1986 PLP 2858 (CLC)

‑‑‑S. 15‑‑Ejectment of tenant‑‑Discretion, exercise of‑‑Requirements‑ Fact that tenant had been negligent to such an extent that he fell into arrears of rent for many months, held, was so gross that no judicial mind would be prepared to show indulgence of discretion in his favour in such case. Qadir Bux Memon for Appellant. Respondent in person. Date of hearing: 14th April, 1986. Appellant has challenged the order of Rent Controller, Shikarpur, dated 12‑11‑1984 directing that he should hand over the vacant possession of the premises to the respondent within 60 days. According to the respondent, the appellant is a tenant of shop in dispute which is owned by the respondent. He has alleged that the appellant is a habitual defaulter. On 31‑1‑1982 he was in default of payment of rent for 30 months and therefore he sent money order for Rs.495 after a notice was served upon him by the respondent to vacate the shop. Since the default was for a very long period, the respondent decided not to waive the same and refused the money orders. The respondent has further taken the plea that he requires the shop for construction of staircase of upper storey of a house. The petition was contested by the appellant, who challenged its maintainability on the ground that the other heirs of his father Gul Muhammad, who was original tenant were not joined as a party. He also denied that he was a defaulter. He alleged that he was regularly paying the rent to the respondent till the respondent shifted from Shikarpur to Karachi. After shifting to Karachi, the respondent asked the appellant to pay the rent in lump sum whenever he visited Shikarpur, hence the rent for a number of months was tendered to the respondent and on his refusal sent to him by money order, which was also refused as shown above. The appellant thereafter sent a number of money orders to the respondent but all of them were refused. He also denied that the shop was required for bona fide personal use and has alleged that this plea has been taken only to get it vacated as he was not agreeable to enhance the rent. ‑On the pleadings of the parties, the learned Controller took up the issues regarding the maintainability of the petition, requirement of the premises for bona fide personal use and the default in payment of rent. He decided the issues as to the maintainability of petition and the default in favour of the respondent and the requirement of the premises for bona fide personal use against the respondent. I have heard Mr. Qadir Bux Memon, Advocate for appellant at length and Mr. Muhammad Sachal, Advocate, the respondent in person. So far as the maintainability of the petition is concerned, the learned Controller has dealt with this point at length and has rightly pointed out that only those heirs of the tenant who are actually in possession of the disputed premises are to be treated as tenants an6& not those heirs who are not occupying the premises. His finding that only the appellant is in possession and occupation of the shop is supported by the evidence on record as well as the admission of the appellant himself. Hence this issue does not require any interference: On the issue of default, it may be pointed out that it is admitted by the appellant that on 31‑1‑1982 he sent a money order of the amount of Rs.495. He admits that the rent of all these months was due to the respondent from him. His explanation for accumulation of arrears of all these periods is that the respondent had requested him to pay the rent to him in lump sum, after his shifting to Karachi, whenever he came to Shikarpur. The respondent has denied to have made such request. The appellant has not produced any documentary evidence to show that any such request was made. It is a settled law that the tenant has to seek the landlord and to pay him the rent wherever he resides. The tenant cannot absolve himself of the responsibility of paying the rent every month as agreed initially in writing by taking the plea that he was verbally asked by the landlord to pay the rent in lump sum and after long intervals. By now it is a settled law thai when the terms of an agreement are reduced into the writing the same can be changed only through a subsequent agreement reduced into writing. Reference was made to the decision of Messrs Tur Muhammad Janoo a Co. v . Taherali and others reported in 1981 S C M R 93, wherein it was held as follows:‑‑ "It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. 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 sometime 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." Reference is also invited to another ruling reported in the case of Bedo Mal and 5 others v. Illahi Bakhsh reported in 1984 C L C

640. Munawar Ali Khan, J held as follows:‑‑ "This shows that the accumulated rent was sometimes accepted on the respondent's behalf but it was neither by any arrangement between the parties nor it was the, choice of the respondent. It was accepted with obvious reluctance on account of the appellant's irregularity in making the payment. Thus, the Rent ,Controller has come to right conclusion on this point." The date of the first money order in the present case was 31‑1‑1982. This would mean that the default in payment of rent was within three years prior to the filing of ejectment application. The respondent was within his right to refuse this Money Order tendering that rent and come to the Court of Controller with a request for ejectment on the ground of that default. His acceptance thereof would have amounted to waiver of the default. Reference in this connection may be made to the case of Mehmood Ahmed v. Mrs. Qamar Anwar Sheikh and another reported in 1980 CLC &64 decided by Zaffar Hussain Mirza, J (as he then was) where it has been held as follows:‑‑ "In the provision under examination the Legislature clearly provided that in case it is found that the tenant has failed to pay or tender rent "within fifteen days after the expiry of the time fixed in the agreement of tenancy with landlord, or in the absence of any such agreement, within sixty days from the period for which the rent is payable," he is exposed to the liability of being ejected by the Controller. The forgoing words of the subsection put into inverted commas clearly negate the interpretation put forward by the learned counsel. If the intention of the legislature was to confine the ground of non‑payment of rent for ejectment only to cases where the tenant continues to remain in arrears, nothing prevented it from employing such clear language. Reading the subsection in its entire context, therefore, I am of the opinion that once the tenant has committed default by not paying or tendering rent within the prescribed period he would be liable to be ejected notwithstanding subsequent payment of the arrears of rent unless he can make out a case of waiver on the part of landlord. I, therefore, find no force in the submission of the counsel." I am, therefore, satisfied that the finding of the Controller that the appellant had defaulted in payment of rent was correct and does b not call for any interference. Mr. Qadir Bux Memon next contended that the ejectment on the ground of default in payment of rent was discretionary and, therefore, requested that the discretion should be exercised in favour of tenant. He was unable to show the circumstances in which the discretion could be exercised in his favour. The fact that the tenant had been negligent to such an extent that he fell into arrears of rent of so many months is so gross that no judicial mind would be prepared to show indulgence in such a case. I, therefore, do not find any reason to interfere with the findings of the learned Controller and dismiss the appeal. A.A. Appeal dismissed.