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Civil Petition for Special Leave to Appeal No. K‑153 of 1979, decided on 18th August 1979.

(On appeal from the judgment and order of the Sind High Court dated 30‑5‑1979 in Second Appeal No. 160 of 1975).

--S. 13(2) (i)‑Default in payment of rent‑Contention: tenant paying rent at long intervals at request of landlord's husband to suit his convenience‑Held : Out of nine payments, tenant twice paying rent of only one month and twice paying rent of only two months‑Tenant's claim regarding landlord having himself wished not to receive rent at end of every month or two prima facie belied‑Tenant's admission of paying rent at long intervals further proved his having been in arrears at all times‑Tenant on several occasions found to have written apologetic letters to landlord asking for time to clear arrears of rent Finding of first appellate Court holding default having occurred only once based on misreading of law and evidence‑Tenant, held, in default of payment of rent and liable to he ejected.

Sajjad Ali Khan and 2 others v. Peer Bux G. Mahar P L D 1972 Kar. 220 disapproved.

Muhammad Ali Mullah v. Ziaul Islam P L D 1973 Kar. 56 approved.

Muhammad Alam v. Noor Muhammad 1973 S C M R 606 ref.

--S. 13(2) (i)‑Default in payment of rent‑Condonation of delay in payment of rent‑Court could condone delay in case of landlord having agreed to accept rent periodically‑Acceptance of rent periodically can however be result of a fresh agreement between landlord and tenant - Burden of such agreement nevertheless not to be inferred lightly and not generally inferable ‑from mere facto landlord having received rent from tenant at irregular intervals‑‑Tenant having failed to prove landlord having agreed to alter terms of tenancy and to receive rent at long intervals, tenant, held, defaulted in payment of rent and liable to ejectment.

Muhammad Shafi v. Zahir Hussain and another P L D 1978 Lah. 862 ref.

Iqbal Qazi, Advocate and Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.

Ahmedullah Farooq, Advocate‑on‑Record for Respondent.

Date of hearing : 18th August 1979.

‑This petition for leave has been filed against a judgment of the Sind High Court by which Nusrat, J. reversed the orders of the lower Court and allowed the eviction application filed by the respondent against the petitioner.

The petitioner is the tenant of a property owned by the respondent in Nazimabad Karachi. The monthly rent is only Rs. 190 but as the petitioner was a habitual defaulter in the payment of rent, the respondent filed an eviction application against him in 1972 on the ground of non payment of rent. The petitioner resisted his eviction application on the false plea that the respondent was trying to enhance the monthly rent illegally, but as this plea was not even reffered to by Mr. Iqbal Qazi in his arguments, we would only refer to the plea on which this petition was pressed. With regard to this plea, the petitioner stated in para. 3 of his written statement:

"That the respondent has never refused payment. On the contrary, the applicant's husband who is the attorney of the applicant and who receives the rent, requested that he shall collect the rent according to his convenience so that he can receive at a time a good amount of lump sum which may be useful to him. The respondent being his family doctor agreed and as a matter of routine rent was collected after three months or 6 months or more or less as suited the said attorney and he passed receipts accordingly."

It appears to be common ground between the parties that the respon dent's husband used to manage her property, therefore, he appeared on her behalf before the Rent Controller, and although he categorically stated that the petitioner never tendered rent in time, he was not cross‑examined on the allegation that he had requested the petitioner to pay the rent at intervals in lump sums "which may be useful to him". The witness of course admitted that he had received rent in lump sums at long intervals from the petitioner, but he stated that this was despite his protests. Next, as to the petitioner's own evidence, he merely said "the mode of payment of rent was that whenever the appellant asked for the payment of rent I paid him. Sometimes I paid the rent for six months together." Presumably, because he relied on his repeated default in the payment of rent about which the respondent had shown great indulgence, the petitioner did not even assert in his evidence that it was the respondent's husband who had told him to pay rent at long intervals, because he (the husband) did not like to receive small payments.

