1986 PLP 1959 (CLC)

Alima Ahmed's case P L D 1984 S C 32; Termizi's case 1980 SCMR 601; 1982 C L C 217 and 1985 C L C 21 ref. Azhar Ali Siddiqui for Appellant. Abdul Matin for Respondent. Date of hearing: 9th September, 1985. The appellant filed an application for ejectment against the respondent in respect of a shop in Building No. 24/W. 0‑6/1, M. A. Jinnah Road, Karachi, on the ground that he has committed default in payment of rent from first July, 1980. In the written statement it was pleaded that the rent was collected by one Khwaja Nazir on behalf of the appellant as and when required by him through cheque. The details of the cheques were given from which it is clear that rent had been paid upto June 1979 periodically from time to time. It was pleaded that in July, 1980 on account of the death of the husband of the appellant Khwaja Nazir left for Lahore and did not collect the rent as usual. It was pleaded that respondent has never committed any default as he was always ready and willing to pay the rent and that the appellant has practised deception upon the respondent because the shop is situated on Bunder Road (M. A. Jinnah Road) having very high and lucrative good will. The appellant examined her attorney Mazhar Muhammad Pehlwan who stated that the respondent is a persistent defaulter and has not paid the rent from 1‑7‑‑1980. It was also stated that he has never paid or offered the rent nor it was refused. He was in the habit to pay accumulated rent after many months. The respondent filed his affidavit of evidence and repeated the same facts which were stated in the written statement. The learned Controller by the impugned order dismissed the application holding that there was a practice between the parties to pay the rent in lump sum and an impression had been created in the mind of the respondent that the rent was to be paid after periodical intervals and, therefore, no wilful default has been committed. Mr. Azhar Ali Siddiqui the learned counsel for the appellant has assailed the finding of the learned Controller on the ground that no practice has been established and moreover under law it is the duty of the tenant to pay the rent monthly and that there is no evidence on record to show that the obligation has been discharged by the respondent. The main controversy between the parties is whether there was any practice between the parties to pay the rent after periodical interval and whether in view of practice, if any, discretion can be exercised in favour of the respondent. So far the practice is concerned it can be established by clear cogent and convincing evidence that the rent has been paid regularly in uniform manner. Irregular payments from time to time in which the period may differ can hardly establish any valid practice. Even if practice has been established (which has not been proved in this particular case) in view of several authorities' of the Supreme Court particularly Alima Ahmed's case P L D 1984 S C' 32 it is difficult to hold that such practice can change the statutory obligation of the tenant to pay the rent every month regularly. Mr. Azhar Ali Siddique the learned counsel has relied on Termizi's case 1980 S C , M R 601 and Alima Ahmed's case P L D 1984 S C

32. On the other hand Mr. Abdul Matin, the learned counsel for the respondent has relied on 1982 C L C

217. In my view the observations in this case at page 218 (Placitum c) relied upon by the appellant stands overruled by the judgment of the Supreme Court in Alima Ahmed's case. The learned counsel also referred to a judgment reported in 1985 CLC

21. This judgment is hardly of any assistance to the appellant because, firstly the facts of this case are completely different from the facts of the present case. Secondly, some material observations in this case are based on presumption about facts which in law requires strict proof, and thirdly, the principles laid down by the Supreme Court in Alima Ahmed's case are binding and cannot be departed from on the basis of extraneous considerations and presumptions. Mr. Abdul Matin, the learned counsel for the respondent has contended that the rent was collected by one Khwaja Nazir who has not been examined. It is correct but this does not in any manner adversely reflect upon the merits of the case because most of the facts are admitted by both the parties. In cross‑examination it has come that Khawaja Nazir resided adjacent to the shop of the respondent and therefore, even if he had gone to Lahore on account of the demise of the husband of the appellant there is nothing on record to show how long he stayed back and whether he returned back after five months. During this time the respondent could have either sent the rent by money order or deposited in Court. No such step was taken by him. Therefore the default is clearly established. The appeal is allowed and the order of the learned Controller is set aside. As the premises is situated in a commercial area where the respondent is carrying business, I will grant him one year time to hand over vacant possession to the appella nt. H.B.T.???????????????????????? Appeal allowed.