AJMAL MIAN, J.---This is an appeal with the leave of this Court against the concurrent judgments of the two Courts below i,e, of the learned IIIrd Senior Civil Judge/Rent Controller (East), Karachi, and the learned Single Judge of the High Court of Sindh, passed in Rent Case No,54 of 1985 and F.R.A. No,254 of 1989 respectively, granting ejectment against the appellant in respect of suit shop on the ground of default for the period from July, 1984, to December, 1984.
2. The brief facts are that the appellant had taken on rent suit shop on 1-9-1974 under a tenancy agreement. It is the case of the appellant that the suit shop was purchased by the respondent in February, 1982. It is its further case that after the above purchase, the respondent enhanced the rent from Rs,700 to Rs,800 per month. It has been averred by the appellant that the appellant paid following rent through cheques to the respondent which were lump sum namely:-- Months Cheque No. Amount Cashed on Feb. 82--Jan.83 064090 Dt.12-12-82Rs.9,600 6-1-1983 Feb. 83--June 83 247528 Dt.18-6-83Rs.4,000 3-7-1983 July. 83--Sept.83 247550 Dt.2-10-83Rs.2,400 4-10-1983 Oct. 83--Dec.83 622306 Dt.4-1-84Rs.2,400 9-6-1984 Jan.84--June 84 716735 Dt.2-6-84Rs.5,400 28-11-1984 July. 84--Dec.84 03466345 Dt.5-1-85Rs.5,400 Not presented."
3. It appears that before the remission of the above sixth cheque dated 5-1-1985 for the period from July, 1984 to December, 1984, the respondent filed aforesaid rent case on the ground of default for the above period. The same was resisted by the appellant and inter alia it was pleaded that the respondent resided in Sukkur and that the rent was used to be collected at her convenience in lump sum. However, the learned Rent Controller, after framing issues, recording evidence and hearing the parties; by his aforesaid order dated 14-2-1989 held that there was default for the above period. Against the aforesaid order, the appellant filed above F.R.A. Which was dismissed by the learned Judge in Chambers through the aforementioned judgment dated 3-11- 1992 and wherein inter alia reliance was placed on the judgment of Full Bench of this Court in the case of Mrs. Alima Ahmed v. Amir Ali (PLD 1984 SC 32).
4. Being aggrieved by the above judgment, the appellant filed a petition for leave to appeal and it was canvassed at the Bar that the ratio decidendi of the case of Muhammad Younas Malik v.
Zahida Irshad (1990 SCMR 185); Tahir Ali and others v.Messrs Sh. Miran Bux-Karam Bux and another (1989 SCM R 403) and Muhammad Rafique Chaudhry v. Abdul Hamid and others (1988 SCM R 1385) was applicable to the case in hand and not the ratio decidendi of the cace of Mrs. Alima Ahmed (supra). Leave to appeal was granted to consider, "whether the learned Rent Controller has rightly exercised discretion in favour of the respondent in granting the ejectment order in presence of the above documentary evidence and whether the ratio decidendi of the case of Mrs. Alima Ahmed (supra) has been rightly applied to or whether the above three judgments cited by the learned counsel for the petitioner were more aptly applicable to the instant case".
5. In support of the above appeal Mr. Ali Akbar, learned A.S.C. Appearing for the appellant, has vehemently contended that the two Courts below erred in granting the ejectment order on the ground of default as there was no wilful or deliberate default on the part of the appellant. His further submission was that the appellant's witness Syed Ezazul Hassan Bokhari's statement that the respondent refused to give her Sukkur address and instructed the appellant not to remit the rent at Sukkur address as she would collect the same herself, remained un rebutted and in this view of the matter the impugned judgments/orders are not sustainable On the other hand, Mr. Zafar Alam Khan, learned A.S.C. Appearing for the respondent, has urged that at no point of time the respondent had asked the appellant not to pay rent within the statutory period and that on the contrary the appellant was repeatedly asked to pay rent regularly. He has also invited our attention to sub-para. (3) of para.4 of Syed Ezazul Hassan Bokhari's affidavit- in evidence to point out that the fifth cheque was remitted by the appellant at Sukkur address of the appellant, which negates the appellant's plea that it was directed not to remit the rent at Sukkur address. He has also submitted that the High Court has rightly relied upon the ratio decidendi in the case of Mrs. Alima Ahmed (supra), which view has been reiterated by this Court in the case of Shezan Limited v. Abdul Ghaffar and others (1992 SCM R 2400).
