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First Rent Appeal No.735 of 1984, decided on 17th March 1987.
---Ss.15 & 21--Default in payment of rent--Tenant, held, could not escape liability of being held in default payment of rent if he failed to pay rent in terms of Rent Ordinance on plea that landlord had accepted accumulated rent for some months on several occasions or that there was a practice of making payment of rent on happening of certain events on part of landlord.
---Ss.15 & 21--Ejectment--Default in payment of rent--Tenant failing to pay or tender rent within period prescribed by -law on plea that landlord had been accepting accumulated rent for some months on certain occasions and that there was practice of sending bills for more than one month for payment of rent by landlord which he had not followed--Tenant, held, committed default--Order of Rent Controller holding otherwise was set aside and tenant ordered to be evicted in circumstances.
Mrs. Aleem Ahmed v. Ameer Ali P L D 1984 S C 34; 1981 S C M R 93; 1984 C L C 1201 and P L D 1985 Kar. 196 rel.
1984 S C M R 755; 1984 C L C 497 and 1984 C L C 71 ref.
Sami Ahmed Tirmizi for Appellant.
Salim Karamally for Respondent.
Date of hearing: 17th March, 1987.
This appeal is filed by Adam Limited, appellants landlords under Section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) against the order of the learned XIIth Senior Civil Judge/ A.S.J./Rent Controller, Karachi dated 23-5-1984, whereby she dismissed the application for ejectment against the respondent/ tenant.
2. Briefly stated the relevant facts are that the appellants are the owners/ landlords of the building known as Haji Adam Chambers, situated on Altaf Hussain Road, Karachi. The office premises measuring 1,428 Sq. Ft. on 5th floor of the said building were let-out to the respondent at a monthly rent of Rs.1,099.56.
3. The appellants filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on 15th October, 1976 for eviction of respondent on ground of default in payment of rent for the period from April, 1976 to October, 1976. It was further averred in the application that the respondent was also liable to pay Betterment Tax @ Rs.54.98 p. m. and that he had failed to pay the same for the period from the prior to 1-7-1976 despite receiving the bills from the appellants. The respondent contested the proceedings before the Rent Controller by filing the written statement in which it was pleaded that the respondent was statutory tenant of the appellants and that as per practice the appellant used to send the bills for monthly rent from time to time through their Rent Controller, for periods varying from one to two months and even at times for more than two months and further the appellants also used to collect rent in advance by submitting the bills. On receiving the bills the respondent used to pay the same regularly and punctually. It was further pleaded therein that the last bill sent to the respondent through the appellants' Rent Controller was received on 8-4-1976, which was for the period from January to March, 1976 and it was, as per practice, duly paid on 16-4-1976. The respondent requested the appellants to send their bills but they kept it on promises. The respondent, it was further stated, out of abundant precaution and suspecting the mala fide intention of the appellants sent to them, Pay Order for Rs.8,796.45 being the rent of eight months i.e. from April, 1976 to - November, 1976 through its letter dated 10-10-1976. The "appellants, however, returned the Pay Order informing the respondent that they had filed an ejectment case against it. The respondent also denied the liability to pay the Betterment Tax. However, it 'expressed its willingness to pay the same if it was found to be legally, payable by it.
4. The Rent Controller framed the following issues:
"(1) Whether the opponents committed default in payment of rent from April, 1976
(2) Whether the opponents are liable to pay Betterment Tax from 1-7-1976 If so, have the opponents failed to pay the same to the applicants
(3) What should the order be "
5. She decided the issue No.1 in the negative. Regarding issue No.2 she held that the respondent was liable to pay Betterment Tax with effect from 1-7-1976 but it had not committed default in payment thereof. In the result, she dismissed the application.
6. The learned counsel for the appellants submitted that notwithstanding the fact that there was a practice of issuing bills for more than one month still that practice would not override the law as held by the Supreme Court of Pakistan in the case of Mrs. Aleem Ahmed v. Ameer Ali, reported in P L D 1984 S C 34. In support of his contention the learned counsel also placed reliance on the decision of the Supreme Court of Pakistan reported in 1981 S C M R 93 and 1984 C L C 1201. He also placed reliance on a decision of this Court reported in P L D 1985 Karachi 196. With regard to Betterment Tax, the learned counsel submitted that in the Sind Finance Act, 1975 which levied the betterment-tax on annual value of the building and lands in a, rating area there is nothing specifically provided as to whether it was to be paid by the landlord or tenant.