Additionally, in order to prove that be used to pay rent in lump sum at long and irregular intervals, the petitioner produced nine rent receipts from which it appears that the petitioner had twice made a lump sum payment of seven months' rent. He had also twice made payments in lump sums of three months' rent, and of two months' rent whilst on three other occasions, he had paid rent of one month only. Although copies of these rent receipts have not been supplied to us, the respondent has filed a statement of accounts which even, according to Mr. Iqbal Qazi, was in accordance with the nine receipts produced by the petitioner in his evidence. Now, although the petitioner had categorically asserted in his written statement that the respondent's husband did not like to receive payments in small amounts, and although the payment of rent of a month or two would be the payment of a small amount, it is clear from this statement of accounts that out of the nine occasions on which the petitioner had paid rent, he had twice paid the rent of only one month, and he had twice paid the rent of only two months, therefore, this statement, prima facie, belies the petitioner's claim that the respondent's husband did not want to receive rent at the end of every month or two. Secondly, as the petitioner denied having been in arrears of rent at all, and as he was emphatic that he was paying rent at long intervals at the request of the respondent's husband, it would follow that there would be no arrears of rent due from him whenever he made his payments of rent in lump sums. But, this statement proves that he was always in arrears of rent, and indeed there was never a time when he was not in arrears of rent. Thus, for example, in January 1971, he had paid the rent of seven months, and as this was a substantial amount, Mr. Iqbal Qazi submitted that this payment supported the petitioner's claim. It might have, if the petitioner had, by this lump sum payment, cleared the arrears due from him. But the seven months' rent paid by him in January 1971 was the rent for the period from January 1970 to August 1970. Therefore, in January 1971, he was in arrears in the payment of rent for five months. The petitioner's next payment was in June 1971, but as he had cleared the arrears of rent up-to November 1970 only, he was again in default in the payment of rent for a period of six months. The next payment was on 31st July 1971, and it was for the stately sum of Rs. 190 being the rent for the month of December 1970, only. Therefore, once again on 31st July 1971, he was in default in the payment or rent for a period of six months. As to the other six payments, as rightly submitted by Mr. Matloob Hassan, who appeared on behalf of the caveator, there was never a time when the petitioner had cleared the arrears of rent due from him.

In these circumstances, we can only express our great regret that the lower Courts accepted the plea of the petitioner that he was paying rent at long intervals in order to oblige the respondent's husband. However, it would appear that the respondent's case had gone by default before the Rent Controller, and even if the respondent was represented by counsel, it is apparent that her counsel did not give any assistance whatever to the unfortunate Rent Controller who dismissed the respondent's eviction application, because a learned Judge of the Sind Baluchistan High Court held in Sajjad Ali Khan and 2 others v. Peer Bux G. Mahar P L D 1972 Kar. 220, that when the appellant landlord "used to accept rent in lump sum periodically" this was a good ground for not evicting the tenant respondent who had been irregular in the payment of rent. Unfortunately, the learned Judge did not give any reasons for the view taken by him, but as to other judgment cited, the Rent Controller, in the instant case, had no option except to dismiss the respondent's eviction application. But the question is of the propriety and correctness of the view taken in Sajjad Ali Khan's case. With respect, there are landlords and landlords, and whilst a landlord may receive rent "in lump sum periodically," because he does not wish to be troubled by the receipt of rent at the end of every month, we venture to think that such a landlord would be a very unusual and abnormal person. On the other hand, as observed in Muhammad Ali Mullah v. Ziaul Islam P L D 1973 Kar. 56 at p. 60: "A landlord's failure to collect rent regularly may be due to may reasons; Pre‑occuption with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc." We agree with these observations, and we regret our inability to agree with the judgment in Sajjad Ali Khan's case.

This means that the Rent Controller dismissed the respondent's eviction application on an erroneous view of the law, and, we are, therefore, not impressed by Mr. Iqbal Qazi's submission that the High Court was not justified in a second appeal in interfering with the concurrent findings of the Courts below.

Learned counsel then submitted that Nusrat, J., was not justified in interfering with the appreciation of evidence by the first appellate Court, because the learned Additional District Judge had dismissed the respondent's appeal after a careful examination of the evidence. But, Nusrat, J., had reversed the concurrent findings of the Courts below, because he was of the view that this concurrent finding was based on an erroneous view of the law and on a perverse appreciation of the evidence. Therefore, we would explain here that although the respondent had failed to give any assistance to the Rent Controller, her learned counsel had drawn the attention of the first appellate Court to the law declared by the Sind Baluchistan High Court in Alimullah's case and by this Court in Muhammad Alam v. Noor Muhammad (2). The Additional District Judge distinguished Alimullah's case with the observation that it would "suffice to observe that in the first authority the plea of alleged practice was neither pleaded nor proved and this argument was advanced for the first time (at) the appellate stage which was repelled." Then, as to. The declaration of law by this Court in Muhammad Alam's case, the Additional District Judge observed "in the second case during 3 1/2 years period of tenancy, only a single instance of late payment of rent was brought in evidence, to prove the practice."

Now, strangely enough the Additional District Judge purported to follow Muhammad Alam's case, although as pointed out by him, the default by the tenant in the payment of rent had occurred only once during a period of 3J years, whilst in the instant case, there was never a time when the petitioner was not in default in the payment of rent. Similarly, his attempt to distinguish Alimullah's case, which was binding on him, was based on a misreading of that judgment, because it was expressly pointed out in paragraph 4 of the judgment in Alimullah's case that "the respondent's plea in his written statement was that the appellant wanted to collect rent in large amounts." As the petitioner before us was the respondent in the first appellate Court, the facts in the instant case were on all fours with those in Alimullah's case, therefore, the view of the Additional District Judge was based on a misreading of the law. Similarly, as Mr. 1qbal Qazi repeatedly submitted that we could not interfere in a concurrent finding of fact, we have to observe that the concurrent finding on the question of the petitioner's default was, in the first place, a mixed question of law and fact, and secondly, the finding of the First Appellate Court was based on total misreading of evidence.