To reinforce the above submissions Mr. Ali Akbar has taken us through the affidavit-in-evidence of the respondent's husband and attorney, Sajjad Ahmad, of Syed Ezazul Hassan Bokhari, a partner of the appellant, and of Miss Rukhsana Abbasi, an employee of the appellant, and the cross- examinations of the above witnesses. In addition to the above, he has referred to the following cases:--
(i) Abdul Aziz v. Abdul Ghani (1986 SCM R 1857): in which the Rent Controller granted the ejectment application on the ground of default but the High Court on appeal reversed the finding of the Rent Controller by holding that the landlord himself accepted the rent in lump sum and thereby did not stick to the terms and conditions printed on the back of the receipts. This Court while declining landlord's petition for leave to appeal observed as under:-- "3. We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification of the Appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by Mst. Hamida Khanum, wife of the petitioner, the respondent started depositing the rent in the Court of the concerned Rent Controller and thus under the circumstances it cannot be said that the respondent is a wilful defaulter. Finding no merit in the petition, the same is dismissed."
(ii) Inayat Ullah v. Zahoor-ud-Din and another (1987 SCM R 1313): In the above case the facts were that the landlord filed an ejectment application on the grounds of default and personal requirement. The same was allowed despite of the contest by the tenant. The tenant's first appeal was dismissed. However, in the second appeal before the High Court, the tenant succeeded and the concurrent judgment of the two Courts below were set aside. From the narration of the facts, it is not clear, as to whether the ejectment order was passed on the above two grounds but from the extract quoted from the High Court's judgment it appears that the ejectment order was granted on the ground of default. The High Court held that factually there was no default on the part of the tenant as he had been regularly depositing the rent with the Rent Controller after the refusal of the landlord to accept the rent. It was also observed by the High Court that the landlord deliberately created difficulties in the way of the tenant by not accepting the rent in the hope that some omission or slip on the part of the appellants may enable him to carve out a ground for their eviction. Whereas the conduct of the tenants was diligent. This Court while dismissing an appeal with the leave maintained the above High Court judgment.
(iii) Muhammad Rafique Chaudhry v. Abdul Hamid and 3 others (1988 SCM R 1385): in which this Court declined leave to appeal against the judgment of the High Court whereby the order of ejectment granted by the Rent Controller and concurred with by the Additional District Judge was set aside on the following grounds:-- "There was no settled mode of payment of rent. Sometimes the petitioner would obtain the rent for 6 months in advance and on other occasions would receive the arrears for similar periods in lump sum. The default ultimately established related to one month. Considering the attending circumstances, the contesting respondents could not be penalized for not tendering the rent for that month within the specified period of 60 days. We should, therefore, think that theorder of the learned Single Judge in the High Court was proper. Leave to appeal is refused."
(iv) Taher Ali and 2 others v. Messrs Sh. Miran Bux-Karam Bux and another (1989 SCM R 403): In the above case the facts were that the Rent Controller rejected the landlord's ejectment application on the ground of default for the reason that he found that the receipts produced indicated that the practice of the landlord was to accept the rent for a year in the middle of the year and since the practice was to collect the rent in lump sum, there was no default. The above order of the Rent Controller was maintained by the High Court. Against the above concurrent judgments, a petition for leave to appeal was filed in this Court, which was declined for the following reasons:-- "After having heard the learned counsel for the petitioners in the light of the record before us we find no ground either in law or on merits is made out for interference with the impugned judgment of the High Court, for, the finding of fact recorded by the two Courts below that it was the practice of the petitioner to collect the amount in lump sum has been based on the admitted documents, namely, rent receipts Exhs. A/B, A/C, A/E, A/F and A/D, which clearly prove payment of rent on yearly basis. There is, therefore, no merit in this petition and it is accordingly dismissed."
(v) Muhammad Ishaq v. Mst. Kubra Begum (PLD 1988 Kar. 533): in which one of us, Saleem Akhtar, J. (as he then was), while dismissing first rent appeal of the tenant, held as under:-- "It is true that if any default is explained or it is beyond the control of the tenant or that it has been created by deceitful and fraudulent means of the landlord the Controller would be justified to exercise his discretion in favour of tenant and hold that no wilful default has been committed. But to establish this fact the burden lies upon the tenant. In the present case the appellant besides the facts that the rent was first offered, and then remitted by money order and on refusal, deposited in Court has offered no explanation why the rent was not tendered from the month of October, 1980 till the month of May, 1981 when it was deposited in Court."
