' NASIR ASLAM ZAHID, J.---Tenants M/s. Abdul Razzaque Abdul Sattar are appellants in this appeal which arises out of their petition for leave against the impugned judgment dated 29-1-1995 of a learned Single Judge of the Sindh High Court allowing First Rent Appeal filed by respondents/landlords against the order of the Rent Controller whereby the Rent Controller had dismissed the ejectment application of the respondents filed on the ground of default in the payment of rent. We have heard learned counsel and have also perused the record with their assistance.
2. All the relevant facts are given in the leave granting order dated 18-12-1996 which reads as under: "This petition for leave to appeal is directed against the judgment dated 29-1-1995, passed by the learned Single Judge of the High Court of Sindh, 'Karachi, whereby he allowed the appeal filed by the respondents-landlord, set aside the judgment of the learned Rent Controller and directed eviction of the petitioners from the godown premises in question.
(2) Briefly stated the petitioners have been tenants of the respondents-landlord for the last several years. The respondents filed an application before the Rent Controller, Karachi South, seeking ejectment of the petitioners from the godown premises in question on the ground of default in payment of rent from January to May, 1990.
(3) The petitioners-tenants contested the application and denied the default. They pleaded in their written statement that, as per oral understanding and the practice, the respondents used to collect rent from them at their convenience and after intervals of several months, through their representative, who after collecting rent used to pass on pre-signed receipts by the respondents and sign the counterfoils of the cheques in token of receipt of rent, but as he did not come.To receive relit as usual, the petitioners sent Cheque No,9477927, dated 31-3-1990 for Rs,6,000 to the respondents towards rent but the latter deliberately did not encash the cheque and also did not send the acknowledgement receipt of the cheque. On coming to know of it, the petitioners sent the rent for January, February, March and April, 1990 alongwith advance rent of May, 1990, by Money Order, dated 19-5-1990, which was refused by the respondents and the same was returned to the petitioners on 12-6-1990, whereafter the petitioners deposited the rent in Court, and since then had been depositing rent in Court. The petitioners also pleaded that on the understanding given by the respondents-landlord themselves the latter had been receiving rent in lump sum for several months together, and in support produced their book of account showing payment of rent to the respondents and also examined witness to prove delivery of the said cheque at the office of the respondents, and also produced as many as 9 receipts, with which the respondents were duly confronted in the evidence, which showed that the latter had been receiving rent in lump sum for number of months together without demur.
(4) The learned Rent Controller after carefully appraising the evidence on record held, that no default was committed by the petitioners and exercising discretion in their favour dismissed the eviction application vide his judgment, dated 13-4-1992.
(5) The respondents-landlord thereupon filed an appeal in the High Court, wherein the learned Single Judge differed with the learned Rent Controller, allowed the appeal and directed ejectment of the petitioners from the premises in question. Hence, this petition.
(6) Mr. K.A. Wahab, learned counsel for the petitioners, inter alia, contended that the learned High Court disbelieved payment of rent by Cheque for Rs,6,000, for the period in question, merely on the ground that he did not find the evidence of the petitioners' witness, Saleem, convincing, though in support of their plea the petitioners had also produced book of account showing payment of rent by the cheque which was delivered to the respondents, but the learned Judge failed to consider the same.
' The learned counsel next contended that it had been amply proved on record that on not less than nine occasions the respondents had received rent in lump sum for a number of months together; as such, the learned Rent Controller was perfectly within his jurisdiction and was justified in exercising the discretion in favour of the petitioners and declining their ejectment.; the learned Judge in the High Court was, therefore, in error in interfering with the discretion rightly exercised by the learned Rent Controller.
' The learned counsel further argued that the learned Judge in the High Court in holding the payment of rent by cheque as not convincing proceeded on the assumption that the petitioners had sent the cheque after they received the summons of the Court on 16-5-1990 and therefore, sending of the Cheque was an afterthought, whereas the cheque is dated 31-3-1990 and the summons were issued by the Court in May, 1990, and therefore, the learned High Court was in error in allowing the appeal and directing ejectment of the petitioners.
(7) After hearing the learned counsel, we are inclined to grant leave to consider the above contentions. The stay order granted earlier shall continue. "
' After denying that they had not paid rent for the period from January to May, 1990, the stand of the appellants in their written statement was that a cheque for Rs,6,000 (for 4 months at the admitted rate of 1,500 per month) for payment of rent of January and February, 1990, and advance of rent of March and 'April, 1990, was sent to the landlords in the usual agreed course and the landlords as usual without any protest accepted the cheque and kept the same with themselves but after about a week when the landlords did not send rent receipt as usual, enquiries were made by the appellants and they were informed that Abdul Shakoor, had gone to perform Umra and after his return in middle of May, 1990, the rent receipt would be sent to the appellants. It was further pleaded that even in middle of May, 1990, when the appellants did not receive the rent receipts they sent their man but the landlords' representative refused to give receipts and then the appellants made enquiries from their banker and found that the landlords had not sent the cheque for collection and, in the circumstances, the appellants sent the rent of January to April, 1990, alongwith the advance rent of May, 1990, by money order dated 19-5-1990, but the money order was refused and then the appellants started depositing rent in a miscellaneous rent case with the Rent Controller since 1-7-1990.
' The High Court did not accept the factual plea of the appellants that they had sent the cheque in March, 1990 towards the payment of rent. The High Court rejected this factual plea as follows:-- "Abovenamed respondents' witness, the 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 no obtained any receipt from him. According to him, he again went to the office of the appellant 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 appellant's 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 cheque was delivered to the appellants."
