1984 PLP 1009 (CLC)

(a) Witness‑ ‑‑ Evidence‑Contradictory statement of a witness even if not challenged in cross‑examination, held, cannot be accepted. [Evidence]. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Sind Rented Premises Ordinance (XVII of 1979), S. 21 Default in payment of rent‑Practice of paying rent after several months‑Party pleading practice or custom, held, should specifically plead it giving sufficient particulars of such practice or custom so that other side may not be taken by surprise and proper issue may be framed in this regard and parties may have full opportunity to lead evidence. (c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Sind Rented Premises Ordinance (XVII of 1979), S. 21 Default in payment of rent‑Practice of payment of rent for several months‑Plea of practice or custom completely missing before Courts below‑Plea, held, cannot be allowed to be raised in second appeal‑Conduct of parties if establishing that any practice has developed, then it should be consistent and continuous duly accepted and recognised by both parties‑Rent, if paid for three months and some time for six months, cannot, held further, lead to presumption that practice for payment of rent after long intervals has developed. (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Sind Rented Premises Ordinance (XVII of 1979), S. 21 Default in payment of rent‑‑Payment of rent contrary to agree ment at intervals unless otherwise proved, held, may lead to pre sumption that tenant has been defaulter‑Acceptance of accumu lated rent by landlord without any objection, held further, does not amount to alteration of terms and conditions of written agree ment. 1980 S C M R 506 ; 1980 S C M R 601 and P L D 1981 Kar. 164 rel. (e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Sind Rented Premises Ordinance (XVII of 1979), S. 21 Ejectment‑Discretion of Rent Controller‑Eviction of tenant although discretionary with Rent Controller yet discretion, held, .t*t should not be exercised arbitrarily or capriciously‑Facts and circumstances, if not justifying a clear default, discretion to be exercised in favour of tenant. P L D 1965 Lab. 23 and P L D 1972 Kar. 22 ref. 1982CLC219rel. (f ) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑ ‑‑ S. 13‑Sind Rented Premises Ordinance (XVII of 1979), S. 21 Ejectment‑Default in payment of rent‑Concurrent finding of Courts below that tenant committed default‑Finding neither based on no evidence nor some evidence excluded from consideration Ejectment order upheld. One Habibur Rehman, the predecessor‑in‑interest of the appellant was tenant of the respondent in respect of a shop bearing No. 1 on plot No. 315/2‑G situated at PECHS, Karachi. This tenancy was created under an agreement, dated 24th December; 1960 which inter alia pro vided that the appellant shall pay the monthly rent of Rs. 125 on the 5th of every calendar month. The respondent filed application for eject ment on the grounds that : (1) the appellant has committed default in payment of rent from 1st April, 0972 (2) he has sublet the premises without the consent of the respondent, and (3) he has made unauthorised structural change in the shop. The learned Controller granted the appli cation go $rounds of default and subletting. The appellant filed appeal which was dismissed by the impugned order. The learned Appellate Court held that the appellant has committed default but its finding on question of subletting was in the negative. Therefore there is a con current finding that the appellant has committed default. The learned counsel for the appellant has contended that both the courts below have ignored the statement of appellant's witnesses Nos. 1 and 3 the circumstances in which default was committed. He further contended that the default was created by the respondent as he had asked the appellant not to pay the rent lilt he comes back from Hyderabad. In this regard reference has been made to appellant's statement who stated that the rent had accumulated because the respondent had asked to pay the rent when he returns back from Hyderabad where he had gone to work as contractor. When the respondent returned back he refused to accept rent and demanded higher rent at Rs. 175 per month. On respon dent's refusal rent from April, 1972 to October, 1972 was remitted by money order in October, 1972 which was refused. Thereafter rent was deposited by appellant in Court on 28th October, 1972. The learned counsel has contended that this part )f the statement has not been challenged in cross‑examination and therefore it should have been accept ed. In the cross‑examination the appellant stated that he had paid rent up to March, 1972 after which the respondent started demanding higher rent. According to his statement such a demand was made in April, or May, 1972. He further stated that after 4 or 6 months after demanding enhanced rent he sent the money order. This contradicts the earlier statement. From the statement it seems that up to March, 1972 there was no dispute and demand for higher rent was made in April, or May, 1972. If the‑ respondent, had gone away and came back, according to the appellant, in October when he offered to pay the entire rent from April to September, then how could the respondent demand higher rent in April or May as during this period the respondent according to the appellant, had gone out of Karachi. If the later statement is accepted then it seems that the respondent had not gone to Hyderabad in April and May but the appellant did not pay the rent. In the face of this contradiction the contention of the learned counsel cannot be sustained. If there are contradictions in the statement of a witness then it loses its authenticity and merely because such statement has not been challenged in cross‑examination will not make it worthy of credit. Contradictory statement even if not challenged in cross‑examination cannot be accepted. The learned counsel for the appellant contended that a practice had developed between the parties whereby the respondent was collecting rent after a lapse of several months and therefore payment of rent from April to September in October did not amount to wilful default. In this regard Mr. Khawaja Mahfoozur Rehman the learned counsel for the respondent has invited my attention to the pleadings of the parties. In paragraph one of the ejectment applicant it was pleaded that the appel lant is a tenant on a monthly rent of Rs.

