1980 PLP 912 (CLC)

3. The respondent challenged the decision of the learned Rent Controller in appeal and by the impugned judgment the learned II Addi tional District Judge, Karachi allowing the appeal set aside the order of ejectment vide his judgment dated 23rd November, 1972. In upsetting the findings of the learned Rent Controller, the learned Additional District Judge held the view that although the respondent admittedly was in default in the payment of rent for the aforesaid 8 months, the fact that on seven previous occasions the appellant had been shown to have accepted the rent for several months in lump sum, was such conduct on his part which clearly showed "that the mode of payment was not restrict ed to the monthly payment of the rent but it was an implied agreement between the parties that the rent could be paid in an accumulated form". On this reasoning the learned Additional District Judge reached the conclusion that the respondent was entitled to the exercise of discretion in his favour for being relieved of forfeiture of the tenancy.

4. The appellant now seeks to challenge the decision of the learned Additional District Judge in this second appeal. 5. 1 have heard Mr. Muhammad Mustafa and Mr. Ashiq Ali Abdullah, learned counsel appearing for the parties to this appeal respectively.

6. It is contended on behalf of the appellant that the plea of periodical payments as an implied agreement as to the mode of payment of rents was not raised before the learned Rent Controller and could, therefore, not be urged for the first time at the appellate stage. It was further urged that the exercise of discretion by the learned Additional District Judge was not based on sound judicial principles and was contrary to the law declared by their Lordships of the Superior Courts on the subject. On the other hand, resisting the aforesaid contentions it was urged on behalf of the respondent that the discretion was duly exercised on the facts and circumstances of this case and particularly in view of the admitted documentary evidence consisting of the seven receipts of rent prior to the ejectment proceedings.

7. As the only contention urged before me relates to the exercise of discretion on the basis of the receipts for the past months, it will be advantageous to set out below the particulars of these payments :- (i) for April to September, 1952 dated 7th September, 1952. (ii) for May to August 1964 dated 7th September, 1964. (iii) for July to September, 1965 dated 12th August 1966. (iv) for October and November 1965 dated 9th September 1966. (v) for February and March 1966 dated 9th November, 1966. 914 (vi) for June to September 1966 dated 11th February 1967. (vii) for October 1966 to January 1967 dated 11th April, 1967.

8. A perusal of these particulars shows that the respondent had paid rents in the past not on any particular pattern but with irregular intervals at different occasions, sometimes for two months and sometimes for 3, 4 and 6 months at one time. Additionally it is also clear that the receipts show that the respondent paid the rents after remaining in arrears for long periods. For instance the rent for the months of February and March 1966 was paid by him on 9th November 1966 after nearly 7 months. The rent for the months of June to September 1966 was paid on 11th February 1967. This evidence certainly does not show that the appellant used to collect the rent in lump sum for several months, for, in that case he would have collected all the arrears of rents on the date when the payment was made. But the evidence indicates that past arrears for some months only were paid after the delay of a further period for which the rents appeared to have been paid. I am, therefore, unable to see how the aforesaid evidence establishes an implied agreement between the parties for payment of rent with intervals. The best that the aforesaid evidence indicates is that in the past the appellant generously exonerated the defaults in the payment of rents on the part of the respondent and A accepted them on occasions after they remained in arrears for long periods. Such being the case the default committed by the respondent which was made the foundation of the present ejectment proceedings, cannot be wiped off mately because on the previous occasions the appellant abstained from resorting to legal action.

9. Be that as it may, the respondent cannot be allowed to take up plea in the arguments which was neither set up in the pleadings for adverted to in the evidence. There is nothing in the evidence of the, respondent to the effect that there was an implied arrangement between the parties for the payment of rents in lump sum with intervals. On the contrary the allegation of the respondent in his evidence is that after February 1967 although he offered the rent to the appellant the latter declined to accept. This stand of the respondent is wholly inconsistent with the plea that the rents for the specified period were not paid in view of the implied arrangement between the parties. The learned Rent Controller had rightly pointed out that the respondent was aware of the mode of payment and the procedure provided for the contingency where th6 landlord refuses to accept the rent, as in the past admittedly he had despatched rents by money orders whereas in the present case no such procedure was adopted. There was, therefore, no justification for hold ing that the parties had an implied agreement as alleged.

10. Mr. Ashiq Ali Abdullah invited my attention to paragraph 3 of the written statement and sought to, argue that the plea now being urged was raised in the written statemet. However, the bare perusal of the paragraph in question makes out that no such plea was raised.

11. The learned Additional District Judge had based the exercise of his discretion in favour of the respondent entirely on his finding that there existed between the parties the implied agreement for payment of rents with intervals. In the view that I have taken, therefore, the entire basis for the, exorcise of discretion disappears.

12. Before parting with this case I might refer to the case of Sajjad Ali Khan v. Pir Bux G. Mahar (P L D 1972 Kar. 220) on which strong reliance was placed on behalf of the respondent in relation to the exercise of discretion where it appeared in evidence that the landlord was in the habit of accepting the arrears of rent periodically from the tenant in lump sum. If the afore said decision is being pressed into service in support of the proposition that this is a rule of law, with utmost regard to the learned Judge I am, not persuaded to hold that in every case where the landlord is shown to, have accepted rents in lump sum in the past, the exercise of discretion follows as a matter of course. In this connection I might refer to later decision of this Court reported as Mohammed Alimullah v. Ziaall Islam (P L D 1973 Kar. 56) where-Dorab Patel, J. observed :- "However, because merely the tenant has on a few occasions been allowed to pay rent `at intervals of time', this cannot possibly entitle him to invoke discretion under section

13. After all, if he is allowed to fall in arrears, this is an indulgence on the landlord's part and the recipient of an indul gence cannot claim any right or equity to its continuance." Having regard to the circumstances of this case, I have no doubt in my mind that the respondent is not entitled to the discretion vesting in the Controller under section 13 of the Urban Rent Restriction Ordinance.

13. In the result, I allow this appeal, set aside the judgment and order of the learned Additional District Judge and restore the order of ejectment passed by the learned Rent Controller. The respondent shall have four months for handing over the possession to the appellant. M. Y. M. Appeal allowed.