Find a Lawyer

First Rent Appeal No. 264 of 1983, decided on 27th February, 1986.

‑‑‑Ss. 15 & 21‑‑Ejectment‑‑Default in payment of rent‑‑Evidence of rent collector of landlord showing that he used to collect rent periodically and such practice continued till filing of ejectment petition‑‑Landlord attempted to get premises vacated before filing of case and such notice was given by him to tenant‑‑Tenant neither a wilful nor habitual defaulter and was occupying premises since long and not a single instance of default pointed out against him‑‑Landlord himself made tenant to understand that rent was not payable every month but periodically‑‑Order of Rent Controller that tenant had not committed wilful default was, held, unexceptionable in circumstances.

1983 S C M R 1205; 1986 C L C 93 and 1985 C L C 21 ref. P L D 1984 Kar. 373 rel.

Muhammad Sadiq for Appellant.

Siddiq Mirza for Respondent.

Date of hearing: 9th February, 1986.

This First Rent Appeal, under section 21 of Sind Rented Premises Ordinance, 1979 has been filed by the appellant /landlord, Ghulam Muhammad Dossul, against the order dated 27‑1‑1983, of VIII Senior Civil Judge and Rent Controller, Karachi whereby he has dismissed the Rent Application of the appellant.

2. The facts of the rent case are that respondent Muhammad Hussain, is a tenant of the premises of a Flat No. 3‑A, Block No.l on Plot No. R.C.11/21/2, Fatima Kassiram Street, Karachi, at the monthly rent of Rs.8. The rent case under section 15 of Sind Rented Premises Ordinance, 1979 was filed by the appellant on the ground of default in payment of rent from January, 1980 for 6 months. It is also stated in the rent application that the respondent /tenant is regular defaulter and has not paid rent from January, 1980 till filing of the rent case.

3. Respondent in his written statement stated that rent from February, 1980 to January, 1981 was sent through money order dated 10‑1‑1981, which was returned undelivered and again he sent money order on 17‑2L1985 which appellant accepted.

4. On the pleadings of the parties the following issues were framed by the Rent Controller:

(i) Whether the respondent has committed wilful default in payment of rent What should the order be

5. The appellant in support of his case examined his Rent Collector Suleman Ex.5 while respondent examined himself as Ex.6.

6. I have heard Mr. Muhammad Sadiq for the appellant and Mr. Siddiq Mirza Advocate for the respondent.

7. The relationship between the appellant and respondent is not disputed and the rate of rent at Rs.8 p.m. is admitted.

9. Mr. Mohammad Sadiq Advocate appearing for the appellant contended that applicant has failed to pay the rent, therefore, he is liable to be ejected. He has argued that practice of depositing rent in lump sum has been disapproved by the Superior Courts. He cited case reported in 1983 S C M R 1205 and 1986 C L C 93. Mr.‑ Siddiq Mirza Advocate, appearing' for the tenant submitted that the respondent has not committed wilful default but the Rent Collector of landlord used to collect rent in lump sum and when he did not turn up the rent was tendered by money order which appellant accepted. He referred the cases reported in P L D 1984 Kar. 373, 1985 C L C 21 and judgment dated 22‑8‑1985, in F.R.A. No. 1044 of 1982 (unreported).

8. In the present case the admitted position is that upto filing of this rent case, the respondent was in default and first time he tendered rent by money order on 10‑1‑1981 which was returned undelivered thereafter on 17‑2‑1981 he again sent rent by another money order which appellant accepted.

9. P.W. Suleman Ex.5 Rent Collector of the appellant in his evidence has stated that he used to receive the rent in lump sum from the respondent some times for 3 months and some times more than 3 months and that after the January, 1980 he never went to collect the rent as his Seth deputed him for other work. He has further stated that he does not possess the power of attorney from the applicant. He has admitted in his cross‑examination that appellant issued notice to the respondent in December, 1980 in which, he was asked to vacate the premises in dispute as building is in dangerous condition.

10. No doubt it is incumbent on the tenant to pay rent regularly to the landlord but the circumstances of this case are different which need consideration. It is clear from the evidence of Suleman that landlord used to collect the rent periodically and such practice continued till the rent case was filed. The other factor in this case is that before filing the rent case appellant wanted to get the premises vacated and such notice was given to the respondent in December, 1980. The record shows that respondent is a tenant of a flat since 1971 and not a single instance of default has been pointed out therefore respondent cannot be termed as habitual defaulter. In a case of Ghulam Abbas Adam Ali Jeevaji v. N. Hassanali & Co. reported in P L D 1984 Kar. 373 it has been observed as under:‑---

"The only proposition favourable to the tenant which can be found out is that if such practice is proved, discretion might be exercised by the Rent Controller against evidence of the tenant. But this proposition is qualified by the condition that such discretion can be exercised only if the Rent Controller is satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. If the Rent Controller is not satisfied about this condition, discretion should be exercised judicially and not in an arbitrary manner and default should not be condoned on any hypothesis. It will not, therefore, be correct to say that if the landlord accepts rent for long periods the discretion against evidence should be automatically exercised in favour of the tenant. From such conduct it cannot be implied that the landlord had made the tenant believe that the rent was not payable by him every month. There may be several reasons why the landlord had accepted the rent after the tenant had made the default, the acceptance by the landlord of rent at long intervals does not necessarily lead to the conclusion of such an agreement. His failure to collect rent regularly may be due to preoccupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc. The receipt of the rent for several months at a time may be a proof of condonation of default by the landlord and not of any consent to vary the terms and conditions of lease regarding payment of rent. In view of these diverse possibilities, unless there be a definite proof to that effect it cannot be inferred from such conduct of the landlord that he had made the tenant believe that the rent was not payable monthly by him. There must be specific proof on the record in order to arrive at such a conclusion before the Rent Controller exercises his discretion in favour of the tenant. In other words, there must be material on the record to prove that the default was not wilful or deliberate."

It is clear from the evidence that appellant /landlord has made the respondent to understand that rent was not payable by him every month therefore in my view this is not a case of wilful or deliberate default. The respondent has taken plea that there was practice of receiving the rent in lump sum and he has proved his case through Suleman rent Collector of the appellant. The upshot of the above discussion is that Rent Controller has properly exercised his discretion in favour of the respondent. He has rightly come to the conclusion that respondent had not committed wilful default in payment of rent, therefore, the order of the Rent Controller calls for no interference. The appeal is dismissed with no order as to costs.

M.Y.H./G‑19/K Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.