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Second Appeals Nos.70 and 71of 1982, decided on 16th July, 1986.

---Ss.13 & 15--Default in payment of rent--Tenant regularly paying rent to landlord except for certain occasions when arrears accumulated for two months--Tenant establishing by evidence that he never used to go to landlord for making payment of rent but same was collected by staff of landlord--Present arrears resulted on account of failure of landlord's staff to collect rent--Held, if landlord's staff failed to collect rent it would not be fair to penalise tenant for such default- Tenant had not wilfully neglected to tender rent--Order of Rent Controller ejecting tenant on ground of default to pay rent set aside in circumstances.

Mrs. Alima Ahmed v. Amir Ali P L D 1984 S C 32 and Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56 ref.

Fazal Ahmed and another v. Muhammad Abdul Shakoor 1981 C L C 793 rel.

I.H .Zaidi for Appellant.

Naimur Rehman for Respondents.

Date of hearing: 19th May, '1986.

These two Second Rent Appeals, under the provisions of section 15(2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 arise from the appellate judgments, passed by the Vth Additional District Judge, Karachi, dated 2-11-1982, allowing the appeals filed by the respondents and directing the appellants to vacate the disputed premises and give vacant possession of the same to the respondents within one month from the date of the judgment.

The facts giving rise to these appeals are that the respondents are the owners of premises known as Al-Farid Centre situated on Molvi Tamizuddin Khan Road, Karachi, wherein the appellants are their tenants in respect of room No.104. The monthly rent to be paid by the two appellants in respect of the said room was Rs.780.00 and Rs.680.18 respectively.

On 31st July, 1.977, the respondents filed eviction applications under section 13(2) of the W.P.U.R.R. Ordinance averring that the appellants had committed default in payment of rent for the months of May, June and July 1977. The appellants filed written statements wherein it was denied that any default had been committed by them as according to the appellants, the rent of the premises was being collected by the respondents from the office of the appellants at intervals and at their own choice and the same was being paid to the respondents whenever somebody had called at the appellants' office for that purpose. The appellants further averred that when they realised that the rent was not being collected by the respondents they sent the cheque in August, 1977 which was, however, refused by the respondents. Thereafter, according to the appellants, the arrears of current rent were being deposited and as such the appellants had not committed any default.

Both the parties examined one witness each in the case. The learned Rent Controller after considering the evidence adduced by the parties came to the conclusion that default actually committed by the appellants was only in-respect of May, 1977 as rent for that month, in any case, had to be tendered by the appellants latest by 30-7-1977, which admittedly was not done by them. It was further held that since rent for the months of June and July could be tendered by the appellants within sixty days from the time the same became payable, no default had been committed in respect of rent for the said months. Finally it was held that there was no wilful default committed by the appellants and consequently ejectment application was dismissed vide order dated 31st May, 1979.

The respondents thereafter filed appeals before the learned Additional District Judge which were allowed and the order passed by the learned Rent Controller was set aside and the appellants were directed to vacate the premises and handover possession of the same to the respondents, and hence these second appeals.

The contention raised by Mr.I. H . Zaidi, learned counsel for the appellants, has been that as default was only for one month, the same cannot be said to be wilful. Additionally, it was argued by him that the respondents had themselves, neglected to collect rent from the appellants which was contrary to the practice earlier prevailing as such no wilful default had been committed by the appellants. The argument of Mr.Naimur Rehman, on the other hand, was that it was the duty of the appellants to pay rent to the respondent in time and that since commission of default for one month had been established, the only course left for the learned Rent Controller was to eject the appellants from the premises.

Both the learned counsel have placed reliance on authorities. Mr.Naimur Rehman has relied upon Mrs.Alima Ahmed v. Amir Ali (PLD 1984 S C 32)wherein it has been held by the Supreme Court that promptness in payment of rent with an option to the tenant to deposit rent with the Rent Controller being condition precedent for enjoying protection, the same cannot be relaxed or diluted on the ground of economic well being, fairness or in the name of justice. It was further held that if the tenant was in default in paying or tendering rent and there being no plausible explanation for such default, the tenant was liable for ejectment. In Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56 it was held that the discharge of this statutory obligation by the tenant to be ready and willing to pay rent was a. condition of his protection and he can invoke discretion under section 13 of the Ordinance, only if he can establish that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligation. It was further held that a tenant would be entitled to the benefit of discretion under section 13, if he was not able to trace his landlord's whereabouts, despite reasonable efforts or if there was a genuine dispute about the landlord's title or if he had been regular over, a long period of years in the payment of rent but through inadvertence fell into arrears for two or three months, then he should be entitled to discretion in his favour because even a reasonable man can sometimes through inadvertence overlook his obligation.

Mr. I . H . Zaidi on the other hand has relied upon the case of Fazal Ahmed and another v. Muhammad Abdul Shakoor (1981 C L C 793) wherein in case of default in payment of one month's rent only, it was held that punishing tenant in such circumstances with ejectment would be unfair use of discretion.

Since default committed by the appellants for the month of May 1977, is not in dispute and the fact that that was the only default committed by the appellants also not being in dispute the only point to be considered in the instant case would be, whether the appellants had been themselves negligent in making payment in time or whether they were prevented by circumstances from discharging their obligation to the respondents. In this respect the evidence laid by the parties before the learned Rent Controller would be relevant. According to the evidence of Muhammad Abdur Rehman, the respondents' witness, the appellants had remained regular in paying rent to the respondents except on certain occasions when arrears used to accumulate for two months. The statement of this witness further shows that the- appellants never used to go to the office of the respondents for payment of rent but the same used to be collected by the respondents' staff, from the appellants. Such was he stand also taken by the appellants in their written statement before the learned Rent Controller. The appellants have therefore succeeded in establishing that the rent for the premises was sometimes being collected by the landlord's staff and sometimes arrears upto two months used to accumulate. Consequently, if rent seas not collected for three months, that is to say, May, June and July, 1977, it would not be fair to penalise the appellants for such default as it is very difficult to hold under such circumstances, that the appellants had wilfully neglected to tender rent for the months in question.

Mr. I . H . Zaidi, learned counsel for the appellants, has very heavily relied on 1981 C L C 793, the case to which I have earlier referred, as according to the learned counsel the facts of the instant there was evidence to show that rent was being accepted by the landlord regularly and the default in payment, actually established against the tenant, was in respect of one month only. Therefore, according to Mr.I. H. Zaidi the observations made in that case by the learned Single Judge of this Court applied with full force to the facts of these appeals. Although Mr.Naimur Rehman has tried to distinguish the said case with P L D 1973 Kar.56, and incidentally the same authority was also cited in 1981 C L C 793, but the iearnf3 Single Judge still held the view that the circumstances of the case did not warrant the tenant's ejectment from the premises. The Supreme Court case cited by Mr. Naimur Rehman is distinguishable owing to its different facts.

Mr.I.H.Zaidi has further pointed out that the premises have been rented out for commercial purposes and it would react very harshly on the appellants if they are ejected on account of technical default of one month.

I am therefore, of the view that the Judgments of the learned appellate Court cannot be sustained.

Consequently, I allow these appeals and set aside the Judgments of the learned Vth Additional District Judge, Karachi, dated 2nd November, 1982 and uphold the 'decisions of the learned Vth Rent Controller, Karachi.

There will, however, be no order as to costs in view of the nature of questions involved in these appeals.

M.Y.H./T-19/K Appeals allowed.

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