7. On the other hand Mr. Zafar Alam Khan has referred to the above Full Bench case of this Court in the case of Mrs. Alima Ahmed (supra), in which the facts were that the landlady filed an ejectment proceeding against the tenant in respect of a shop situated at Tariq Road, P.E.C.H.S., Karachi. The Rent Controller declined the ejectment on the ground that the landlady had been accepting accumulated rent from the opponent, sometimes in cash and sometimes through cheques and, therefore, there was no wilful or deliberate default. Committed by the tenant. However upon filing of first appeal by the landlady, the Additional District Judge reversed the above finding and held that mere fact that on certain occasions the landlady accepted accumulated rent, did neither alter the legal position nor the terms and conditions of the tenancy agreement were altered. In second appeal before the High Court, the judgment of the Additional District Judge was set aside and the order of the Rent Controller was restored by a learned Single Judge (one of us namely Ajmal Min, J.
Happened to be the author of the above judgment) inter alia for the following reasons:-- "(iii) I may observe that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of the Ordinance, but if a landlord by his representation/conduct/omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance is not to be adhered to, and, thereafter the landlord wishes to enforce the above provision strictly, in that event, in my opinion the landlord should first put the 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 the above provision or in any case the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein. Any other view will result in miscarriage of justice. It is a matter of common knowledge that during last few years in Karachi occupancy value inter alia of commercial premises and their rental have been enormously increased, which has generated desire on the part of some landlords to cause eviction of their tenants and in order to achieve the said object they deliberately cause the commission of default in payment of rent by the tenant."
Upon appeal with the leave of this Court the above judgment of the learned Single Judge was set aside for the following reasons:- "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 'persistentor wilfuldefault 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. The First Appellate Authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the First Appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal. Further from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and, applied. The Ordinance curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller, is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well-being, fairness or in the name of justice."
(ii) Shezan Limited v. Abdul Ghaffar and others (1992 SCM R 2400): In the above case the facts were that the learned Rent Controller granted ejectment order on the ground of default, which order was maintained by a learned Single Judge of the High Court of Sindh. This Court, while dismissing an appeal with the leave of the Court, reiterated the view taken in the case of Mrs. Alima Ahmed (supra) and held as follows:- "It may be pointed out that the Rent Laws place clog on the rights of landlords inasmuch as they cannot cause ejectment of tenants on any other ground than the grounds specified in the Rent Restriction Ordinance, hereinafter referred to as 'the Ordinance', nor they can increase rent more than what has been provided for in the Ordinance. The above rights they had enjoyed under the Transfer of Property Act, 1882, before the enforcement of the Rent Laws. In consideration of the curtailment of the landlordsabove rights, the Ordinance ensures payment of rent to them. Keeping in view the above factum, this Court has consistently held that the provisions relating to payment of rent in the Ordinance should be strictly construed in favour of the landlord."
8. From the above cited cases, it is evident that though in the cases of Abdul Aziz v. Abdul Ghani (supra), Muhammad Rafique Chaudhry v. Abdul Hamid and 3 others (supra) and Taher Ali and 2 others v. Messrs Sh. Miran Bux-Karam Bux and another (supra), this Court while declining leave to appeal referred to the practice relating to payment of accumulated rent by the tenants to the landlords, but there is no discussion with reference to the relevant provisions of the Ordinance, nor there is any reference to the judgment of the Fan Bench of this Court in the case of Mrs. Alima Ahmed (supra). Additionally, in the case of Muhammad Rafique Chaudhry v. Abdul Hamid. And 3 others (stipra), the default of one month was proved and, therefore, the Courts below keeping in view the conduct of the landlords declined to grant ejectment orders which were maintained by this Court while declining leave. The other cases referred to by Mr. Ali Akbar, learned counsel for the appellant, do not deal with the above question of practice of accepting accumulated rent of several months. They referred to the conduct of the landlords, whereas the case of Mrs. Alima Ahmed (supra) relied upon by Mr. Zafar Alam Khan directly deals with the question of practice of making payment of accumulated rent of several months with reference to the provisions of the Ordinance. It has been held that the practice cannot negate the express provision of the Ordinance. The above view has been reiterated in the case of Shezan Limited (supra).
9. Reverting to the factual aspect, we may point out that the appellant in the relevant portion of para.4 of Syed Ezazul Hassan Bokhari's affidavit-in evidence has inter alia stated as under:-- "(4) That as per the direction of the applicant, the applicant used to come herself after three or four months and used to collect accumulated rent from me. Some times she used to receive advance rent, along with a perusal of the above-quoted portion of pari.4 indicates that the fifth cheque in respect of the period commencing from 1-1-1984 to 30-6-1984 was accumulated rent for a couple of months. Some times she used to receive partly advance rent together with the arrears as is evident from Cheque No, 064090 dated 12-12-1982 and Cheque No,247528 dated 18-6-1983.