125. This was admitted by the appellant. In paragraph 2 of the application the respondent alleged that the appellant is a habitual defaulter and is in arrear of rent from April, 1972. In reply the appellant denied and stated that he has always been "tendering the rent due and payable whenever it became due and/or collected by the applicant" (respondent). In the entire written statement no plea has been raised that a practice as alleged by the learned counsel had developed between the parties under which rent was paid after several months. The learned counsel contended that this pleas has been impliedly raised. A party pleading practice or custom should specifi cally plead it giving sufficient particulars of such practice or custom so that the other side may not be taken by surprise, and proper issue may be framed in this regard and parties may have full opportunity to lean " evidence on it. In the present case this plea of practice is completely missing and therefore at this stage such a plea cannot be allowed to be raised. However, even if this plea is to be considered it is completely contradicted by the rent receipts filed by the appellant as large number of receipts are for payment of rent for one month. There are some receipts in which lump sum rent for several months has been paid. In this state of affairs it is hard to believe that any practice as alleged by the appellant bad developed between the parties. If by con duct of parties any practice has developed then it should be consistent and continuous, duly accepted and recognised by both the parties. Where sometimes rent is paid for three months and sometimes for six months it cannot lead to the presumption that a practice for payment of rent after long intervals has developed. Payment of rent contrary to agreement at irregular intervals unless otherwise proved may lead to presumption that the tenant has been a defaulter. If a landlord accepts accumulated renal without any objection then it does not amount to alteration of terms and conditions of written agreement. Reference can be made to 1980 S C M RI 506, 1980 S C M R 601 and P L D 1981 Kar.

164. The learned counsel for the appellant further contended that in the facts and circumstances of the case the appellant has not wilfully defaulted as it was caused due to the conduct of the respondent and therefore the Controller should have exercised his discretion in favour of the appellant. In this regard the learned counsel has referred to P L D 1965 Lah. 23 and P L D 1972 Kar.

22. Under section 13(2) of Urban Rent Restriction Ordinance the Controller "may" eject a tenant on ground of non‑payment of rent. Therefore the eviction of tenant on ground is a matter of discretion with the Controller. But such discretion g should not be exercised arbitrarily or capriciously. If the facts anti circumstances do not justify a clear default the discretion should be exercised in favour of the tenant. Reference has been to 1982 C L C 21A where the landlord was avoiding to receive rent and therefore in such circumstances the default was not treated as wilful default and discretion was exercised in refusing to eject the tenant. In the facts and circum stances of the present case there could be no justification for exercising discretion in favour of the appellant. Both the learned Courts below have come to a concurrent finding that the appellant has defaulted in payment of rent. The learner counsel for the appellant has not been able to show that, such finding that not based on any evidence or that any evidence has been excluded from consideration. The appeal is therefore dismissed with no order as to costs. The appellant shall handover vacant possession of the dispute premises to the respondent by 31st December, 1983. M. Y, H . Appeal dismissed.