodically. He has however, denied that amount of rent for the period April 1973 to June 1973 was tendered to him by the appellant. It is also admitted by P. W. 2, vide his statement dated 26th of February 1974, that the appellant has been occupying the shop as tenant for the last 10/12 years meaning thereby that his tenancy started from 1961-62 though according to the appellant he occupied the shop as such in 1959. There is no allegation whatsoever in the statement of the respondent-landlord that the appellant prior to April, 1973 ever defaulted in the payment of rent, rather on the contrary in his statement as P. W. 3 he has alleged that the rent was no paid to him since April, 1973 meaning thereby that prior to that he has been receiving the rent regularly, though periodically. The evidence produced by the parties, as discussed above, does not show conclusively that the appellant committed default in the payment of rent of the period in question. It is difficult to come to a definite finding in this behalf, against the appellant. The argument that since the said amount was not paid against any receipt, therefore, its payment cannot be deemed to have been made, has no significance in the circumstances of the case. In spite of the fact that accord--ing to the terms and conditions of the rent such payment is to be made against receipts but such mode of payment Can be changed by the `practice's adopted by the parties. The terms and conditions, as mentioned in the rent note Exh. P. 1, are subject to rebuttal which I think has been proved by the appellant on satisfactory basis. If he had produced only one receipt showing the payment of rent on collective basis, the same may not have proved his case. He has produced as many as 3 receipts showing that the rent was accepted by the landlord periodically after intervals It is al flays open to a tenant to show in such cases that mode of payment of rent was changed contrary to the terms of the agreement arrived at between the parties. If it is proved to be so then it does not mean that such change cannot be taken into consideration as the same had come into being by the consent of the parties. In such a case tenant can be under a genuine impression that since payment of rent is to be made periodically, therefore, there would be no default on his part if he pays rent after some intervals. In the present case the terms and conditions of the tenancy, so far as the payment of rent is concerned bad been changed by the conduct of the landlord himself who had been accepting rent periodically and who by his conduct gave impression to the appellant that if he pays rent even after some months, he would not commit any default. This fact is also proved by the statement of the landlord himself, as referred to above.
6. It has been argued on behalf of the respondent that acceptance of rent by the landlord after intervals does not mean any change in the terms of contract, rather on the contrary it amounts to condone the delay in the payment of rent on the part of the landlord. The question of condonation, can be determined in context of the circumstances of each and every case. If a landlord by his conduct has given an impression to his tenant that payment of rent after intervals would not amount to default then it cannot be said that acceptance of periodical rent on his part would amount to condonation of delay.
7. The learned Controller while deciding issue No. 1 against the appel--lant has relied upon Syed Riaz Ali v. Shabbir Ahmad Khan (1971 SCMR 598The tenant in that case had relied upon receipts of rent for 10 months in order to show that terms and conditions of the tenancy with regard to payment of rent had been varied by the landlord by his own conduct by accepting rent after intervals. This contention was repelled by the Supreme Court on the ground that acceptance of rent by the landlord after several months shows that he had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent. Similarly such contention was also repelled in Messrs Textile Trading Company Ltd v. Sayed Jalil-ur-Rehman and 7 others (1972 SCMR 384). In that case it was pleaded by the tenant that since the landlord used to collect the rent after intervals of several months in lump sum, therefore, by his conduct he bad changed the terms and conditions of the lease and as such payment of rent by the tenant after intervals of some months did not amount to default on his part. Since the landlord had denied any such 'practice' on his part, therefore, the conten--tion such raised was repelled. It is significant to notice that no rent receipt showing the rent having been received after interval of months was produced by the tenant in that case. However, it was observed by their Lordships of the Supreme Court in Muhammad Alam v. Nur Mohammed (1973 SCMR 606that the Rent Controller could condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that the rent was not to be paid every month. In that case it could be said that there was not deliberate default and the Court in such case might exercise discretion against directing eviction of, the tenant, In that case the tenant had pleaded the payment of rent after interval of 2/3 months and in support thereof he had filed only one rent receipt. The learned Controller as well as learned lower appellate Court accepted the plea of the tenant but their findings in this behalf were set aside by the High Court on the ground that one solitary instance of payment of rent for 3 months did not constitute 'practice' which will vary the mode of payment of rent. The Supreme Court upheld the judgment of the High Court with the observations that if the rent was paid invariably after 2/3 months in the course of 3J years as alleged by the tenant, he would have produced many more receipts and as none else was produced, it could be safely inferred that except the solitary instance, mentioned above, rent was paid by the appellant every month or else the landlord-respondent would have sued for his eviction earlier. Since the change in the mode of payment of rent was not proved by produc. Ing more rent receipts, therefore, the plea raised in this behalf by the tenant was not accepted.
