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First Rent Appeal No. 919 of 1983, decided on 24th February, 1987.

---S.15(2)(ii)--Ejectment proceedings--Default in payment of rent- Duty of tenant--Tenant was duty bound to pay or tender rent to landlord--Tenant should make all possible efforts to pay rent either directly to landlord or through Court of law, even if landlord or his Rent Collector had not gone to collect rent--Plea of tenant that he could not pay rent to landlord because address of landlord was not available with him was not tenable as he was tenant of landlord for the last 20 years and such plea could not absolve tenant of his responsibility to pay rent to landlord.

Mahboob Ali v. Abdul Mannan and others 1984 C L C 1204; 1984 C L C 2332 and 1984 C L C 2599 ref.

---S.15(2);ii)--Default in payment of rent once committed by tenant, held, could not be wiped out or erased by subsequent payment nor penalty of eviction that has been incurred by reason of such default could be stayed off by subsequent payment of rent--Finding of Rent Controller that tenant who had remitted entire arrears of rent before filing of rent case had no intention to commit default was incorrect in circumstances.

P L D 1964 (W.P.) Kar. 206 ref.

---Ss. 15 & 21(1)--Mala fides of landlord--Proof--Mere fact that landlord increased rent in case of other tenants of premises, held, would not establish mala fides of landlord in filing ejectment application against other tenant.

Shafaat Hussain for Appellant.

M. Asghar Hussain for Respondent.

Date of hearing: 17th March, 1987.

This appeal is directed against the order of learned XII Senior Civil Judge/Assistant Sessions Judge and Rent Controller, Karachi, whereby the appellant's application for ejectment against the respondent on the ground of default was dismissed.

2. The appellant is the landlord of the tenement No.2 of the building standing on plot No. 8/3, R. C. 10, Asylum Road, Ranchore Lines, Karachi, of which the respondent is his tenant on a monthly rent of Rs. 15 plus 0.75 paisa as betterment tax.

3. The appellant filed an application for ejectment on 1-4-1985 alleging that the respondent was a regular defaulter and he had failed to pay the agreed monthly rent for the period commencing from November 1979 till June 1981. The respondent filed his written statement denying the allegations and contending that the appellant's rent collector used to come to the premises to collect the rent but he did not do so after October 1979. The appellant's address was not known to him and it was after great efforts to trace trim out that the respondent came to know of his address and remitted the; rent of Rs. 204 by money order on 9th December, 1980. The appellant refused to accept and consequently the respondent filed Misc. Rent Case No. 202/81 and deposited the rent in Court on 1st February, 1981. He further pleaded that the appellant had not come to the Court with clean hands inasmuch as he was in the habit of coercing the tenant to increase the rent exhorbitantly. It was claimed that the appellant was interested in getting the rent increased by the opponent and other tenants. The parties examined themselves and their witnesses. They were also cross-examined by their respective counsel.

4. The learned Rent Controller framed the following issues for adjudication:--

(1) Whether the opponent has committed default -in payment of rent

(2) What should the decree be "

The finding on issue No.1 has been recorded in the negative and, consequently, the application has been dismissed.

5. I have heard the parties' representatives at length. The learned counsel for the appellant contended that the admitted position on record was that the respondent had failed to pay the rent for the period from 1.1-1-1979 to 30th June, 1981. The only ground taken by him for not paying the rent to the appellant was that he did not know the address of the appellant and that immediately upon coming to know of the address he remitted the rent by money order on 9-12-1980. The rent was admittedly refused by the Appellant. The counsel submitted that the delay in non-payment of rent for such a period was unexplained. The plea with regard to the address of the appellant being not known to the respondent was unsustainable in view of the fact that the respondent was tenant of the disputed premises for over a period of 20 years and there were about 20 tenants in the same building who were paying the rent to the appellant regularly. The plea, therefore, taken in the written statement and as deposed by the respondent in his affidavit-in-evidence that the rent collector of the appellant was collecting the rent and had not contacted him to collect the rent was without any basis. The counsel submitted that it was for the respondent to prove that the rent collector was actually collecting the rent and that he had failed to do so. The respondent has failed to establish this fact. He further that the respondent was under legal obligation to pay the rent to the appellant and notwithstanding the fact that the applicant or his rent collector had not gone to the respondent to collect the rent he should have made all possible efforts to pay the rent either directly to the landlord or through Court of law.

With regard to the plea of the respondent that there was a practice of payment of accumulated rent, the learned counsel submitted that in the case of Mahboob Ali v. Abdul Mannan and others reported in 1984 C L C 1204 this Court has held under:-

"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 accumulated 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 ht's peril of being ejected."

6. In support of his contention that the mere plea of the respondent that the address of the appellant /landlord was not known to him had no force, the counsel placed reliance on a decision of this Court in 1984 C L C 2332. In that case also the tenant's plea was that the address of the landlord given in the agreement was not complete and hence it was not possible for the tenant to tender rent by money order or deposit in Court. The Court held:-

". . . The respondent should have established the fact that although there is a written agreement, its copy had not been supplied to her. In any event if the address was not available the respondent could have availed the procedure provided under law for depositing the same in Court."

To the same effect is another authority reported in 1984 C L C 2599. In this case also the Court held:-

"...Even if the appellant is believed where he says that he could not trace out the whereabouts of the landlord he cannot be absolved of his responsibility to pay the rent because in such case he was liable to deposit the rent with the Rent Controller".

7. In the facts and circumstances of the case I am clearly of the view that the respondent has utterly failed to establish that despite having made all possible efforts he was unable to tender the rent as and when it fell due. The remittance of rent after a lapse of about a year by money order could not save the tenant of the consequences that ensued from his failure to pay the rent as and when it fell due. In the facts and circumstances of the case and upon perusal of the evidence I am further firmly of the view that there is no escape from the conclusion that the respondent had deliberately and without any reasonable ground failed to a and tender the rent due and payable by him.

The then High Court of West Pakistan, Karachi Bench, in a case reported in P L D 1964 (W.P.) Karachi 206 has held as under:

" ....Secondly, a default in the payment of rent as contemplated by section 13(2)(i) of the Ordinance having once been committed, such default cannot be wiped out or erased by subsequent payments 'of this rent. Nor, can the penalty of eviction that has been incurred by reason of such default be stayed off by subsequent payment of rent."

8. Under the aforesaid facts and circumstances of the case, I hold that the learned Rent Controller has committed an error in holding that the opponent (respondent) had remitted the entire arrears of rent before filing of this case and he had no intention to commit default.

9. In the result the appeal is allowed.

10. Before parting with the case I would like to place on record that it was not the case of the respondent at any stage that the appellant had in fact demanded enhancement of rent from him. Even if it is, for the sake of arguments, accepted that the appellant had increased the rent in the case of other tenants yet it would not come to the help of the respondent to establish a case of mala fides of the appellant in filing the ejectment application against him.

11. By consent four months' time is granted to the respondent to vacate the dispututed premises subject to the respondent's paying the monthly rent regularly in terms of the order of the Rent Controller.

H.B.T./G-18/K Appeal allowed.

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