1988 MLD 819 (PLP)

This is a Second Appeal directed against the orders of Rent Controller, Karachi dated 26‑1‑1977 and the consequent order in appeal dated 28‑2‑1979 by Additional District Judge, Karachi. The dispute is in respect of shop premises numbers 24 and 25 on Plot NOSR‑3/20 Serai Quarters, Karachi. The appellant is the tenant of those premises and the respondent is the landlord of the same. The respondent had filed ejectment application for eviction of the appellant on the ground that he had failed to pay rent for the period 1‑4‑1.974 to 31‑7‑1975. The application was resisted by the appellant on the ground that there was a practice for collection of the rent after interval of 6 months or so. Issue was framed whether there had been a default in the payment of rent. The respondent had examined his rent collector S.M. Yahya who had proved the non‑payment of the rent by the appellant for the relevant period. He also stated that he was rent collector of applicant Ibrahim. In cross‑examination he admitted that always the opponent used to pay rent for 6 or 8 months irregularly. It is further stated that always he used to go to collect rent and issued rent receipts. He denied that Ibrahim was not the Attorney of the landlord. He further denied that default was due to his not going to collect rent during those months. On behalf of the appellant Sarfrazuddin, their Manager, was examined,' who has stated that the rent collector of the applicant used to collect the rent not every month but after every 4th or 5th months. He produced four receipts Exhs.7, 8, 9 and

10. In cross‑examination he admitted that he had not brought the latest receipt of rent. He denied that he had not brought other receipts because they were of one month each. He also produced correspondence between the parties as Exhs. 12, 13, 14, 15 and