In this connection, we may point out that the Additional District Judge referred to the rent receipts and observed that they established "the practice between the parties to receive the rent after long intervals of three to eight months." We have to state with regret that this observation is not even factually correct, because, as we pointed out, on two of the', nine occasions, when the petitioner had paid rent, he had paid rent for one month only. Secondly, the receipts merely proved that the petitioner used to pay rent at irregular intervals, but because he paid rent at irregular intervals, the Additional District Judge held that rent was paid at irregular intervals at the request of the respondent's husband. The inference thus drawn by the Additional District Judge is not correct, because it was for the petitioner to prove that he had paid rent at irregular intervals at the request of the respondent's husband. And, the mere fact that he had been paying rent at irregular intervals was not by itself sufficient to prove his plea that the respondent's husband did not wish to receive rent from him at the end of every month.

Mr. Iqbal Qazi then submitted that the finding of the Additional District Judge was supported by the correspondence exchanged between the parties, and in this connection, learned counsel placed great reliance on a letter written by the respondent's husband on 18‑1‑1972 to the petitioner. This letter reads: ‑

"Please pay me the arrears of rent already due. I have been waiting your promises to fulfil for the last two months.

I hope you will not disappoint me now.

Thanks. Yours sincerely,

18‑1‑1972." (Sd.) Illegible.

This letter reminds the petitioner of his promises to pay "for the last two months," and, if there had been any truth in the petitioner's plea that he had withheld the payment of rent at the request of the respondent's husband in order to pay it in large lump sums, he would immediately have replied accordingly to the respondent's husband; but even Mr. Iqbal Qaz did not contend that the petitioner had repudiated the stand of the respondent's husband about the petitioner's default in the payment of rent.

Learned Counsel then referred us to the petitioner's letter dated 19‑5‑1972 to the respondent's husband. This letter reads: ‑

"Dear Mirza Sahib,

I quite understand your patience. On Monday evening I will definitely send you the amount. I will be obliged, as I am always, if you would wait till a bit final date.

Thanks,

Yours

19‑5‑1972." (Sd.) Illegible

Learned counsel thought that this letter supported the petitioner's plea, and that was also the view of the fist appellate Court. But the petitioner's plea was that he paid rent at long intervals at the request of the respon dent's husband. Therefore, as it is clear that the letter is in answer to a request for payment by the respondent's husband, if there had been any truth in the plea advanced by him in his written statement, the petitioner would have informed the respondent's husband that he had not paid the rent earlier, because of his request. Instead he wrote an apologetic letter asking for time. We are not able to understand how any Court could have taken the view that this letter corroborated the petitioner's plea.

We were also referred to two other undated letters. Both these letters are written in a supplicating tone and begged the respondent's husband for time to make the payment. Therefore, far from supporting the petitioner's plea, they falsify it. In these circumstances, the view of Nusrat, J., that the, First Appellate Court had misread the evidence is correct, and, in our opinion, no other view is possible.

Finally, Mr. Iqbal Qazi relied on an observation of Muhammad Yaquob Ali, J. (as he then was) in Muhammad Alam's case, which reads: ‑

"The Rent Controller could, however, condone, the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not 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."

As this observation was followed in Muhammad Shafi v. Zahir Hussain and another P L D 1,978 Lah. 862, we would clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J., (as he then was), gave a warning in Muhammad Alam's cabe that a practice by a tenant to pay rent at irregular intervals made him liable to eviction, because such a practice was contrary to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Then, after giving this warning, his Lordship went on to make an observation that the Court could condone delay in the payment of rent if the landlord had agreed "to aceept rent periodically". Now, if a landlord agrees "to accept rent periodically, "this can only be the result of a fresh agreement between him and the tenant, and if he enters into such an agreement, he would no doubt be bound by his representation to the tenant not to pay rent all the end of every month. However, as was explained in Alimullah's case, g the burden of proving such an agreement between the landlord and the tenant is not to be inferred lightly and cannot generally be inferred from the mere fact that the landlord had received rent from his tenant a irregular intervals, therefore, the observation of Muhammad Yaqoob AF, J., (as he then was), does not help the petitioner's case, because he has failed to prove that the respondent, through her husband, had agreed to alter the terms of the tenancy with the petitioner and to receive rent from him at long intervals.

The petition is without merit, but as the petitioner is running his dispensary in the demised premises, we give him four months' time to hand over the vacant possession of the demised premises to the respondent provided he continues to deposit the monthly rent in accordance with the law.

Petition dismissed.

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