8. This aspect of the case was also examined in Muhammad All Ahmad v. Zia ul Islam (PLD 1973 Kar. 56The plea of the tenant that since the rent was accepted at intervals by the landlord, therefore, payment in such manner did not constitute any default, was not accepted mainly on the ground that no documentary proof in this behalf was brought on record. It was however, observed that estoppel in such case on the part of landlord could arise only where a party had altered his position to his detriment on account of the representation of another, and the burden to prove such estoppel fell heavily on the party raising plea in this behalf. Reliance was also placed by the learned Single Judge on 1971 SCMR 598, already referred to above.
9. This point was also considered in Sajjad All Khan and 2 others v. Pir Bakhsh J! Mehr (PLD 1972 Kar. 229). It was held that where it was proved on the record that the landlord was in the habit of accepting arrears of rent periodically from the tenant in lump sum and the Controller refused to order ejectment holding that there was no wilful default on the part of the tenant, the Controller had exercised his discretion judicially and properly in favour of the tenant. It was proved in that case that the landlord had been accepting rent after intervals of months and this used to be the 'practice' for the payment of rent.
10. The facts and circumstances of the present case are quite similar to that as reported in Muhammad Shafi v. Iqbal Ahmad and another (PLD 1965 Lah. 23In that case the premises in question were occupied by the tenant since 1947 and he had not made any default in the payment of rent except for the disputed period of three months, October, November and December. Since he could not produce any receipt in lieu of payment of rent, therefore, he was found to be defaulter for the said period by the Controller as well as by the lower appellate Court. It was found that the circumstances of the case as well as evidence produced on record were not sufficient for coming to the conclusion that the tenant had committed default in the payment of rent. It was found that it was not possible in view of that to give conclusive finding safely one way or other whether rent was in fact paid for these three months or remained in arrears. In the circumstances it was held that doubt was to be resolved in favour of the tenant. The order of ejectment passed by the learned Courts below was consequently set aside. Similarly in the present case the appellant has been occupying the shop in question since 1959 and there has been no allegation of default on his part except with regard to the period w. e. f. April, 1973. It is proved on record, as discussed above, that periodic payment of rent was accepted by the landlord and as such terms and conditions of lease with regard to payment of rent had been changed by the conduct of the landlord himself. It is also proved on record D that since receipts for the payment of rent for April to June, 1973 were not issued therefore, amount of rent for July to October, 1973' was sent by the appellant by money order which was refused to be received. It is not possible to give conclusive finding safely as to whether rent was paid or not, in the circumstances of the case as well as in view of the evidence on record. In this view of the matter discretion in passing the ejectment order should not be exercised against the tenant (appellant).
11. It has been argued on behalf of the respondent that in case of non--payment of rent, it is obligatory to pass ejectment order against the tenant. Such question can be resolved only in the circumstances of each and every case. If default has been committed by a tenant deliberately then order of ejectment against him should be passed, but in case deliberate default is not proved then it is discretionary with the Controller to pass such order. He may or may not, pass ejectment order against the tenant in the given circumstances of the case though default in the payment of rent is proved. It has been held to be so in Muhammad Shafi v. Iqbal Ahmad and another and Major Feroze Din Khan v. Sh. Muhammad Amin (PLD 1967 Lah. 966
12. For the aforesaid reasons, the impugned orders passed by the Controller as well as by the learned lower appellate Court directing the appel--lant to vacate the shop in question, are hereby set aside. The appeal is accepted but in the peculiar circumstances of the case, there will, however, be no order as to costs.