16. Exh.7 shows payment of rent of one shop for .5 months of June to October, 1973. The same was dated 16‑11‑1973 and it bears the name of Ibrahim A. Manpori as the person who has issued the receipt. Similarly Exh.8 is receipt of rent of 5 months for the other shop and issued in the name of Ibrahim A. Manpori. Exhs. 9 and 10 are receipts of rent of the two shops for April, 1974 and November, 1973 to March, 1974 and dated 13‑5‑1974 and again issued on the form of Ibrahim A. Manpori. Letter Exh. 11 is from Ibrahim A. Manpori addressed to the appellant asking the appellant to vacate one room for the purpose of repairs. Exh.12 is a letter from appellant to Ibrahim A. Manpori, the respondent enclosing cheque of Rs.709 as rent for 1‑5‑1974 to 33‑1‑1975, it is dated 22‑3‑1975. Exh. 14 is again a letter from appellant to Ibrahim A. Manpori dated 26‑4‑1974 enclosing a cheque for three months. Exh. 16 is again a letter from appellant to Ibrahim A. Manpori the respondent enclosing a cheque for the 3 months, it is dated 24‑7‑1975. The Rent Controller ordered the eviction of the appellant on the ground that it was the duty of the appellant to tender the rent and that tender of rent of several months was not a proper tender under the Ordinance. The rent should have been tendered within due date. He held that the default was deliberate. In appeal by the appellant the Additional District Judge held that the appellant had failed to prove the practice of tender of rent in lump sum. He was of the view that mere two receipts of lump sum payments did not discharge the onus of proving the practice of lump sum payments. And that mere inaction on the part of respondent to recover or collect rent after expiry of the due date for two times in two years could not establish that the practice of agreement of lump sum payments is m existence. He had taken into consideration the statement in cross‑examination of S.M. Yahya that applicant used to pay rent after 6 or 8 months irregularly. Mr. Liaquat Merchant has submitted that the findings in respect of default are not justified because there was a practice of lump sum payments of rent. However, I find that there are concurrent findings of the two Courts below that there has been a default in the payment of rent by the appellant. It is correct that the Rent Controller has proceeded on the basis that there can be no practice of lump sum payment when the law required payment of rent within 15 days or 60 days of the due date. The appellants have admitted that they had not paid the rent for the relevant period and the learned Additional District Judge has fully considered the matter and has come to the conclusion that there was no practice established of accepting the rent of 6 to 8 months. It is correct that S.M. Yahya had admitted that the appellant used to pay 6 to 8 months rent but he had denied that it was on account of his default in the collection of rent that the rent was paid in lump sum. He had further asserted that he used to go to collect rent. The trend of the cross‑examination of S.M. Yahya showed that the appellate was attributing the non‑payment of rent to the negligence of the rent collector but the rent collector squarely denied the same. If the appellant considered that the rent collector was negligent in the collection of rent, they could have deposited the rent either in Court or sent the same by Money Order, but they slid not do so either. Therefore, they were correctly found to have committed default. I agree with the learned Additional District Judge that a practice of lump sum payments could not be proved by mere two rent receipts and if there was such a practice the appellant could have easily tendered the receipts of all the previous payments to establish the lump sum payments. Therefore, the finding that there was no practice of lump sum payments and that there was consequently a default was quite justified. Mr. Mustafa Lakhani, Advocate for the respondent had relied upon 1980 S C M R 506 (508) where it was observed by the Supreme Court that parties cannot contract themselves out of provision of law, nor can a party plead a practice contrary to the law. It was further held that where a tenant was required to pay rent by 15th of every month the mere fact of landlord having accepted delayed payments in the past, it cannot be said to have given rise to a practice authorising tenant to make delayed payments in derogation of provisions of section 13 of Ordinance 6 of 1959. With respect I follow this view and hold that mere acceptance of rent in two lump sum payments by the landlord did not entitle the appellant to continue paying the future rent in lump sum and therefore, the appellants had committed default in payments of 5 months rent as found by the two Courts below. Mr. Liaquat Merchant then contended that the respondent had not proved that he was the Attorney of the landladies Mst. Safia Bai and Sughra Bai and hence he could not maintain the ejectment application. In this respect the title of the application shows that Ibrahim son of Adam Ali Manpori Attorney of Mst. Safia Bai and Sughra Bai was the applicant and para. 1 of the application showed that the applicant was duly authorised Attorney of Sughra Bai and Safia Bai and that the applicant collects rents, issues receipts to tenant and is entitled to eject tenants who commit default. In paragraph 1 of written statement the appellant had denied that Ibrahim was Attorney or that he was entitled to eject tenants. However, the right of Ibrahim to collect rent was not denied and it was stated that (he rent collector of the applicants whose name is not known to the opponent, comes to collect the rents as aforesaid. It is significant to note that there were four issues suggested by the appellant and in not a single issue, they suggested the issue that the respondent was not entitled either to recover rent ok, that the application was not maintainable. Moreover, the rent receipts Exhs. 7 to 10 produced by the appellants themselves have been issued on behalf of Ibrahim A. Manpori, the respondent and therefore, the appellants cannot deny that they have been paying rent to Ibrahim A. Manpori who was thus obviously entitled to receive rents from the appellant. Exh. 11 is a letter by Ibrahim, respondent to the appellants and they never challenged the authority of Ibrahim A. Manpori. Even Exhs. 12, 14 and 16 are copies of letters sent icy the appellants to the same person Ibrahim A. Manpori the present respondent to whom rent was tendered by the appellants by cheques, and hence again the authority of Ibrahim A. Manpori to recover rents from the appellants appears to be established and concludes matter between the parties. In these circumstances the submissions of Mr. Liaquat Merchant that the power of attorney from the landladies had not been proved by the respondent, appears to be of no consequence because the definition of landlord under section 2(c) of West Pakistan Urban Rent Restriction Ordinance, 1959 shows that "any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of or for the benefit of any other person is a landlord." From the circumstances enumerated above it is apparent that Ibrahim A. Manpori the respondent was receiving rent from the appellants and the appellants had been treating him as the person to whom they were liable to pay rent and had in fact paid and tendered rent to him and he was thus entitled to receive rent from the appellants and was consequently in the position of landlord of the premises and hence he could maintain the application for ejectment in his own name. Consequently this appeal is found to be without merit and is hereby dismissed. But appellant is allowed six months to vacate the shops in question in order to enable him to make alternate arrangements of commercial premises, but the appellant must continue to pay the rent regularly during this period. These are the reasons of short order passed by me on 20‑11‑1983. MA.K./2549/K Appeal dismissed