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First Rent Appeal No.408 of 1985, decided on 4th February, 1987.

---S.15--Default in payment of rent--Practice of payment of rent in lump sum--Held, in order to prove practice it should be shown that it had been accepted by both parties and that it was continuous and consistent.

---Ss.15 & 21--Ejectment--Default in payment of rent--Tenant stating that landlord himself was habitually collecting rent in lumpsum and producing two receipts in proof thereof--Advance rent was paid in one receipt while in other arrears were accepted--No practice of payment of rent in lumpsum established by documentary evidence and contention of tenant was thus negated--Order of ejectment maintained.

1986 S C M R 1857 ref.

P L D 1984 S C 32 and 1980 S C M R 506 rel.

Hussain Adil Khatri for Petitioner.

S. Inayat Ali for Respondent.

Date of hearing: 4th February, 1987.

The respondent filed ejectment application against the appellant in respect of .a shop situated on Plot No. N.P. 4/13 Kundan Street, Karachi, on the ground that he has failed to pay rent from May,1977 till July, 1978. The appellant denied the allegation and pleaded that he had paid rent to Azhar Gul Dada a sum of Rs.2,540 in advance under receipt No.261, dated 10-9-1971 and after that the father-in-law of Azhar Gul Dada collected rent upto April, 1977 and also adjusted the taxes paid on behalf of the respondent. It was further pleaded that after April, 1977 no person came to collect rent and the respondent did not pay any taxes which were paid by the appellant. The appellant tried and asked on telephone to tender rent, but he was assured that the rent will be collected after three years. It was also pleaded that when he asked for reasons for non-payment of taxes, the respondent replied that she wanted to increase the rent from Rs.65 to Rs.130. The appellant made attempt to send the rent through cheque, but the same was returned. The learned Controller granted the ejectment application by the impugned order.

Mr. Hussain Adil Khatri the learned counsel for the appellant has contended that a practice had developed between the parties for payment of rent in lumpsum, and further by conduct the respondent had created an impression which had led the appellant to believe that the rent was to be paid in lumpsum and not monthly. In this regard the learned counsel has referred to two receipts filed by him namely Ex.5/B and 5/C. The first receipt is, dated 10-9-1979 through which the respondent received Rs.2,340 as advance rent from October, 1971 to September, 1974. In the second receipt Ex.5/C, dated 18-4-1977 which is in respect of rent from October, 1974 to April, 1977 and on the back of the receipt the respondent has given adjustment to the taxes paid by the appellant and thus after deducting Rs.766 the rent has been received upto April, 1977. On the basis of these two receipts the learned counsel has pleaded that the appellant is not a wilful defaulter.

Mr. Syed Inayat Ali the learned counsel for the respondent has contended that firstly there is no practice established on record that the rent was being paid in lumpsum and secondly the affidavit of evidence filed by the appellant completely negates the plea that the appellant was under an impression or was led to believe by the respondent that the rent was to be paid in lumpsum and not monthly. In support of his contention the learned counsel for the appellant has relied on observation made in 1986 S C M R 1857 while Mr. Syed Inayat Ali has referred to P L D 1984 S C 32, and 1980 S C M R 506. Before any finding is given whether there is a wilful default and the tenant has been led to believe by the conduct of the landlord that he has not to pay monthly rent, but at intervals or in lumpsum, it is necessary to look into the pleadings as well as on the evidence of the parties. In the pleadings the appellant has stated that the respondent was habitual to collect the rent for three years, two years and after one year. In the affidavit he has also stated that Azhar Gul Dada collected the rent to lumpsum for three years and the same was the practice of the landlord and the rent was never collected every month or even a year, and in that regard reliance has been placed on the above two receipts. He has further stated that he tried to pay the rent to the respondent, but he did not accept it and assured that he will collect it after three years. Now the question is whether there was a practice between the parties and the appellant was led to believe that he had not to pay rent every month. Besides the pleadings reliance has been placed on these two receipts. The first receipt Ex.5/B shows that the rent was paid in advance and not after the expiry of one year, two years or three years. The second receipt Ex.5/G proves that the rent was paid after the expiry of about three years. In order to plead practice its should be shown that it has been accepted by both the parties, it is continuous and consistent. Both these receipts contradict each other. In one receipt advance rent has been paid and in the other receipt the arrear has been accepted. These circumstances and the fact that although the appellant knew that he was to pay rent monthly ash pleaded and alleged by him, he had been endeavouring to pay the rent to the Respondent, negate the contention of the appellant.

In view of the pleadings and the documentary evidence as' well as the affidavit of evidence filed by the parties no practice or belief created in the mind of the appellant as alleged has been established. Mr. Syed Inayat Ali the learned counsel for the respondent has referred to 1980 S C M R 506 in which it has been categorically observed that it is the obligation of the tenant to pay the rent monthly and no party can contract out of Statute. Reference has also been made by the learned counsel for the respondent to P L D 1984 S C 32 in which most of the cases on the point have been referred and authoritative pronouncement has been made. The appeal is, therefore, dismissed. The appellant is allowed nine months, time to vacate the premises.

M.Y.H./A-48/K Appeal dismissed.

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