1980 PLP 506 (SCMR)

Date of hearing : 19th January, 1980. ASLAM RIAZ HUSSAIN, J.‑This petition by Abdul Rashid is directed against the impugned judgment dated 8‑9‑1979 of the Sind High Court whereby a learned Single Judge of that Court dismissed the petitioner's second appeal in a rent case.

2. The spatter relates to a shop situated in building No. N. P. 562 Kundan Street, Khajoor Bazar, Karachi. Saleh Muhammad respondent has leased this shop to Abdul Rashid petitioner through an agreement, dated 7‑2‑1970 at a monthly rent of Rs. 100, which was subsequently raised to Rs. 125 per month.

3. On 18‑9‑73 Saleh Muhammad filed an ejectment petition against Abdul Rashid petitioner/tenant on the ground of non‑payment of rent for a period of 4 months from May, 1973 to August, 1973 and also for bona fide personal need. In his written statement the tenant did not deny the non‑payment of rent but he pleaded that there was general practice between the parties according to which the landlord collected the rent periodically after about 3/4 months. But when the landlord failed either to collect the rent personally or send some one else to do so, he tendered the rent through a money order but the landlord refused to accept the same. He also said that the plea of the respondent regarding requirement of the shop for personal need was not bona fide because he had another shop wherein he could carry on his business.

4. The learned Rent Controller by his judgment dated 10‑11‑76 held that there was no default in payment of rent but held that the plea of bona fide requirement for personal need stood proved and ordered the tenant to hand over vacant possession of the premises to the landlord within 15 days of his order. The tenant as well as the landlord filed appeals before the District Judge. The learned District Judge accepted the appeal of Saleh Muhammad, the landlord but rejected that of Abdul Rashid, tenant. Abdul Rashid thereupon filed an S.A.O. before the Sind High Court but the same was dismissed vide the impugned judgment dated 8‑9‑1979. Hence the present petition.

5. The learned counsel for the petitioner reiterated the same grounds, which he had urged before the High Court as regards the plea of personal requirement of the shop by the landlord. He submitted that the averment of the landlord is not correct inasmuch as he had another shop in the same locality and the ground set up by him was not in good faith. But we notice that with respect to this contention the landlord had appeared and deposed before the Rent Controller that he bad no other shop except the shop in dispute and that he used to sit at the grocery shop of his son for a couple of hours every day. But his son had asked him to set up his own separate business. He has stated further that it is for this reason that he wants this shop to be vacated. Landlord's son Muhammad Amin also appeared and supported the above‑noted assertion of his father saying that he had advised him to start his own business as the family cannot pull on with the income from one shop only.

6. Evidently this contention relates to a question of fair and all the three armed Courts below have believed the evidence led by the respondent/landlord and held that he a successfully established that the shop in question was needed by him for bona fide personal use. We see no reason to re‑open this question of fact re‑appraise the relevant evidence and go into the correctness or otherwise of the said finding of fact at this stage.

7. With regard to the question of default in the payment of rent, as already mentioned, the plea taken up by the petitioner/tenant is that 'a practice had arisen between him and the landlord that the rent would be paid periodically at intervals of 3 or 4 months. In support of this contention he produced some receipts issued in his favour by the landlord or his sons sowing that on several occasions rent had been paid for 2 or 3 months at a time. It was contended further on his behalf that In view of this practice he had not tendered the rent for the 4 months In question in the hope that either the landlord or one of his sons will come to collect it and when no one came to collect it, he sent the rent to the landlord through a money‑order which was not accepted by him.

8. This plea is based upon a misconception with regard to the legal position on the point. It has been held time and Main that in such cases the parties cannot contract themselves out of the provision of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither and can plead a practice, which is contrary to the said law however, to mere act at a and lord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmad Khan 1971 S C M R 598 that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent.

9. In Muhammad Hasan & Co. v. Mahmood Ahmad' Khan 1971 S C M R 598 where the tenant had taken up same position, namely that a practice has grown up to pay rent in lump sum after certain interval it was observed by this Court inter alia that "in any event such a practice was contrary to section 13 of the West Pakistan Urban Rent Restriction Ordinance, and therefore the former could not overrule the law".

10. In Messrs Tar Muhammad Janoo & Co. v. Taherali and others (Civil Petition No. K/16 of 1979) where the tenant/petitioner had raised the same contention as in the present case and. while dismissing the petition this Court observed as follows: ‑ "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 m 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 his litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having 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 given rise to a practice of irregular payment of rent."

11. In view of the above discussion we feel that the petition has no merit whatsoever and the same is, consequently dismissed. Petition dismissed.