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First Rent Appeal No.15 of 1984, decided on 23rd August, 1987.

---S.15(ii)--Wilful default in payment of rent--Long-standing practice adopted by- parties in respect of payment of rent of premises being that tenant used to make payment on account of taxes due against rented premises to concerned Authorities and then adjusted same against rent of premises at end of year--Where tenant otherwise used to discharge his liabilities in making payments of taxes, but failed to make payment for certain period, default in payment of rent, if any on part of tenant,' held, would not be wilful default, but would be technical' one for which tenant could not be penalised as according to practice, rent was to be adjusted at the end of the year.

Balwant Raj v. The Union of India A I R 1968 A11.14; In re: Subbarama Iyyer (1955) 2 M L J 775 and Abdul Aziz v. Abdul Ghani 1986 'S C 'M R 1857 ref.

Azhar Ali Siddiqui for Appellant.

K.A.Wahab-for Respondent.

Date of hearing: 11th March, 1987.

The appellant has assailed the order passed by the learned VIIth Senior Civil Judge and Rent Controller, Karachi, dated 1-12-1983; whereby an eviction application filed by her against the respondent was dismissed.

In the application, which was filed under the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance; 1959; the applicant had sought ejectment of the respondent on the grounds of default in payment of rent from July, 1973 to April, 1975 and violation of the terms of tenancy agreement. According to the appellant, the rent of the premises was Rs.250 per month and the respondent had committed default in payment of such rent in respect of twenty-two months. The total rent, according to the appellant, came to Rs.5,550 but instead the opponent paid only Rs.2,500 and thus committed default. It was also alleged that the agreement of tenancy related only to the ground floor of the building but the opponent had also occupied its first floor without the appellant's permission.

These allegations were denied by the respondent in his written statement, as according to him, he used to make payments on account of taxes due against the demised premises to the concerned authorities and then adjust the same against rent at the end of each year. In this way, it was contended by the respondent, that he had in fact, made over payment to the appellant. Consequently, according to him no default had been committed by him. The allegations of violation of the terms, of tenancy agreement were also denied by the respondent as there was nothing in the tenancy agreement to show that only the ground floor of the building had been rented out to the respondent.

The learned Controller on the basis of the oral as well as documentary evidence decided all the issues against the appellant and dismissed the eviction application, and hence this appeal.

Before this Court, Mr. Azhar Ali Siddiqui, learned counsel for the appellant has very candidly conceded that no default has been established against the respondent as far as the period from July, 1973 to May, 1974 is concerned. There is also no controversy on the point that the respondent used to discharge the liabilities of the appellant by making payments against taxes due in respect of the property to the K.M.C. and other concerned authorities. However, according to Mr. Azhar Ali Siddiqui, the respondent had failed to pay rent for eight months, that is to say, from July, 1974 to February, 1975 and therefore, default in payment of rent has been committed by him. Although it has not been denied by Mr.- K. A. Wahab, learned counsel for the Respondent, that after making two payments of Rs.176/50 and Rc.268/30 on 10-6-1974 and 11-6-1974 respectively, the respondent did not make any further payment on 'account of taxes on behalf o.' the appellant till 15-3-1975 or 18-3-1975, but according to the learned counsel, since admittedly, the practice was that rent for the premises used to be adjusted at the end of each year, therefore, in any case, there was no wilful default committed by the respondent.

In view of the circumstances enumerated above, the question to be determined is, whether the respondent failed to pay rent in respect of the demised premises and thus rendered himself liable for eviction, since according to section 15 of the Sind Rented Premises Ordinance, 1979 or section 13 of the Urban Rent Restriction Ordinance, 1959 a tenant would make himself liable for eviction if he has failed to pay rent in respect of the premises as provided in these sections. In Balwant Raj v . The Union of India (A . I . R . 1968 All. 14) , it was held that the words "fails to resume duty" appearing in Railways Establishment Code would apply only to a Railway servant who by a voluntary and deliberate act of omission stays away from duty and fails to report, and not to one who was prevented by a cause beyond his control to resume duty. In re: Subbarama Iyyer ((1955)) 2 MLJ 775) it was held that the words "fails to submit a return" in section 15(1) of the Madras General Sales Tax Act cannot be interpreted to mean "fails without reasonable cause". It would thus appear that failure can be inferred only where an obligation is not fulfilled voluntarily; but if omission to" fulfil an obligation occurs owing to circumstances beyond one's control or on account of the same being created by the person himself for whose benefit the obligation under the law exists then there can be no failure to fulfil the obligation. In Abdul Aziz v. Abdul Ghani (1986 S C M R 1857), the Supreme Court declined to grant leave to appeal to the landlord in a case where owing to a long-standing practice adopted by the landlord himself, arrears of rent used to be received by the landlord from the tenant in a lump sum.

The cases referred to above are fully attracted to the facts of the present case as evidently, according to the practice adopted by the parties rent was being adjusted at the end of each year. Such being the admitted position, a tenant cannot be penalised for a technical default. Under the circumstances, discretion by the learned Controller has been rightly exercised in favour of the tenant.

Although ejectment was also sought by the appellant on the ground of violation of the terms 'of the tenancy agreement, but this ground has not been pressed by Mr. Azhar Ali Siddiqui during the arguments and consequently, it would be futile to enter into any discussion on the point.

For the aforesaid reasons, the appeal filed by the landlord is dismissed

H.B.T./S-117/K. Appeal dismissed.

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