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First Rent Appeal No. 49 of 1983, decided on 22nd January, 1984.

‑‑ Ss. 15 & 21‑Default in payment of rent‑Practice of payment of accumulated rent‑Any alleged practice of payment of accumu lated rent, held, cannot modify statutory obligation of a tenant under Ordinance‑Tenant cannot absolve himself from payment of rent on basis that landlord had accepted accumulated rent previously a few times‑Tenant allowing accumulation of rent on assumption that landlord would accept same as he had done previously, does so at peril of being ejected.

Syed.Riaz Ali v. Shabir Ahmed Khan 1971 S C M R 598 ; Shaikh Muhammad Hasan & Co. v. Mian Mahmood Ahmed Khan 1975 S C M R 355; Abdul Rashid v. Saleh Muhammad 1980 S C M R 506; Tar Muhammad Janoo and another v. Tahir Ali and others 1981 S C M R 93 ; Muhammad Hamiduddin v. Feroze Ahmed and others 1932 S C M R 442 and Mrs. Alima Ahmad v. Amir Ali P L D 1984 S C 32 rel.

Muhammad Hanif Mangi for Appellant.

Mohanial for Respondents.

Date of hearing : 22nd January, 1984.

This appeal is directed against the order dated 26th March, 1983 passed by the learned Rent Controller, Larkana in rent application No. 7/1982 ordering ejectment of the appellant from the shop in dispute.

The brief facts leading to the tiling of the above appeal are that respondents filed above rent application on the ground of default for the period commencing from October, 1977 to June, 1978 and also on the ground of personal requirement. The above application was resisted by the present appellant. The learned Rent Controller on the basis of the pleadings of the parties framed the following five issues :‑----

(1) Whether the application is in proper form

(2) Whether the applicants have got rent notice under section 13‑A of the old Rent Restriction Ordinance, 1959 to the opponent and whether it was necessary

(3) Whether the opponent has defaulted in payment of rent

(4) Whether the shop in dispute is required by the applicants for their personal use

(5) What should the order be

Respondent No. 3 and two witnesses Nek Muhammad and Razi were examined in support of the above rent application, whereas the appellant examined himself and one Gulab Khan. The learned Rent Controller after hearing the parties allowed the rent application on the ground of default and rejected the same on the ground of personal requirement. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. Muhammad Hanif Mangi has vehemently urged that respondent No. 3 used to collect accumulated rent for number of months and years which practice was established before the Rent Controller and, therefore, the learned Rent Controller's order of ejectment is not sustainable. On the other hand it was con tended by Mr. Mohanlal that the appellant had failed to prove any practice of acceptance of accumulated rent by respondent No. 3 and that in any case the alleged practice cannot modify the statutory provi sions of the Rent Ordinance.

3. It is an admitted position that the appellant had not paid rent for the above period commencing from October, 1977 to June, 1978 i. e. for nine months. Mr. Mangi has invited my attention be the admission made by respondent No. 3 to his cross‑examination to the following effect :‑

It is fact that I had received some rent from opponent in lump sum."

He has also referred to an account book filed by the appellant which according to Mr. Mangi contained the following three receipts for the payment of accumulated rent and acceptance of the same by respondent No. 3 by signing the above receipts :‑---

(1) For the period from February, 1976 to 31st May, 1976 dated 3rd June, 1976.

(2) For the period commencing from June, 1976 to 31st October, 1976 dated 20th November, 1976.

(3) For the period commencing from November, 1976, according to Mr. Mangi (wrongly written 1977 instead of 1976) to 30th September, 1977, dated 3rd October, 1977.

On the other hand Mr. Mohanlal has pointed out that the statement of respondent No. 3 is to be read as a whole and the above alleged admission on the part of respondent No. 3 for receiving some rent from appellant in lump sum does not establish alleged practice. He has further submitted that since the above three receipts were not shown to respon dent No. 3 in the cross‑examination, the same cannot be looked into. I am inclined to hold that the admission on the part of respondent No. 3 quoted hereinabove relied upon by the appellant does not establish any practice, which entitled the appellant to pay accumulated rent. Since the above three receipts were not either specifically proved by the appellant through his examination‑in‑chief nor they were shown to respondent No. 3 in the cross‑examination, in my view the learned Con troller has rightly ignored the same.