7. Mr.Saleem Karam Ali, the learned counsel for the respondent developed his arguments entirely on the premises that the respondent had proved to the hilt that there existed a practice with the appellants to issue bills sometimes every month and sometimes for the period of more than one one month. He vehemently urged that having established this practice the respondent has discharged the burden that la; upon it and it was thereafter upon the appellants to have brought some evidence on record in rebuttal which has not been done. Consequently, looking to the well-established practice between the parties with regard to the payment of rent on receipt of rent bills and on account of appellants' failure to issue rent bill for the months in question; the respondent could not be held to have committed default in payment of rent. The learned counsel further submitted that the bills issued by the appellants vide Exhibits 6 to 13 there is no mention of betterment tax and hence it cannot be pleaded now by the appellants that the respondent has committed default in payment of betterment tax. No demand for betterment tax was made by the appellant and hence there was no question of the respondent having committed default in payment of rent. He also urged. that no Notice was sent to the respondent prior to the institution of the Ejectment application against it. The counsel further vehemently urged that the witnesses of the respondent had in categorical terms stated that the appellants were called upon to issue the bills but they did not do so and kept the respondent on promises. The learned counsel relied upon a decision of the Hon'ble Supreme Court of Pakistan reported in 1984 S C M R 755 where it is held that the burden to proof the practice lies upon the tenant and since in the instant case that burden was duly discharged, the Rent Controller, in his submission, was justified in holding that there was no default in payment of rent. He also drew my attention to a decision of this Court reported in 1984 C L C 497 where B.G.N. Kazi, J. held as under:-
"It is apparent from the evidence on record that a practice of payment of rent as already stated had continued and before the tenant could be burdened with committing default by following the aforesaid practice, it was for the landlady to at least give notice or express a desire for the change of the practice. The default in the circumstances stated, by the tenant should not have been considered to be deliberate and on the contrary the payment of rent in the account of the landlady with the Ismailia Co-operative Housing Society Limited shows that every endeavour was made to make a proper tender and payment of rent."
The learned counsel for the respondent therefore urged that in the facts and circumstances of the case it cannot be said that respondent had wilfully committed default in payment of rent. Lastly, Mr.Salim Karamally submitted that three months' rent, as per Agreement of tenancy, was lying deposited with the appellants and that if it was taken into consideration then there was no default left. It is an admitted position that the Rent Agreement has not been brought on record nor any of the witnesses deposed that three months' rent is lying deposited with the appellants. In this view of the matter the contention of the learned counsel is held to be devoid of force and it is repelled accordingly.
8. In reply, Mr.Sami Ahmed Tirmizy drew my attention to another decision of this court reported in 1984 C L C 71, where it is held as under: -
"In both these laws it is mandatory for the tenant to pay rent for each month when it is due except when there is an agreement between parties to the contrary."
9. I have given my earnest consideration to the submissions made at the Bar as well as have carefully gone through the evidence available on record. In view of the categorical pronouncement by the Hon'ble Supreme Court of Pakistan in the cases referred to above that a tenant cannot escape the liability of being held in default in payment of rent if he fails to pay the rent in terms of the Rent Restriction Ordinance on the plea that the landlord has accepted the accumulated rent for some months on several occasions or that there was a practice of making the payment of rent on the happening of certain events on the part of the landlord.
10. A bare perusal of section 13(2) of the West Pakistan Urban Rent Restriction. Ordinance, 1959 further manifestly indicates that if the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in the absence of any such agreement, within sixty days after the rent has become due for payment, and if the Rent Controller is satisfied to that effect then he has to allow the application for ejectment.
11. Keeping in view the law as enunciated by the Hon'ble Supreme Court of Pakistan in the cases referred to above and in the presence of the clear provision of law as mentioned above, I am firmly of the view that the Rent Controller has erred in holding that the respondent had not committed-default in payment of rent. I would, therefore, allow the appeal, set aside the order of the Rent Controller on the issue of default, and order the eviction of the respondent from the demised premises. The decision of the learned Rent Controller regarding issue No.2 is proper and does not call for any interference.
12. The respondent is, however, allowed six months' time to vacate the demised premises subject to the payment of monthly rent regularly in terms of the tentative rent order passed by the Rent Controller and the default in doing so would render it liable to be evicted without any notice.
M.Y.H./A-128/K
Appeal allowed.
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