1986 PLP 93 (CLC)

The facts giving rise to this case are that the appellant Shaikh Muhammad Munir is occupying a residential Flat No. 44 on second floor of Islam Manzil, Muhammad Shah Street, Jodia Bazar, Karachi as tenant of the respondent Muhammad Ilyas at monthly rental of Its . 12.96. As the appellant made default in payment of rent continuously for three months (October to December, 1973), the respondent filed ejectment application seeking his ejectment from the demised premises. Such ejectment application was opposed by the appellant who denied that he was defaulter liable to ejectment. According to the stand taken by him, although the respondent used to collect rent in lump sum for several months, he did not turn up to collect the same for the months of default. However, the appellant was always willing and ready to make the payment. After considering the evidence including the documents produced by the parties, the learned Rent Controller by his order, dated 5‑10‑1985 allowed the application directing the appellant to hand over the vacant possession to the respondent within sixty days of the order. Aggrieved by this order of his eviction, the appellant has preferred this appeal. After going through the relevant record and also hearing the arguments of the learned counsel for the parties, the appeal was dismissed with no order as to costs by short order, dated 27‑10‑1985. Following are the reasons in support of the said short order. Admittedly the default period comprised three months namely October, November and December, 1973. It is also admitted on behalf of the appellant that no rent was paid by him for these months. The only argument advanced by the learned counsel for the appellant was that non‑payment was due to the fact that the appellant was under the impression that respondent would himself come and collect the rent for the said months, as he had been doing previously. Elaborating his argument the learned counsel submitted that as per established practice between the parties, the respondent used to collect rent in lump sum for two to four months. In this connection he referred to several receipts which no doubt indicate that the respondent had accepted rent on some occasions for more than one month in lump sum. On the other hand repelling the above argument the learned counsel for the respondent relied upon as many as 16 receipts indicating that the appellant used to pay rent regularly every month. The argument of the learned counsel for the respondent was that assuming that the respondent had accepted rent for two to four months in lump sum on some occasions that by itself was no reason for the appellant to withhold regular payment of rent every month. He contended that it was the duty of the appellant to ensure that rent was paid to the respondent regularly every month. In support of his arguments he placed reliance on Abdul Rashid v. Saleh Muhammad 1980 S C M R 506 wherein it was held: ‑ "It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice, which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month." Another case relied upon in the same context was of Messrs Tar Muhammad Janoo & Co. v. Taherali and others 1981 S C M R 93 wherein the Supreme Court expressed its views in the following terms:‑ "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non‑payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had givon rise to n practice of irregular payment of rent." The third case referred to in the same connection is reported as Haji Muhammad Qasim v. Maherban Ali 1983 S C M R 1205 wherein it was observed as follows:‑ 11. that the mere fact that the landlord accepts the rent from a tenant periodically does not mean that he does not desire or expect it to be paid in time as required by the Urban Rent Restriction Ordinance." As against the above Supreme Court authorities, the learned counsel for the appellant relied upon Single Bench authority of this Court reported as Asian Traders v. Messrs Lakhany Brothers 1985 CLC

21. This authority is obviously not helpful to the appellant', counsel for two reasons: firstly the facts of the reported case are distinguishable from those of the case in hand inasmuch as that in the reported case the landlord was not able to prove even a single instance of monthly payment of rent whereas in the instant case the respondent/ A landlord has produced a number of receipts indicating monthly payments of rent; secondly in view of the law laid down by the Supreme Court in the cases referred to above, the so‑called practice established between the parties of paying the rent irregularly after certain intervals has absolutely no force in the eye of law and as such it cannot be advanced as an argument to frustrate the landlord's case for eviction of the tenant based on the ground of default in payment of rent. As has been ruled by the Supreme Court in above reported cases payment of rent has got to be made strictly in accordance with the requirement of the law. No kind of practice even if evolved with mutual consent of the parties can override the relevant provision of the law. In other words if the parties follow any practice in regard to payment of rent, the tenant cannot be permitted to set up such practice B as defence in order to show that he is no default. As is evident from above‑mentioned Supreme Court cases, it has been repeatedly held that if the landlord accepts the rent at irregular intervals, he thereby displays his grace and decency which under no circumstances can be misunderstood as a licence to the tenant to continue making defaults. or use such concessions against the landlord himself. In view of above discussion, since the appellant has admittedly, not paid the rent for three months of October, November and December, 1973, such clear default committed by him cannot be condoned merely because the respondent did not himself go to him, as per previous practice to collect the rent for the said months and the appellant was under the impression that he was not to pay the rent until the respondent himself approached him for payment. Thus, the default having been established against the appellant, he is liable to eviction. Consequently the order of his eviction passed by the learned Rent Controller was upheld and his appeal was dismissed. A . A . Appeal dismissed.