1983 PLP 1517 (CLC)

Mst. Saeeda Khanum widow of Sheikh Gulzar Ali is the owner of double storey bungalow known as Al‑Noor on Plot No. I I‑CJF, situated at Clifton Karachi; The appellant herein is tenant of the respondent in respect of fiat 'C' in the aforesaid bungalow which was leased out furnished at total monthly rent of Rs. 530 excluding taxes and charges through a rent agreement in writing executed on behalf of the respondent by her son and attorney Shaikh Azhar Mehmood on 30th October, 1971..

2. On 9th March, 1974 the respondent through her son and attorney Sheikh Azhar Mehmood filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of the Rent Controller alleging that the appellant who was negligent and irregular in the payment of rent and who made arbitrary deductions from the rent without permission and consent of the landlady, had committed default in payment of monthly rent from the month of September, 1973 to February, 1974 and his eviction from the premises and further his handing over the possession of the same together with fittings, fixtures and furniture.

3. The appellant filed written statement in which it was contended that the rent of the demised premises was Rs. 330 per month inclusive of all the K.M.C. and property taxes and the amount of rent claimed at Rs. 530 in cluded the amount of hire charges of furniture etc., which the respondent was not entitled to claim in the proceedings. !t was denied by the appellant that arbitrary deductions from the rent had been made without prior per mission or consent of the landlady and it was asserted that the deductions whenever made had been always with the permission, consent and knowledge of the landlady as the rent of the demised premises was always paid to her. The appellant denied that there was any default in the payment of monthly rent.

4. On the above pleadings of the parties the Rent Controller framed the following issues:‑‑ (1) Whether the opponent has committed default in the payment of rent. (2) Whether the applicant used to accept the rent in lump sum from the opponent and whether it was the practice throughout ? if so, its effects. (3) What should the decree be?

5. In the proceedings Sheikh Azhar Mehmood, son and attorney of the respondent gave evidence and produced the lease agreement according to which rent was payable by 5th of each month in advance. He also stated that the appellant had committed default in the payment of rent from September, 1973 to February, 1974. The witness also stated that the appellant used to send covering letters with payment of rent which be pro duced in evidence. He also produced legal notice given to the appellant. On the other hand, the appellant gave evidence on his own behalf. The learned Rent Controller considered the evidence on record specially with regard to the practice of payment of rent in lump sum by the appellant as a matter of practise and gave the finding that the appellant had committed default. He, therefore, ordered the appellant to hand over vacant posses sion of the premises to the respondent within one month of the date of his order.

6. The appellant filed first appeal which was incidentally heard by the 3rd Additional District Judge, Karachi who after considering the evidence on record and hearing the arguments of the counsel for the parties confirmed the order dated 9th May, 1978 and dismissed the appeal. The learned Ist Appellate Court directed the appellant to hand over vacant possession of the premises within 30 days of the order which was passed on 2nd April, 1980. It is against the concurrent findings of the learned Rent Controller and the learned, 1st Appellate Court that the instant second appeal has been filed.

7. It is contended by Mr. S. A. Waheed, the learned counsel for the appellant, (i) that the impugned orders of the lower Courts are not legal and proper inasmuch as the finding with regard to default in the payment of rent is based on the tenancy agreement which was initially for a period of I1 months and had expired ; and (ii) that there was practice of payment of rent for particular period in lump sum which had been accepted by the res pondent/landlady and, therefore, the lower Courts should have exercised their discretion in favour of the appellant.

8. With regard to contentions referred to above, it is true that since the tenancy agreement was only for 11 months, after expiry thereof, the appellant became statutory tenant and the right and obligations of the parties in respect of rent had to be regulated in terms of section 13(2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

9. However, it is quite clear from the evidence on record and also from the concurrent findings of the two Courts below that firstly there was no practice of lump sum payment of rent and secondly that there was default committed by the appellant in the payment of rent. The covering letters which were sent with the cheques with date for payment of rent by the appellant show that the rent for the month of February, 1972 was paid on 18th March, 1972 and the rent for the month of September, 1973 was paid on 20th February, 1974. There is also evidence on record to show that the rent for the month of October, 1973 was paid on 28th March, 1974. The evidence in the shape of correspondence between the parties shows that in spite of reminders and protests by the landlady, the appellant did not clear arrears of rent. It is also apparent from the aforesaid details about payment of rent that the rent of particular month was paid after delay of 6 months and it was not lump sum payment of rent for a number of months together. The learned Controller and the learned 1st Appellate Court were, therefore, justified in finding that the appellant had committed default in. the payment of rent.

10. In Abdul Rashid v. Saleh Muhammad (1980 S C M R 506), (a decision of the Supreme Court) it was held that parties cannot contract themselves out of pro visions of law nor can any party plead a practice contrary to law and, there fore, the tenant was required to pay rent by 15th of every month It was further observed as under :‑ . "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 paid 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." In view of the principle stated in the aforesaid decision of the Supreme Court, it is very clear that the appellant being a statutory tenant had to pay or tender rent in accordance with the provisions of law which he failed to do.

11. After having dealt with the appeal on merits of the case by appre ciating the evidence on record, it may be observed that Mr. Muneer Ahmed Malik, the learned counsel for the respondent had raised the contention that there were concurrent findings on the fact with regard to default committed by the appellant which cannot be set aside in the second appeal. He relied upon a decision of this Court in Hasan Khan v. Mrs. Munawar Begum (P L D 1976 Kar. 832) wherein it was held that the question of default being purely a question of fact it cannot be reviewed in second appeal except when there is l no evidence to support the finding. In the instant case as already discussed above, there is full evidence to support the concurrent finding. The decision referred to was based on the observations of the Supreme Court reported in P L D 1968 S C 140 to the effect that concurrent findings of. fact in civil matters are not to be interfered with unless the finding is shown to be base on no evidence or upon the min‑reading of the evidence.

12. In view of the circumstances discussed above, there is no weigh in the appeal which is accordingly dismissed however, with no order as to cost. The appellant is hereby directed to hand over vacant possession of the premises to the respondent within one month of the date of this order. M.Y.M. Appeal dismissed