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Before Abdul Razak A. Thahim. J
TAHIR ALI AND 2 OTHERS-Appellants
versus
MESSRS SH. MIRAN BUX KARAM BUX-Respondents
First Rent Appeal No. 351 of 1982, decided on 30th November, 1986,
-- S. 13-Sind Rented Premises Ordnance (XVII of 1979), S. 21 Default in payment of rent-Landlord, according to a condition of tenancy, was to present a bill and receive rent from tenant-Nothing coming on record that landlord presented a bill and tenant refused to make payment-Receipts produced showing that rent was being collected on yearly basis-Tenant feeling an apprehension, depositing rent in advance for whole year in question-Conduct of landlord furnishing sufficient justification for Rent Controller to exercise his discretion in favour of tenant -Order of Rent Controller, dismissing ejectment application of landlord, on ground of default, upheld.
1981SCMR93and1984SCMR755ref.
P L D 1985 Kar. 74 rel.
I. M. Patel for Appellants.
S. Manzar Ahmed for Respondent.
Date of hearing : 30th November, 1985.
Rent Case No. 1050 of 1974 was filed by appellant under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground of default in payment of rent from I-1-1974 till filing of the rent case.
2. In written statement, respondent took the plea that there was practice between the parties whereby accumulated rent for one year vas being collected in advance from time to time. The Rent Controller by an order dated 21-2-1982 dismissed the rent case. Appellant-landlord being aggrieved with this order has filed this appeal under section 21 of the Sind Rented Premises Ordinance ,- 1979:
3. On behalf of appellant one Inayat Hussain, Property Manager and Rent Collector, was examined and he has produced one letter, Exh. A/2, showing the conditions of the tenancy whereas on behalf of respondent one Shaikh Bashir Ahmed, Manager of opponent, was examined.
4. I have heard Mr. I. M. Patel for the appellant. It is contended by the learned counsel that respondent has committed default in payment of rent from January 1974 to April 1974 for 4 months and rent case was filed on 24th April, 1984. According to the terms of the tenancy rent is liable to be paid in advance on or before first of the same month and respondent failed to pay the rent, therefore, are liable to be evicted from the premises. He has referred to the cases reported in 1981 S C M R 93, 1984 S C M R 755, 1985 M L D 1114 and 1985 C L C 2413. It is also argued that the practice has not been proved as respondent in his cross- examination admitted that rent was to be paid every month.
5. Mr. S. Manzar Ahmed appearing for the respondent contended that there was a practice that accumulated rent was being collected by the appellant for the whole year whenever bills were presented. He has referred to the case reported in P L D 1985 Kar. 74.
6. The rate of rent and relationship is not disputed between the parties. It is also an admitted position that rent of January to April 1974 was neither paid nor any attempt was made to tender but on 17-5-1984 respondent deposited the rent from January 1974 to December 1974 and no further default has been committed. It is argued that rent was not collected purposely to make out a case for default. On this he has referred to the conditions of tenancy of agreement. The condition No. 5 of the tenancy produced as Exh. A/A is as under :----
"5. No rent shall be paid without the presentation of a bill and the signature of landlord or his agent shall always be obtained on pay ment. The landlord will not be responsible for any payment made for which signatures is not obtained."
7. In the present case nothing has come on the record that appellant presented a bill and respondent has refused to make payment. Receipts Exhs. A/B, A/C, A/E, A/F and A/D have been produced through Rent Collector of appellant which show that rent was being received yearly from which it appears that on presentation of a bill as per terms and conditions of the tenancy the payment was made immediately and receipts were acknowledged. Rent for January to December 1969 was paid on 5th June, 1969, January to December 1970 on 23-2-1970, January 1971, December 1971 A on 1-4-1971, January 1972 to December 1972 on 14-2-1972 and January, 1973 to December, 1973 on 25-4-1983. These receipts have not been denied. It is clear that all along the rent was being collected on yearly basis. Not only this but respondent immediately under the circumstances feeling an apprehension went and deposited the rent in advance for the whole year 1974 in miscellaneous rent case on 17-5-1974. This question has been recently considered by the Supreme Court while deciding Civil Petition No. 577-K of 1985 on 26th August, 1986 where their lordships have observed as under :-----
"3. We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July 1974 to May 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy. Though the rent bad not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by .41st. Hamida Khanum, wife of the petitioner, the respondent started depbsiting the rent in the Court of the con cerned Rent Controller and thus under the circumstances it cannot be said that the respondent is a wilful defaulter. Finding no merit in the petition, the same is dismissed."
8. In these circumstances, I am of the view that the Rent Controller' has rightly exercised his discretion in favour of the respondent. There is
no merit in the appeal which is accordingly dismissed with no order as to costs.
.
M. Y. H./5082/K Appeal dismissed.
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