4. Even otherwise the consistent view of the Hon'ble Supreme Court has been that any alleged practice of payment of accumulated rent cannot modify the statutory obligation of a tenant under the Rent Ordinance to tender rent for month to month. In this regard reference may be made to the cases of Syed Riaz Ali v. Shabir Ahmed Khan (1971 S C M R 598), Shaikh Muhammad Hasan & Co. v. Mian Mahmood Ahmad Khan (1975 S C M R 355), Abdul Rashid v. Saleh Muhammad (1980 S C M 8,506), Tar Muhammad Janoo and another v. Tah5r Ali and others (1981 S C M R 93), Muhammad Hamiduddin v. Feroze Ahmad and others (1982 S C M R 442) and Mrs. Alima Ahmad v. Amir Ali (P L D 1984 S C 32). In the first case the Hon'ble Supreme Court while declining to grant leave to appeal against the judgment of the erstwhile High Court of Sind and Baluchistan held that a tenant cannot plead practice periodical payment in presence of a written lease deed stipulating the payment of rent of each month. In the second case the Hon'ble Court while dismissing petition to leave held that the contention that tenant/petitioner used to pay rent in lump sum every six months or one year neither was pleaded nor proved and that the contract of such description was even otherwise contrary to the provisions of section 13(2) of the late West Pakistan Rent Restriction Ordinance. In the third case the Hon'ble Supreme Court while dismissing petition to leave held that parties cannot contract themselves out of the provisions of law nor a party can plead practice contrary to law and the tenant is required by law to pay rent by 15th of every month under the late Ordinance No. VI of 1959. Whereas in the above fourth case again the Hon'ble Supreme Court while dismissing the petition to leave observed as follows :‑---

"7. We are impressed by this contention. When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. The mare 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 paying 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 expect 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, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non‑payment of rent in time every month on the ground that the landlord has been accepting the same and argue that he same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits."

Adverting to the fifth case it may be stated that the Hon'ble Supreme Court upheld the judgment of the High Court wherein it was held that the payment of accumulated rent twice would not establish the practice. The Hon'ble Supreme Court reiterated its view taken in the above‑cited case reported in 1980 S C M R 506.

The last case being the latest pronouncement of the Full Bench of the Hon'ble Supreme Court in the case of Mrs. Alima Ahmed v. Amir Ali in which while allowing the appeal against the judgment of learned Single Judge of the High Court the following observation was made :‑---

"The ejectment application was instituted on 1st March, 1971. The appellant alleged non‑payment, default and neglect on the part of the respondent to pay monthly rent from April, 1970 to February, 1971. The respondent in his written statement admitted payment of rent from April, 1970 to September, 1970, by cheque, dated 20th August, 1970 and next by money order on 27th March, 1971 for the rent of October, 1970 to March, 1971. On this admission itself and even allowing him the benefit of law laid down in Muhammad Yousaf's case the tenant was clearly in default for April and May, 1970 and October to December, 1970. This was so in spite of his having received a notice (Exh. P. 10), dated 14th September, 1970 calling upon him to pay the arrears and the current rent directly to the landlady. 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 Trimizi'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 Trimizi'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 plenary 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 protec tions it cannot be relaxed or diluted on grounds of economic well being, fairness or in the name of justice."

5. It is evident that consistent view of the Supreme Court has been that a tenant cannot absolve himself from the payment of rent in terms of the Rent Ordinance on the basis that the landlord had accepted accumula ted rent previously a few times. If the tenant allows accumulation of rent on the assumption that the landlord would accept the same as he' had done previously, he does so at his peril of being ejected. In this view of the matter, the appeal has no merit and, therefore, it is dismissed. As the rent case was filed in 1982 and the present appeal was filed in April, 1983 against the ejectment order passed on 26th March, 1983 and as the subject‑matter is a shop I would allow the appellant one year time on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller order, failing which the respondents shall be entitled to file execution application before the expiry of the above period of one year. Furthermore, in case the appellant failed to hand over the vacant possession on the expiry of one year, the Rent Controller shall issue a writ of ejectment without further notice to the appellant. There will be no order as to costs.

M. Y. H. Appeal dismissed.

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