' KAMAL MANSUR ALAM, J.---The petitioner is seeking leave to appeal from judgment dated 5-3- 1999 of a learned Single judge of the High Court of Sindh in F.R.A. No,392 of 1991 filed by the petitioner against the order dated 13-7-1991 of the IVth Senior Civil Judge and Rent Controller, Karachi East, in Rent Case No,410 of 1989 allowing respondent's application for the eviction of the petitioner.
2. The respondent is the owner-landlady of the building situated on Plots Nos.565 and 566, Khushhal Road, P.E.C.H.S., Karachi and had rented out the upper floor thereof to the petitioner at monthly rent of Rs,450. The respondent filed an eviction application under section 15 of the Sindh Rented Premises Ordinance, 1979, being Rent Case No,410 of 1989, for the eviction of the petitioner from the said premises on the ground of default in the payment of rent. It was alleged in the application that the petitioner was a persistent defaulter and on several occasions failed to tender rent on due dates. In para 4 of her eviction application the respondent alleged that:-- "(4) That the opponent has deliberately committed several defaults in payment of rent according to the following payments, which the opponent has made to the applicant, through her attorney:
(a) Rent for the month of September, 1987 was tendered on 3-5-1988 vide receipt No,709.
(b) 'A part payment of the rent for the month of February, 1988 (i,e, Rs,350) was tendered on 3-5- 1988 vide receipt No,710.
(c) Again balance of Rs,100 was tendered vide receipt No,711.
(d) Rent for the month of March, 1988 to October, 1988 was tendered on 14-3-1989 vide receipt No,712.
(e) Part payment of the rent for the month of November, 1988 (Rs,300) i,e, Rs,300 was made vide receipt No, 713 dated 14-3-1989."
' It was further alleged in the application that rent for the month of November, 1988 was only partly paid and no rent was paid from December, 1988 till the filing of the application on 19-4-1989. The petitioner mainly took the plea that based on established practice, resulting from mutual understanding and convenience, accumulated rent for several months used to be paid at a time.
After considering the evidence on record and the pleas raised on behalf of the parties, the Rent Controller found that the petitioner had committed default in payment of rent and accordingly allowed respondent's application. Petitioner's appeal against the order of the Rent Controller was dismissed by the learned Judge in Chambers by the impugned judgment.
3. Mr. Naraindas C. Motiani, learned Advocate-on-Record appearing for the petitioner, submits that by reason of the mutual understanding and the established practice of payment of accumulated rent of several months at a time by the petitioner and acceptance thereof by the respondent, the provision of the Sindh Rented Premises Ordinance, 1979, with regard to the payment of monthly rent, was not applicable in this case and, therefore, delay in payment of rent in respect of some months could not be considered as default. In this regard he made reference to para.3 of the impugned judgment and the various receipts on record showing that on several occasions accumulated rents for several months were paid at a time by the petitioner and accepted by the respondent. He placed reliance on the cases of Taher Ali and 2 others v. Messrs Sh. Miran Bux- Karam Bux and another (1989 SCM R 403), Muhammad Rafique Chaudhry v. Abdul Hamid and 3 others 1988 SCM R 1385 and Abdul Aziz v. Abdul Ghani 1986 SCM R 1857.
4. In the first of the cases referred to above this Court refused to interfere with the finding of facts recorded by the two Courts below that it was the practice of the petitioner to collect the amount of rent in lump sum on yearly basis. But there, it appears, that the tenancy agreement provided that, "No rent shall be paid without the presentation of a bill and the signature of landlord or his agent shall always be obtained on payment", and the learned Judge of the High Court found that, "nothing has come on the record that appellant presented a bill and respondent has refused to make payment," and that "It is clear that all along with the rent was being collected on yearly basis"
5. In the case of Muhammad Rafique Choudhry this Court declined leave to appeal against the judgment of a learned Judge of the High Court setting aside the ejectment granted by the Rent Controller and upheld by the Additional District Judge in appeal, on the ground that: "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 the order of the learned Single Judge in the High Court was proper."
6. In the last case also this Court refused leave. To appeal against the order of a learned Judge of the High Court reversing the finding of the Rent Controller granting ejectment. While refusing leave to appeal, it was observed by this Court that: "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. The 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 jurisdiction to 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 responded 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."
7. However, a different view was taken in the case of Mrs. Alima Ahmad v. Amir Ali (PLD 1984 SC 32), decided by a Bench of five Honourable Judges of this Court. There the plea of alleged practice of the landlady's attorney of accepting accumulated rents of several months at a time was rejected as a defence for the delays and defaults in the payment of rents in violation of the statutory provisions. The relevant observation may be reproduced as follows:- "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 'persistent' or 'wilful' default 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 protects the tenants against eviction and enhancement of rent, thereby curtailing the pleanary 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."
8. Similarly, in the later case of M/s. Pragma Leather Industries v. Mrs. Sadia Sajjad (PLD 1996 SC 724) the defence taken by the tenant for the default in the payment of monthly rent was that the landlady for her own convenience used to collect the rent for several months at a time. The Honourable Judges, after examining all the cases referred to hereinabove and several others on the point, upheld the judgment of the High Court based on the decision of this Court in the case of Mrs. Alima Ahmed. For not following the cases of Tahir Ali, Muhammad Rafique and Abdul Aziz, pertinent observations appear in paragraphs 8 and 10 of the judgment reproduced hereunder:-- "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 Khan and 3 others (supra) and Tahir All 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 Full Bunch 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 (supra), the default of one month was proved and, therefore, the Courts below keeping in view the conduct of the landlords declined to grant ejecment 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).
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 of 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."
9. In the present case, "it appears from the judgment of the High Court as also that of the Rent Controller that the respondent, had on several occasions, at the time the petitioner paid accumulated rent, asked him to pay monthly rent regularly. For this reference has been made to the following note of the attorney of the landlady on the receipt Exh. F.14: "You have been a persistent defaulter in the payment of rent. You are requested to pay rent regularly every month."
' Thus, it would appear that here the concurrent finding is that the respondent had not at all acquiesced in the period payment of accumulated rents for several months. Accordingly, the contention of the learned counsel that there was a prevailing practice with mutual consent that accumulated rent for several months was to be paid at a time is clearly not borne out from the record. Section 10(1) of the Sindh Rented Premises Ordinance, 1979 specifically provides that: "The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due."
Such being the requirement of law, the tenant is bound to follow the same. No agreement for the deviation from or non-observance of the mode prescribed by the law for ensuring prompt payment of monthly rent, can be presumed merely by reason of occasional waivers of default by the landlord or acceptance of the accumulated rent by him. Any deviation, to be effective, should be by proper mutual agreement, voluntarily and consequently entered into. The above provision providing for regular payment of rent to the landlord is in consideration of the restrictions placed by the Ordinance on the rights of the landlord to deal with his property and, therefore, should be strictly construed in favour of the landlord. In the case of Shezan Limited v. Abdul Ghaffar and others (1992 SCM R 2400) it has been observed that:-- "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 that 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 landlords' above 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."
10. For the reasons discussed above, no exception can be taken to the judgment of the High Court.
This petition is accordingly dismissed and leave is refused. However, the petitioner is allowed four months' time to hand over vacant possession of the said premises the respondent subject to his continuing to pay to the respondent monthly rent regularly and in the event of any delay or default in the payment of rent or the handing over of the possession of the premises to the respondent as directed above, the writ of eviction would issue without notice and with police aid, if necessary .