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(On appeal from the judgment and order of the High Court of Sind and Baluchistan, Karachi, dated the 25th February 1971, in Second Appeal No. 338 of 1967).

(a) West Pakistan Urban Rent Restriction Ordinance (v of 1959),

S. 13‑Written lease deed stipulating that rent of each month would be paid in next succeeding month‑Default in payment of rent for ten months‑Tenant contending that landlord was in habit of collecting rent periodically‑Reliance placed on receipts of rent given by landlord for several months together‑Held: tenant in presence of written agreement could not lead evidence showing variation in terms and conditions of lease‑Evidence Act (1 of 1872), Ss. 91 & 92.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959),

S. 13‑Discretion of Controller to eject or refuse to eject tenant‑To be exercised judicially and not arbitrarily.

A. Aziz Dastgir, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 24th August 1971.

MUHAMMAD YAQUB ALI, J.‑

The petitioner admittedly com mitted default in payment of rent for ten months to the respondent landlord. In the agreement of lease it was specifically provided that rent for each month will be paid in the next succeeding month. Under section 13 of the Rent Restriction Ordinance the petitioner was liable to be evicted in case of default in payment of rent for a single month. The Rent Controller and the District Judge, however, condoned the delay in the view that the respon dent was responsible for giving a false impression to the petitioner that rent will be collected periodically. Reliance was placed on receipt of rent by the respondent for several months together.

In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent. In this view the High Court has properly set aside the orders of the lower Courts and allowed the application for eviction.

It is urged that under section 13 the Rent Controller had the discretion to condone delay in payment of rent. That is true, but discretion is to be exercised judicially and not in an arbitrary manner. Default of ten months could not be condoned on any hypothesis. No exception can, therefore, be taken to the judgment and order of the High Court.

The petition for leave to appeal is dismissed.

Leave refused.

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