This factual finding of the High Court, which is based on proper reasoning, is not liable to interference.
3. The other plea raised by learned counsel for the appellants was that there was a practice for payment of rent for practice, even if the rent was sent in May, 1990, it would not be a case of wilful default and, in the circumstances, discretion having been exercised on the basis of this practice by the Rent Controller, the High Court erred in interfering with the order of the Rent Controller and allowing the appeal of the respondent and ordering ejectment of the appellants.
' As already noted, in their pleadings, appellants had taken up the plea that from about middle of 1988, stopped sending their representative for collection of rent and asked the appellants to send accumulative rent for 2 to 3 months, after being asked on telephone to do so. It was further pleaded that, accordingly, on telephone call of the landlord, appellants used to send accumulative rent for 2 to 3 months by cheque which the landlords used to keep for 2 to 3 days and then used to send the receipts for the appellants.
This plea contradicts the first stand of the appellants that the rent had already been sent in March, 1990, which factual plea has not been believed by the High Court. We have also, from The original record of the Rent Controller, perused the rent receipts for the period starting from middle 1988, details whereof were also given in the order of the Rent Controller, and we find that all of these receipts from middle of 1988 to December, 1989 show that rents were always paid during the period allowed by the Sindh Rented Premises Ordinance. It was only during the crucial period from January, 1990 onwards when rent was not paid within time, inasmuch as the rent due from January, 1990 onwards was remitted through money order in May, 1990 and that also after the summons of ejectment case had been served upon the appellants on 16-5-1990. The appellants had, therefore, committed default in the payment of rent for which they were liable to be ejected under the provisions of the Sindh Rented Premises ;Ordinance, 1979 and no case is made out for interference in the judgment of the High Court allowing the first rent appeal filed by the respondents.
4. We may add that the High Court very correctly relied upon the judgment of that Court in Mst.
Hajiani Aisha v. Abdul Waheed (PLD 1989 SC 489) in accepting the contention that the mere fact that the landlord accepted the rent periodically would not mean that he does not desire payment of rent in time as required by the Sindh Rented Premises Ordinance. In the aforesaid judgment of Hajiani Aisha, this Court 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 accept rent to be paid in time as required by the Ordinance, Haji Muhammad Qasim V. Mehran Ali 1983 SCM R 1205; defence based on the ground of landlord receiving or collecting the rent at the 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 SCM R 755."
Reference can also be made to the following decisions where it has been held that the practice of accepting accumulated rent or sending of monthly rent bills by a landlord, in no way, absolves the tenant from discharging his statutory obligation of paying the rent under the provisions of rent laws:
(i) Tar Muhammad Janoo v. Taherali (1981 SCM R 93).
(ii) Shezan Ltd. v. Abdul Ghaffar (1992 SCM R 2400). Pragma Leather Industries (PLD 1996 SC 724).
' In another judgment of this Court in the case of Amir Ali v. Burma Oil Mills Ltd. (1990 SCM R 1327), this Court observed as follows:-'
"There is no documentary proof that the parties had agreed to alter the mode of payment of rent so that the tenants were not required to make payment from month to month. The reliance in this behalf is being placed on the conduct of the landlords. The text of the letter which was sent by the landlords, as reproduced above, supports their argument and excludes, any agreement that the rent was payable only on demand with intervals. Mere fact that the landlord condoned the payment of rent every month, is no ground for holding that he had agreed to modify the contract of tenancy. The words 'Arrears of rent' in the letter are very significant which obviously negate the suggestion that the rent became due on expiry of every three months. Besides the practice pleaded was also not consistent in so far as on one occasion arrears" for four months were demanded. The evidence relied upon, therefore, does not establish any modification of the contract of tenancy. In Abdul Rashid v. Saleh Muhammad 1980 SCM R 506 it was laid down that parties cannot contract themselves out of the provisions of the law on the subject, namely, West Pakistan Urban Rent Restriction Ordinance. In regard to such practice pleaded by the tenants this Court categorically rejected the same, observing that 'neither party can plead a practice which is contrary to the said law'. The learned Judges pointed out that mere fact that a landlord accepted a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whitling down the requirement of the law that the rent has to be paid by the tenant by fifteenth of every month. This view was reiterated in Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 SCM R 601, where it was laid down that if the landlord agrees to accept rent periodically the delay in payment could be condoned but such a fresh agreement can, however, not be inferred lightly from the mere fact that the landlord had received rent from his tenant at irregular intervals. Similar view was expressed in Messrs Tar Muhammad Janoo & Co. v. Taherali, and others 1981 SCM R 93 and Malka Begum v. Mehr Ali Hashmi 1984 SCM R 755."
5. The argument, that the High Court erred in interfering with the exercise of discretion by the Rent Controller, who had found that there was no wilful default on the part of the tenants, has also no merit. The High Court, on a question of fact has found that there was default in the payment of rent which finding is supported by the evidence on record. Therefore, no question arises for interfering in exercise of discretion. The Rent Controller had come to an incorrect finding that there was no default on the part of the appellants which finding has been corrected by the High Court.
6. No case is made for interference in the judgment of the High Court and accordingly Civil Appeal No,1925 of 1996 is dismissed but with no order as to costs. However, the appellants are allowed time till 31-10-1999 to vacate the premises and hand over vacant possession of the same to the respondents subject to regular deposit of rent with the Rent Controller. The rent already deposited and which may be deposited in future with the Rent Controller by the appellants can be withdrawn by the respondents. In case the appellants do not vacate the premises and hand over vacant possession of the premises in question by the aforesaid date, in an execution application filed by the respondents, writ of possession will be issued against the appellants without notice to them.