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Second appeal No. 232 of 1974, decided on 7th November, 1979.

----- S. 13(2)(i)-Ejectment-Default in payment of rent-Except for a- rent receipt for four months tenant producing no other evidence to show that landlord agreed expressly or impliedly to collect rent in lump sum at fixed intervals-Rent Restriction Ordinance extending protection to tenants against eviction subject to condition that tenant pays rent-Modification of statutory obligation can be established only by proof of agreement with particulars pleaded in written statement by tenant-Tenant/respon dent not pleading in written statement to show any arrangement having developed through course of conduct of part of landlord/ appellant in modification of statutory obligation of tenant respondent:--No sufficient evidence on record to hold parties by their conduct having mutually modified obligation of tenant to pay rent regularly as provided by law-Court below, held, not justified to hold that in not tendering rent for 5 months respondent/tenant did not commit default in payment of rent.

Umar Din v. Ghulam Jilani Shah P L D 1976 Lah. 567 ref.

Muhammad Alam v. Noor Muhammad 1973 S C M R. 606 and Muhammad Aleemullah v. Ziaul Islam P L D 1973 Kar. 56 rel.

--- S. 15-Appellant landlord recovering rent in accumulated form periodically-Must necessarily be creating an impression in mind of respondent/tenant that rent was not to be paid every month Non-payment for three months only entitling eviction of tenant--Default, held, rightly held to be not delibetate default and discre tion therefore exercised by appellate Court on sound principles.

Nooruddin Ramzan for Appellant.

Muhammad Saleem Qureshi for Respondent.

Date of hearing : 22nd October, 1979.

The respondent is the tenant of the appellant in respect of tenement No. 2/3, in a building known as "Mustajab Mansion" situated in New Chali, Frere Road, Karachi, at a monthly rent of Rs. 41 and Rs. 10 for water charges per mensum. According to the evidence on record the appellant had filed ejectment application against the respondent in the year 1964 on the ground of default in the payment of rent which was allowed and by order dated 25th January, 1965 the Rent Controller had ordered the ejectment of the respondent. But on the same day the parties had arrived at a compromise whereby it was, inter alla, agreed that the respondent shall pay rent at Rs. 50 plus Rs. 10 towards water charges per mensum regularly and the appellant agreed not to execute the order of ejectment.

2. On 15th April, 1967 the appellant filed another application for ejectment against the respondent out of which the present appeal has arisen on the ground that the respondent bad committed default in the payment of rent with effect from 1st November, 1966 for a period of five months and that he had made changes in the building impairing the utility thereof but this ground is not being pressed. The respondent denied that he had committed default. His plea was that the appellant never sent rent bills to him and other tenants in the building every month but he collected the rent whenever it suited him. In support of his plea the respondent contended that the appellant collected rent from him for 4 months from July, to October, 1968 on 27th October, 1966 and thereafter did not turn up or sent any bill for payment of rent for the succeeding 5 months. It was, however, submitted by the respondent that on 5th April, 1967 the respondent received a notice from the appellant requiring him to vacate the premises on the ground that the building was in ruinous and dilapidated condition but no allegation was made regard ing any default committed by him. According to the respondent after receiving this notice he repeatedly reminded the appellant and his rent collector to send the bill to enable him to pay the rent but they avoided. to do so on false promises. On these pleas the respondent contended that the ejectment proceedings were filed mala fide.

3. On considering evidence adduced by the parties the learned Rent Controller reached a finding against the respondent and by his order dated 31st May, 1973 allowed the application directing the respondent to hand over possession of the premises of the appellant. Being aggrieved by the aforesaid order the respondent went up in appeal which was disposed of by the learned Additional District Judge, Karachi, who upon reapprai sal of the evidence on record reached the conclusion that the practice of collecting rent by the landlord in lump sum after lapse of 3/4 months had been established beyond any doubt. He further held the view that in any case the respondent was entitled to the exercise of discretion in his favour. In this view of the matter by his judgment dated 23rd August, 1974 he reversed the findings of the Rent Controller and allowed the appeal of the respondent. The present second appeal is directed against the aforesaid judgment of the Additional District Judge, Karachi.

4. It was contended on behalf of the appellant that the learned Addl. District Judge, had reached the finding in favour of the respondent by misreading the evidence on record. In this behalf it was urged that the evidence of the past conduct of the respondent was not taken into consideration, in so far as the present proceedings were filed after the appellant had given opportunity to the respondent to pay rent regularly after the first ejectment order but notwithstanding that, he bad committed default by not paying the rent for 5 months.

