1985 PLP 1171 (MLD)

This appeal is directed against an order of ejectment, dated 24-10-1983 passed by the learned IInd Senior Civil Judge/ Controller, Karachi in Rent Case No. 4973 of 1981. The appellant Iezed Export and Import Company is doing its business on the ground of the premises on Plot No. PA/64/A, Bahadur Yar Jang Co-operative Housing Society, Bahadurabad, Karachi let out to it by the respondent Bahadur Yar Jang Academy, Karachi, since 1973. The rent of the rented premises was increased from time to time and it was being paid lastly at Rs.2,500 per month. There was default in payment of rent for the months of July, 1981 onwards. Consequently, the ejectment case was filed on 10-11-1981 on the grounds of default in payment of rent and impairment of the premises. The appellant resisted the suit, denying the allegations of default in payment of rent and causing damage to the property. The suit was contested on the following issues:-- (l) Whether the application is not maintainable on account of institution by the Secretary of the applicant? (2) Whether the opponent has committed default in payment of rent and electric charges? (3) Whether applicant requires the premises in good-faith for establishing a technical institute? (4) Whether the opponent has by removal of partition wall, impaired the value and utility of the premises? (5) What should be the order?" The parties adduced evidence. The learned Controller held by the impugned order dated 14-10-1983 that the appellant/ tenant had made default in payment of rent, as alleged, and-passed the order of ejectment of the appellant and directed that vacant. possession of the premises should be delivered to the landlord within 60 days from the date of the order. The learned counsel for the appellant did concede that the was not paid from July 1981 but he urged that the rent was paid in lump sum by means of a cheque for the months of July, August, September and October on 16-11-1981 as per practice of payment of rent in lump sum and no wilful default was committed in payment thereof. He alternatively contended that default in payment of rent, if any, was condonable in view of the long duration of the tenancy between the parties. Elucidating his argument, he made reference to certain receipts filed in evidence as Exhs. R-1 to R-13 to point out that rent was being paid in lump sum. He relied upon the cases reported in P L D 1973 Kar. 56 and P L D 1980 S C 298 in support of his contention that default in payment of rent, if any, is condonable. He made reference to the cases reported in N L R 1982 S J 32; 1971 S C M R 598; P L D 1972 Kar. 220; 1981 C L C 793 and 1982 C L C 217 and 436 to advance the plea that even if it were considered that there was default in payment of rent, the learned Controller should have exercised his discretion in favour of the appellants and rejected the ejectment application. On the other hand, the learned counsel for the respondent contended that rent was not paid for the period from July, 1981 till the ejectment application was filed on 10-11-1981 and that the tender of rent by means of a cheque issued on 16-11-1981 did not wipe off the default in payment of rent. He vehemently denied that there was any practice of payment /acceptance of rent in lump sum. He cited 1981 S. C M R 92; P L D 1984 S C 32; 1984 S C M R 755; P L D 1978 Kar. 149 and P L D 1981 Kar. 164 as the supporting authorities. The impugned order of ejectment has been passed or the ground of default in payment of rent for the period from July, 1981 onwards, The ejectment application was filed on 10-11-1981. It was put in evidence that there was an agreement o` tenancy for the period of 5 years from 1st September, 1972 and it expired in the year, 1978. The continuance of the tenancy beyond the agreed tenure of the tenancy was deemed to be statutory tenancy. The rent was, therefore, to be paid within 60 days of the expiry of the month where for rent was to be paid as provided under clause 2 subsection (2) of section 15 of the Sind Rented Premises Ordinance, 1979, whereunder the ejectment application was filed. The rent for the months of July, August, September and October was admittedly paid in the month of November, 1981. Evidently, there was clear default in payment of rent for the months of July and August, 1981, if, technically, not for the months of September and October, 1981. The explanation for late payment of the rent advanced by the appellants is that there was practice between the parties that the rent was paid/accepted in lump sum. To support this plea, reliance has been placed on certain receipts put in evidence as Exhs. R-1 to R-7 But the receipts Exhs. R-1, R-2 and R--3 pertain to the year 1973 and those Exhs. R-4 and R-5 to the year 1974. Of course, the receipts Exhs.R-6 and R-7 pertain to Ahe year 1981. But the receipt Exh. R-6 pertains to the payment of rent for the months of .January and February 1981; and the receipt Exh. R-7 is dated 26-11-1981 and it pertains to the payment of rent for the months of July, August, September and October, 1981 remitted by a cheque dated 16-11-1981, is after the filing of the rent case. The payment of rent in lump sum for some months in the years 1973 and 1974 does not establish that there was practice of payment of rent in lump sum all along and particularly in the year 1981. The payment of rent for the months of January and February 1981 vide receipt Exh.R-6 also does not prove that there was practice of payment of rent in lump sum. If there had been practice of payment of rent in lump sum, the appellant would have produced other receipts also to show that the rent for other months was paid in lump sum. The payment of rent for the months of July, August, September and October, 1981 in lump sum vide receipt, dated 26-11-1981 (Exh . R-7 ) is subsequent to the filing of ejectment application. Obviously, there is no evidence that there was established practice of payment /acceptance of rent in lump sum. The case Muhammad Aleemullah v. Ziaul Islam reported in P L D 1973 Kar. 56, relied upon by the learned counsel for the appellants, does not advance the appellant's case but it supports the respondent's case as it was held therein that the tenant must prove the plea that there was practice of payment /acceptance of rent in lump sum. In the instant case, no such practice has been established. The other case Muhammad Yousuf v. Abdullah reported in P L D 1980 S C 298, relied upon the learned counsel for the appellant, does not deal with the question of payment of rent in lump sum. It was, of course, held in a case Sajjad Ali Khan and 2 others v. Pir Bux G. Mehar reported in P L D 1972 Kar. 220 that where the landlord had habitually accepted arrears of rent in lump sum, the tenant was not in wilful default in payment if the rent was paid in lump sum. But in this case, no such practice of payment of rent in lump sum has been made out. In an identical case Malka Begum v. Mehar Ali Hashmi, reported in 1984 S C M R 755, their Lordships the Judges of the Supreme Court were pleased to hold that payment of rent in lump sum for 2 or 3 months on four occasions during the period of tenancy which had extended for more than 12 years did not establish practice of acceptance of rent in lump sum. Same view was propounded by the Supreme Court in the case Mrs. Aleema Ahmed v. Amir Ali reported in PLD 1984 SC 92, wherein reference was made to a case Syed Waras Ali Turmizi v. Liaquat Begum 1980 S C M R

601. Reference may also be made to a case Messrs Tar Muhammad Janoo & Co. v. Tahir Ali 1981 S C M R 93 wherein the tenant had made it a habit not to pay the rent regularly every month and the landlord had tolerated his default for sometime and accepted the rent paid at irregular intervals and it was held that the tenant could not avail benefit of such conduct to advance, the plea that rent was being paid in limp sum. As regards payment of arrears of rent subsequently to the filing of the rent case, the tenant could not escape the liability of default in payment of rent and reference in this respect may be made to the case B Syed Shaffiuddin v. Abdul Hakim Khan reported in P L D 1978 Kar.

149. The question of exercise of discretion by the Controller in the cases relied upon by the learned counsel for the appellant was considered in view of the facts peculiar to each case. In the instant case, there was wilful default in payment of rent for at least two months viz. July and August, 1981 and the Controller had no option but to have exercised his discretion in ordering ejectment of the appellant. For the reasons recorded above, there is no merit in the appeal and it stands dismissed with costs. Possession of the rented premise shall be delivered to the respondents within 3 months. A.A. Appeal dismissed.