Whenever the applicant came I had given her Cheque. No rent receipt of cheque was ever issued by the applicant. It is further submitted that even after receiving cheque she did not present the cheque for encashment at her to the bank immediately but used to present the cheque for encashment at her own convenience. Sometimes after long intervals of three to six months. I file herewith photo stat copies of the cheques representing the rent for the period from February, 1982 viz. Commencement of tenancy between applicant and opponent to December, 1984 as Annexure 0/--- to 0/---.
It is submitted that from the commencement of tenancy between the parties up to date the accumulated rent has been collected by applicant. This practice and/or agreement for collection of accumulated rent has come into being at the direction of the applicant. It is submitted that accordingly the applicant has lastly collected rent for 3 months on or about 4-1-1984 but thereafter i,e, after from January, 1984 she did not come to collect the rent so I waited for a longer time, but she did not turn to collect the rent so, I enquired her address but I could not get her address.
However, I succeeded in getting her husband's office address and, therefore, i,e, on or about 2-6- 1984 sent a cheque bearing No,716535 for Rs,5,400 being the rent for six months at enhanced rate of rent of Rs,900 p.m. By Registered Post. I file herewith postal receiptas Annexure 0/8. The said cheque was encashed on or about 28-11-1984. Thereafter, she did not come to collect rent again and .So I again tendered a cheque No,0346634 dated 5-1-1985 by registered post being the rent for the period of July, 1984 to December, 1984. I file herewith a letter issued by Post Office as Annexure 0/9 but the applicant did not present the said cheque for encashment but filed present case on the grounds that rent for the months of June, 1984 to December, 1984 have not been paid. However, in the cross-examination the applicant's husband for the first time disclosed that wrong date on the said cheque No,0346634 has been mentioned sent by the appellant at the respondent's husband's address at Suldcur; which was accepted. In view of the above factual position, there was no justifiable reason for die appellant not to have remitted the rent subsequent to the above period at Sukkur within the statutory period provided under the Sindh Dented Premises Ordinance, 1979, hereinafter referred to as the Ordinance. Admittedly, the appellant sent a cheque for the period commencing from 1-7-1984 to 31-12-1984 on or after 5-1-1985 when the respondent had already filed the above rent case and the default had already taken place.
10. We may point out that there is a marked distinction between a case in which this Court declines to grant leave against a judgment or refusal to grant ejectment order on the ground of default by the Court or Courts below and a case in which this Court is called upon to interfere with a concurrent finding of fact recorded by the two Courts on the question of default in the affirmative.
Grant or refusal of leave in a petition for leave to appeal is a discretionary matter, whereas to set aside a concurrent finding of. Fact recorded by two competent Courts is not a discretionary matter.
This Court cannot interfere with a concurrent finding of fact unless it is contrary to the evidence on record or is violative of some legal principle. The High Court has rightly relied upon the Full Bench judgment of this Court in the case of Mrs. Alima Ahmed (supra) and, therefore, we do not find any infirmity in the impugned judgment.
11. Before concluding the above judgment, we may observe that the question, as to whether a tenant is guilty of a wilful default, depends on the facts of each case. If a landlord by fraud or by any other sharp practice creates a default, the Rent Controller in such a case may hold that there is no wilful default on the part of the tenant concerned warranting grant of ejectment. The High Court would be justified not to interfere with the above finding as an Appellate Court. This Court would also be reluctant to upset the above concurrent finding of fact.
Whereas in the instant case concurrent finding on the question of default is in the affirmative against the appellant, which cannot be said to be contrary to the evidence on record or violative of any legal principle. Nor there is any material on record to conclude that the respondent had created above default by practising any fraud or sharp practice on the appellant.
12. The upshot of the above discussion is that the appeal is dismissed with no order as to costs.
However, at the request of Mr. Ali Akbar, learned counsel for the appellant, and with the consent of Mr. Zafar Alam Khan, learned ASC for the respondent, we allow two yearstime to the appellant to vacate the suit shop as the premises are commercial on the condition that the appellant shall pay rent regularly for the above period, failing which, it will be open to the respondent to initiate execution proceedings for ejectment before the expiry of above period of two years. Additionally, in case the appellant fails to hand over the vacant possession of the suit shop after the aforesaid period of two years, the learned Rent Controller shall issue a writ of ejectment with police aid without any further notice to the appellant.