1993 PLP 2508 (CLC)

Date of hearing: 25th March, 1992. This appeal is directed against the order passed by the learned Third Senior Civil Judge and Rent Controller South, Karachi dated 13‑12‑1987 directing the appellant to put the landlord in vacant possession of the demised premises within sixty days from the date of the impugned order.

2. The respondent had sought eviction of the appellant from the demised premises on the ground of non‑payment of rent. It had been alleged that the appellant had failed to tender or pay rent to the respondent from January, 1985. The application was resisted by the appellant. Although it was admitted by him that he did not possess rent receipts in respect of rent after December, 1984, but according to him, the appellant had actually paid rent to the respondent up to 31‑12‑1985. However, no rent receipts were issued by the respondent to the appellant. A rent case had earlier been filed by the respondent against the appellant but the same was dismissed for non- prosecution. Thereafter fresh proceedings were instituted by the respondent against the appellant seeking ejectment of the latter. It is pertinent to point out that although the appellant had claimed to have paid rent to the respondent up to 31‑12‑1985 but he also produced evidence to show that 12 months' rent covering the period from January, 1985 to December, 1985 had been deposited by the appellant with the Rent Controller through Miscellaneous Rent Case No. 466/86. The learned Controller was, however, not impressed by the defence set up by the appellant as would appear from the following observations:‑‑

" ....Had the opponent paid the rent to the applicant from January, 1985 onwards then he should have not deposited the rent in Court from January, 1985 onwards. Moreover the opponent has not proved that he has paid rent to the applicant from January, 1985 onwards but the applicant failed to issue rent receipt to him due to non‑availability of printed rent receipts. Had it been the position the opponent should have issued notice to the applicant that why the applicant has not issued rent to him in spite of rent received by him from January, 1985 onwards. I therefore believe the version of applicant and decide that the opponent has committed default in payment of rent from January, 1985 onwards. Findings accordingly."

4. I have heard Mr. Rasheed A. Rizvi, learned counsel for the appellant and Mr. Hyder Raza Naqvi, learned counsel for the respondent.

5. The main contention of the learned counsel for the appellant before me has been that there was a practice in vogue whereby the respondent used to accept rent from the appellant in a lump sum and reference in this respect has been made to the rent receipts produced by the respondent himself before the learned Controller (Exhibits A/1 to A/13). Reliance has been placed on the case of Abdul Aziz v. Abdul Ghani (1986 SCMR 1857). In this case it was held by the Supreme Court that where the landlord himself adopts practice of receiving arrears of rent in a lump sum and such practice has been in vogue from the very, beginning of the tenancy then although rent has not been paid by the tenant to the landlord as required under the law, yet the conduct of the landlord himself would furnish sufficient justification to the Court to exercise its discretion against him in dismissing his eviction application. It was further held chat under such circumstances, the conduct of the tenant would not make him a wilful defaulter.

6. So far, as the contention of Mr. Rasheed A. Rizvi is concerned, no doubt, there can hardly be any cavil with the same but in the present case apart from the rent receipts which show that rent had been paid by the appellant to the respondent in a lump sum and such rent at times being even for a year, there is no other evidence adduced by the respondent from which it can be spelled out that there was such a practice in vogue. Mere production of receipts by the tenant showing payment of receipt of rent in a lump sum cannot be a sole guiding factory for the Courts unless there are other surrounding circumstances which can give rise to an inference that such a practice was in vogue, himself adopted by the landlord. Such is not the case in the present case. In fact, such practice of receiving rent in a lump sum was never pleaded by the appellant in the written statement filed on his behalf before the learned Controller. The case of the appellant before the Rent Controller, in fact, was that although he had paid rent for the disputed period but the landlord had not issued rent receipts to him. The contention now raised by Mr. Rasheed A. Rizvi, therefore, has been raised for the first time in appeal and the same is not supported either by the pleadings of the parties or by other surrounding circumstances of the case. Mr. Hyder Raza Naqvi has also invited my attention to the case of Amir Ali v. Messrs Burma Oil Mills Ltd. (1990 SCMR 1327) where the Supreme Court after reviewing its earlier decisions on the point including the case of Abdul Aziz v. Abdul Ghani reference to which has earlier been made in this judgment, has held that the mere fact that the landlord condones the delay in payment of rent every month cannot be pleaded as a ground for holding that he has agreed to modify the contract of tenancy. It has been further held that the parties cannot .contract themselves out of the provisions of the Rent Ordinance and neither party can plead a practice which is contrary to the Ordinance. The mere fact that a landlord accepts 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 rent has I to be paid by the tenant in accordance with the provisions of the Rent Ordinance. In my opinion, this case is fully attracted to the facts of the instant case because; as has been pointed out earlier, no evidence was adduced on the point that there was a practice of accepting rent in lump sum which had been adopted by the respondent. The rent receipts to which Mr. Rasheed A. Rizvi has referred in no way can advance the case of the respondent in absence of the circumstances giving rise to such an inference.

7. In the result, I find no force in this appeal and the same is dismissed. The parties are left to bear their own costs.

8. By consent six months' time is allowed to the appellant to vacate the premises in question. AA./W‑87/K Appeal dismissed.