5. The first question for consideration is whether the respondent committed default in the payment of rent. It is not disputed that the res pondent did not pay rent for the period in question but the case of the respondent in his evidence is that it was a practice with the appellant to collect rent from his tenants including the respondent with the interval of 3 or 4 months at his own convenience. The only instance quoted in this behalf for which evidence was produced was the rent receipt for 4 months in October, 1966. No other evidence was produced to show that the res pondent had agreed expressly or impliedly to collect the rent in lump sum at fixed intervals. However, as pointed out by the learned Additional Dis trict Judge, the appellant in his deposition had admitted that he did not send rent bill to the tenants every month and that it is a fact that the rent used to be recovered from the tenants in accumulated form some times for one month some times for 3 months but never for more than 3 months at a time. Upon this admission the learned Additional District Judge, reached the finding that it has been established that the parties had agreed to this arrangement and therefore, the respondent had not committed default. Learned counsel for the appellant urged that this evidence is not sufficient to displace the obligation of the tenant in terms of sec tion 13 of the Urban Rent Restriction Ordinance, 1959 to tender rent within the prescribed period therein. Reliance was placed on Umar Din v. Ghulam Jillani Shah (P L D 1976 Lah. 567). In that case a similar plea of the tenant was rejected on the ground that mere receipt by landlord of rent for several months on one occasion is no proof of the tenant being assured by the landlord of receiving rent of several months together on a basis other than monthly. In Muhammad Alam v. Noor Muhammad (1973 S C M R 606) there was an agreement of tenancy according to which the rent was to be paid by the 5th day of every month but the tenant had committed default by not paying rent according to the terms of the agreement. He raised the similar plea in his defence to the effect that he used to pay rent after 2 or 3 months and thereby a practice had grown up for payment of rent periodically. But in support of his plea he could produce the evidence of only a single receipt for the payment of rent for 3 months at one time. Their Lordships maintained the order of eviction but in the course of the judgment made the following observations :-

No practice to the contrary could whittle down the requirement of law. The Rent Controller, could however, condone the delay if he was satisfied that by agreeing to accept rent periodi cally the landlord had made the tenant believe that rent was to be paid every month. In that case it could be said there was no deliberate default and the Court might exercise discretion against directing eviction of the tenant although in law, default is proved on his part."

6. The Rent Restriction Ordinance, 1959 has extended protection to the tenants against eviction subject however, to the condition that the tenant pays rent regularly. Thus according to section 13, the tenant is required to pay or tender rent due by him within 15 days after the expiry of time fixed in the agreement of tenancy with his landlord and in absence of any such agreement within 60 days from the period for which the rent is payable. As held in Muhammad Aleemullah v. Ziaul Islam (P L D 1973 Kar. 56) the modification of the statutory obligation can only be established by proof of the agreement with particulars placed in the written statement by the tenant. In the present case no such particulars were pleaded in the written statement showing any arrangement having developed through the course of conduct on the part of the appellant in modification of the statutory obligation of the respondent. All that has been pleaded is that rent bills were issued to the tenants including the respondent irregularly and rent was collected "as and when it suits him (i.e. applicant land lord)." In view of the law discussed above and the facts o f this case there is no sufficient evidence on record to hold that the parties by their conduct had mutually modified the obligation of the tenant to pay rent regularly as provided by law. The Courts below were not, therefore, justified to hold that in not tendering rent for 5 months the respondent had not committed default in the payment or rent.

7. It was however, urged by Mr. Muhammad Saleem Qureshi, learned counsel appearing for the respondent that notwithstanding the default by the respondent, the learned appellate Court below was justi fied in exercising discretion in favour of the respondent in view of the fact that the appellant himself admitted that rent bills were not issued to the respondent every month and that rent as a matter of practice was recovered from the tenants in accumulated form. In view of the dictum laid down by their lordships in the case of Muhammad Alam, cited above, it was therefore, open to the Court to consider this circumstance and relieve the respondent of the consequence of his default. Upon an overall consideration of evidence in the light of the aforesaid admission. made by the appellant, it appears to me that the appellant has been, recovering rent in the accumulated form periodically which must; nec4 ssarily have created an impression in the mind of the respondent that rent was not to be paid every month. As held by the learned Addi tional District Judge, in this case the question is of non-payment of rent for 3 months only which could have entailed the eviction of the tenant. The arrears of the last 2 months could not form basis for ejectment as the 60 days period of grace had not expired relating to these 2 months. The default for the 3 month was rightly held not to be deliberate default and the discretion was, therefore, exercised on sound principles as enunciated. No interference is accordingly called for.

For the foregoing reasons there is no merit in this appeal which is dismissed with no order as to costs.

M. A. K. Appeal dismissed.

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