IJAZ-UL-HASSAN, J.---Appellant Muhammad Nawaz has filed this First Rent Appeal No.17 of 2003 against the order of Additional Controller of Rents, Peshawar Cantonment dated 21-10-2002 whereby the Rent Application No.22 of 2002 moved by Shahzada Arooj Awan, respondent for the eviction of the appellant was accepted and he was directed to vacate the suit premises and, hand over the possession thereof to the respondent within 90 days of the order.
2. Short facts leading to the filing of this appeal are that Shahzada Arooj Awan filed an application under section 17 of the Cantonments Rent Restriction Act (XI of 1963) before Additional Controller of Rents, Peshawar Cantonment for ejectment of the appellant from Rooms Nos.10, 11, 12, 13, 15, 16, 18 situated on 2nd Floor and Room No.29 on 3rd Floor of the Building, known as 'Doctors Plaza' 12- Saddar Road, Peshawar Cantt, The ejectment was sought on the sole ground of default in payment of rent from January, 2002 to May, 2002 amounting to Rs.54,000. The appellant had taken on rent the suit premises on payment of Rs.9,000 per month as rent vide lease deed dated 1-1-1998. The tenancy having expired on 31-12-2000, an ejectment petition was filed before Additional Controller of Rents, Peshawar Cantonment which was subsequently withdrawn in view of the compromise dated 6-11-2001. After withdrawal of the first ejectment petition, another rent deed was executed between the parties on 1-8-2001 whereby the appellant had undertaken to deposit the monthly rent in the bank, on or before 10th of each calendar month in advance and in case of default, appellant was to suffer the consequences of ejectment. The appellant once again committed default and failed to deposit the monthly rent in bank which necessitated the filing of an ejectment petition.
3. In the written statement default in the payment of rent was denied and it was claimed that a sum of Rs.54,000 has already been deposited in the landlord's account, covering rent up to May, 2002. The following issues were formulated for determination:-- (1)Whether the applicant has got a cause of action?
(2)Whether the respondent is a rent defaulter?
(3)Relief.
4. Upon consideration of the material on record, learned Additional Controller of Rents Peshawar Cantonment, seized of the matter proceeded to hold "that the tenant has failed to deposit or tender the monthly rent in accordance with the terms and conditions of the lease agreement and has thus committed a rent default for continuous period of five months". Having held so, he accepted the application and passed eviction order, in favour of the respondent, as noted above.
5. The admitted facts emerging from the entire controversy are that per clause No.1 of fresh rent deed dated 1-8-2001, appellant was supposed to deposit the monthly rent amounting to Rs.10,800 in the Bank of Khyber Main Branch, Mall Road, Peshawar Cantt. Under Account No.CD---1182-3 in the name of respondent on or before 10th of each calendar month in advance. The appellant once again committed default and deposited the rent during pendency of instant appeal.
6. Mr. Muhammad Jamil Khan, Advocate, appearing on behalf of the appellant maintained that no default in payment of rent has been committed because the respondent used to collect rent periodically. The learned counsel added that this practice of collecting rent periodically was in vogue from the very beginning which was acceptable to the respondent. Additionally, the learned counsel contended that statements of P.W.1, P.W.2 and P.W.3 are contradictory and inconsistent on material points and as such the learned Rent Controller had no justifiable reason to believe the evidence of the respondent and accept his application for ejectment of the appellant. Reliance was placed on Messrs Pragma Leather Industries v. Mrs. Sadia Salad PLD 1996 Supreme Court 724 and Ismail v. Ahmed Bux & Sons 1998 MLD Karachi 940.
7. Mr. Owais Ahmad Qadri, Advocate, learned counsel for respondent whole--heartedly supported the impugned order and contended that the appellant has not paid or tendered the rent to respondent within 15 days of the expiry of time fixed in the agreement of tenancy for the payment of rent and has thus committed a wilful default resulting into his ejectment from the demised premises within the meanings of sub--section (2)(i) of section 17 of the Cantonments Rent Restriction Act, 1963. The learned counsel also submitted that sufficient material is available on the file to prove default in payment of rent and no material piece of evidence has been either misread or overlooked by the-learned trial Court.
8. In order to establish a practice it is necessary that the tenant should prove that the mode of payment alleged to have become a practice was uniform, consistent, continuous and accepted by the landlord without objection or change for a long period. If the evidence produced on record does not satisfy this condition then unless otherwise proved it can be presumed that lump sum payment made from time to time only demonstrates that such payments were made irregularly. In the instant case, the appellant has not been able to show that the respondent used to collect rent periodically and this practice was in vogue right from the very beginning. The burden to prove this factum was entirely on the appellant but he has not succeeded in this regard. In Messrs Tar Muhammad Janoo & Co. v. Taherali and others (Civil Petition No.K/16 of 1979), the august Supreme Court of Pakistan observed:-- "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from payment the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way show that he does not accept it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent."
9. As observed earlier, the appellant has deposited the rent for the months of January, 2002 to May, 2002 during the pendency of the present appeal. The appellant has been rightly adjudged rent defaulter. It needs no reiteration that once a tenant is proved to be a defaulter, even late payment of rent would not take him out of the category of defaulters as held in Mrs. Farida Manzoor v. Wing Commander (Retd.) Makhdoom Mohiuddin Khan 1998 CLC Karachi 226, Bin Yameen and 3 others v.
Chaudhry Hakim and another 1996 SCMR 336, Messrs F.K. Irani & Co. v. Begum Feroz 1996 SCMR 1178 and Noman Ahmed v. Mst. Ghazala Iqbal 1996 MLD 1717.
10. Pursuant to above, finding no substance in this appeal I dismiss the same with no order as to costs and maintain the impugned order of ejectment of the appellant. As the premises in question are being used for imparting computer education system, I allow four months time to the appellant to vacate the same and hand over vacant possession thereof to the respondent, subject to its continuing to deposit rent in the account of the respondent.