1. This First Rent Appeal is directed against the judgment dated 16th April, 1989 passed by the learned Rent Controller No,II Karachi (South) dismissing the Ejectment Application No,1593 of 1987 filed by the appellant/landlord against the respondent/tenant.
2. Briefly stated, the facts are that the appellant as one of the co-owners and as attorney of the remaining co-owners of Building on Plot bearing No,6 Sheet K-9-A known as "Nazar Ali Muhammad & Brothers Building" situated at Lea Quarters, Lea Market, Karachi filed the petition for ejectment of the respondent from a shop bearing tenement No,6 in the said building on the grounds of default from the month of January, 1987 and onward. The other grounds taken in the ejectment petition were that the tenant had made illegal and unauthorised additions and alterations in the said premises and had also demolished/removed bath-rooms and common gallery and that he had also obstructed/closed the common gate without permission/consent of the appellant and thereby he had materially impaired value and utility of the said property. Further ground taken was that one of the co-owners namely Feroz Ali son of Nazar Ali required the said shop in good faith for his personal bona fide use.
3. ' The respondent/tenant contested the case by filing written statement whereby denying all the allegations made in the ejectment application, the tenant stated that "it is submitted that as per established practice in vogue since the beginning, the rent had been collected from the opponent by the landlord M/s. Nazar Ali Muhammad and brothers at intervals of 8 months, 10 months and 12 months to their convenience against printed rent receipts." The Rent Controller framed the following points for determination: (1)Whether applicant is one of the co-owners/landlords of demised premises and General Attorney of other co-owners?
4. (2)Whether opponent has committed wilful default in payment of rent?
5. (3)Whether opponent has made additions and alterations in the demised shop unauthorisedly?
6. (4)Whother Feroz Ali son of Nazar Ali requires the demised shop for his personal bona fide use in good faith?
7. (5)Whether application is not maintainable for want of service of notice under Section 18 of the Sindh Rented Premises Ordinance, 1979?
8. (6)What should the decree be?
9. The applicant/landlord examined Ismail son of Rehmatullah and Feroz Ali S/o Nazar Ali while the respondent examined Wali Muhammad son of Ahmed Bux partner of the respondent/tenant. Rent Controller after discussing the evidence produced by the respective parties and after hearing the learned counsel, vide order impugned herein dismissed the ejectment application.
10. In this matter a learned Single Judge of this Court had heard the appeal in the absence of the respondent and vide judgment dated 8-3-1992 the Appeal was allowed and the order of the Rent Controller was set aside and the eviction application was allowed on the issue of default. The other issues were not pressed by the appellant's counsel. The respondent then filed an application under Order 41 Rule 21, C.P.C. read with Section 21 of the Sindh Rented Premises Ordinance, 1979 for re- hearing of the appeal which application was also dismissed by the learned Judge vide order dated 23-5-1993. The respondent challenged the said order before the Honourable Supreme Court in Civil Petition No,413-K/1993. Leave was granted and the Civil Appeal No,960 of 1993 was heard by the Honourable Supreme Court and the matter was remanded to this Court with the following observations: "The question, whether the appellant was served for 8-3-1992 in accordance with law keeping in view the above submissions of the learned counsel for the parties, will be decided by the High Court as we are remanding the case."
11. ' After remand, the matter was fixed for hearing of the aforesaid application on 21-1-1997 and by a consent order, the judgment dated 8-3-1992, which was passed in the absence of the respondent, and without service of notice of intimation upon the respondent was re-called and the parties' counsel agreed to argue the case on merit. The matter was fixed for regular hearing on 8-9-1997 when the respondent's counsel Mr. Akhlaq Ahmed Siddiqui was present and the appellant and his counsel were called absent and the matter was adjourned to 12-9-1997. On 12-9-1997 the appellant's counsel was present but Mr. Akhlaq Ahmed Siddiqui was called absent. The arguments of the appellant's counsel were heard in the morning and the matter was kept aside for argument of the respondent's counsel. It was a Friday and there was no tea break as such the court waited for Mr. Akhlaq Ahmed Siddiqui upto 11.05 a.m. but he did not turn up, and the matter was then reserved for judgment.
12. ' The contention of the appellant's counsel was that the respondent had not paid the rent since January, 1997 and he was, therefore, a defaulter in payment of rent. The learned counsel did not press the appeal on other issues. He relied upon the judgment passed by the learned Single Judge, in this appeal on 8-3-1992 in support of his arguments. The learned counsel also did not cite any case law in this case.
13. With regard to the issue of default, the respondent in his written statement had clearly stated that the landlord used to collect the rent after interval of 8 months, 10 months and 12 months according to their convenience. The appellant Ismail son of Rehmatullah in cross-examination admitted that he used to collect the rent from the opponent for months together. Further, the respondent's witness Wali Muhammad son of Ahmed Bux alongwith his affidavit in evidence filed true copies of the rent receipts as Exhs.O-1 to 0-11. A perusal of the receipts shows that Exh.0-1 is the rent receipt for 12 months from January, 1986 to December, 1986. Exh.0-2 is rent receipt for 8 months from May, 1985 to December, 1985. Ex.0-3 is the rent receipt for 14 months from March, 1984 to April, 1985. Ex-0- 4 is the rent receipt for 12 months from November, 1977 to October, 1978. Exh.0-5 is the rent receipt for 21 months. There are other rent receipts also showing the lump sum payments of rent. The receipt No,1264 dated 12-3-1987 is for the rest from January, 1986 to December, 1986 and, therefore, rent from January, 1987 to December, 1987 was sent by Money Order No,4303 dated 23-9-1997.
14. In view of the above, there is no dispute about the fact that the appellant had been accepting the rent in lump sum and this practice continued for quite a long period till filing of the ejectment case.
15. Under the circumstances of the case, if the landlord wanted to discontinue the past practice of accepting the rent periodically and wanted that the tenant should pay the rent every month, he should have intimated the tenant that the tenant should pay the rent every month otherwise he will be held as a defaulter. The record shows that no such intimation was sent to the tenant in this case. In this context I may refer the judgments reported in CLC 1987 Karachi page 1753 and 1986 SCMR page 1857. In the first reported case, relying on the dictum laid down by the Honourable Supreme Court in SCMR 1986 page 1857, the learned Single Judge of this Court dismissed the appeal. The relevant observations of the Supreme Court in SCMR 1986 page 1857 are as under: "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 to the appellate, Court to exercise its discretion against him in dismissing his eviction petition."
16. In view of the above discussion, I am of the view that the Rent Controller in this case had exercised his discretion properly in favour of the tenant while dismissing the ejectment application on the ground of alleged default in payment of rent.
17. Considering the facts and the law as discussed above, I find no merit in this appeal, which is dismissed with no order as to costs.