1990 PLP 1061 (CLC)

Muhammad Ali Jan for Appellant. Syed Hayat Ali for Respondent. Dates of hearing: 19th, 26th November and 17th December, 1989. The respondent filed an application for ejectment against the appellant on the ground of default in payment of rent from May 1983 till September 1983 and parting with possession of the disputed shop without the consent of the respondent. The shop is situated on premises hearing No.111‑F, 15/17 Nazimabad under tenancy agreement dated 20‑11‑1973 originally the rent was Rs.75 per month which was enhanced to Rs.100 and from January 1983 the same was enhanced to Rs.130 per month. The appellant paid this agreed rent with effect from January 1983 upto April 1983. From May 1983 he failed to pay rent. It has been alleged that without her consent the appellant has sublet the portion of the shop to some one who is carrying on business under the name and style of Al Hussain Tailors. In his written statement the appellant denied both these allegations and pleaded that the agreement of tenancy was for 11 months, which expired on 20‑10 1974; thereafter the appellant has been a statutory tenant in respect of the disputed shop. 1t has been pleaded that it was the habit and practice of the respondent to come and‑collect rent periodically at her own convenience although the appellant had asked her to collect rent every month thus the mode of payment was periodical and not monthly. 1t has been denied that appellant had sublet the premises to any one. In fact he is running his own business as sole proprietor in the said shop under the name and style of Niaz Tailor and Peco Center. The learned Controller has given finding that the appellant has committed default in payment of rent and has also sublet the disputed premises. He therefore ordered for his ejectment. Mr. Muhammad Ali Jan, the learned counsel for the appellant has contended that as a practice had developed between the parties to collect rent periodically and not monthly the accumulation of rent from May 1983 till September 1983 would not amount to a default. Therefore, on appellant's own pleading and evidence the rent for the month of May 1983 to Septemebr 1983 was not paid till the filing of the ejectment application. Mr. Syed Inayat Ali, the learned counsel for the respondent has contended that as the ejectment application was filed on 22‑10‑1983 non‑payment of rent up to August 1988 should be treated as default. Both the parties seem to agree that statutory tenancy had been created between them and rent was to be paid within 60 days from the date when it became due and payable. On that basis admittedly the appellant has defaulted in payment of rent. The appellant has taken the plea of existing practice so that discretion may be exercised in his favour and non‑payment of rent may not be treated as wilful default liable to ejectment. The learned counsel for the appellant has pointed out to eight receipts from November 1975 till October, 1980 to prove that respondent was collecting rent after two three months or more. No document has been produced to show that upto 1983 practice of collecting accumulated rent was adopted by the parties. The tenancy was created in the year 1973 and for 10 years i.e. about 120 months, only eight instances could be cited to establish the practice of collecting accumulated rent. A practice cannot be made a defence for explaining the default but it can be made a ground to show that due' to conduct of the landlord non payment of rent every month could not be treated as a wilful default and thus the A Controller should exercise his discretion in favour of the tenant. But before discretion is exercised the tenant should establish that the so‑called practice is consistent., continuous, conscientious, uniform and mutual. It is accepted by both the parties and is not a unilateral and voluntary act of any party. I may further clarify that mere establishment of a practice may not by itself be a, sufficient defence but the tenant should also establish that the practice has been since long with the consent of the landlord which has led him to believe that both the parties agree in payment of rent in this particular mode and thus although a default in technical sense has been committed it may not be termed as wilful and therefore the discretion should be exercised in his favour. This principle can hardly apply to the facts of the case. The payments made after some intervals may be attributed to the delayed payments as has been observed in PLD 1973 Kar. 256 particularly when landlord denies that any such practice existed between the parties. The burden of proof is always on the tenant to establish this practice. Mr. Muhammad B Ali Jan, the learned counsel has referred to 1980 SCMR 1857, 1988 CLC 1552 and 1986 CLC

380. Mr. Syed Inayat Ali, the learned counsel for the respondent has referred to 1971 SCMR 598,_ 1981 SCMR 93, 1986 SCMR 1857, PLD 1980 SC 298, PLD 1984 SC 32 and PLD 1989 SC

489. In the last case i.e. Mst. Hajiani Aisha and others v. Abdul Waheed PLD 1989 SC 489 it was observed as follows:‑ "Moreover, it has been consistently held by this Court that the mere fact that the landlord accepts rent from the tenant periodically does not mean that he does not desire or expect rent to be paid in time as required by the Ordinance, Haji Muhammad Oasim v. Mchran Ali 1983 SCMR 1205; defence based on the ground of landlord receiving or collecting the rent at intervals of several months is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent from the tenant, Malka Begum v. Mehr Ali Hashmi 1984 SCMR

755. Production of one solitary receipt showing lump sum payment of the arrears of rent would not lead to the presumption that practice of receiving rent periodically was adopted by the landlord, Muhammad Alam v. Noor Muhammad 1973 SCMR 606." After this observation reliance was placed Dr. Syed Waris Ali Tirmazi v. Mst. Liaqat Begum 1980 SCMR

601. In the present case also no consistent practice or regular conduct of the landlord has been established to show that she had allowed the tenant to pay rent regularly with regular intervals with the intention to trap him taking advantage of his conduct. In my view considering the principles laid in the aforesaid authorities the appellant is a defaulter and has not been able to establish facts on the basis of which discretion should be exercised in his favour. The next ground urged by the learned counsel for the appellant is that no case for subletting has been made out. Section 15(2)(3)(a) of Sindh Rented Premises Ordinance provides that ejectment shall be ordered if `the tenant has without the written consent of the landlord handed over the possession of the premises to some other person: Significantly enough the language used in this provision is different from the earlier one where the word `subletting' has been used Subletting connotes a definite meaning of handing over possession and accepting rent from the sub‑tenant. But now mere parting with the possession of the premises and giving it to some other person without the written consent of the landlord is enough for ejectment. Therefore, in order to succeed in any case on such ground the landlord should establish that the tenant has handed over possession of the premises to some other person. It is not necessary to establish that such other person is paying rent to the tenant. From the evidence on record the respondent has not been able to establish that the appellant has handed over possession of the shop to some other person. The respondent has not been able even the name that other person who may be in occupation or to whom possession has been handed over. On the other hand the appellant has stated that he is in possession of the premises carrying on business of tailoring in the name of Niaz Tailors & Peco Center. It is true that the evidence produced by the appellant is not very firm but the burden was entirely on the respondent and for the infirmities in the evidence of the appellant no advantage can be given to the respondent. In my view so far issue relating to subletting is concerned the finding of the learned Controller is not correct and is set aside. However, as I have helot that the appellant has committed default in payment of rent the appeal is dismissed and appellant shall hand over vacant possession of the disputed shop to the respondent within a period of six months. I4.B.T./N‑249/K Appeal dismissed.