1991 PLP 632 (CLC)

5. The parties then entered into evidence once again. The appellant riled affidavit in evidence of her son Mirza Arif Hamid. The respondents filed affidavits‑in‑evidence of respondent No.2 and one Saleem Ahmed the first cousin of the said witness. The learned Rent Controller by his impugned order dismissed the rent case of the appellant on both the counts.

6. I have heard Mr. Akhtar Hussain learned counsel of the appellant and Mr. Mohammad Iqbal Aqeel learned Advocate for the respondents. It has been contended that the Rent Controller had decided the issue of default against the appellant as the Rent Controller on reading of the evidence had reached the conclusion that the respondents had committed no default in payment of rent for the reason that the accumulated rent was being paid by the respondents in lumpsum and the appellant was accepting the accumulated rent. The above conclusion has been drawn by the Rent Controller by relying on the money order coupons Ex.0‑1 to 0.8. The learned counsel has pointed out to me that aforesaid money order coupons have been selected by respondents for production in evidence from amongst the host of Money Orders despatched by the predecessors of respondents from 1967 to 1979. I find that the said coupons do not reflect payment of accumulated rent. On the contrary the said coupons show that the respondent's predecessor used to pay rent at least partially in advance. The scrutiny of the said Money Order Coupons shows that the rent was being despatched for three months at a time but within the period of sixty days from the date, the rent became due and payable, as prescribed by law, except two of them, namely Ex.0‑5 which is towards rent for four months of 1973 and Exh. 0 7 for five months of 1975 each disclosing late payment of one month's rent. The details of the said Money Orders Ex.0‑1 to 0‑8 are as under:‑

Nos. of Exh. Date Rent for the months of 0‑1 30‑11‑1967. Oct. to Dec.1967 0‑2. 8‑10‑1968. Sept. to Nov.1969. 0‑3 15‑6‑1971 April to June 1971. 0‑4. 23‑2‑1972. January to March 1972. 0‑5 14‑4‑1973. January to April 1973. 0‑6. 11‑2‑1974. January to March 1974. 0‑7. 29‑5‑1975. February to June 1975. 0‑8 9‑3‑1978. February to April 1978. The Rent Controller misread the evidence, particularly the said money order coupons by treating the rent tendered under them as lump sum payment of accumulated rent.

7. It is an admitted fact that the rent was being paid by Money Orders since 1967, but the respondents chose to produce only the above‑stated Money Orders. The suppression of the remaining Money Orders leads to the only inference that had they been produced, would not have proved the defence set up by the respondents. It is established law that burden of proof of payment of accumulated rent lay entirely on tenant. The following are some of the authorities on the said proposition of law; (1) Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum (1980 SCMR 601), (2) Mohammad Jamil v. Khadim Hussain (1984 C L C 2420), (3) Ghulam Ali v. Kabiruddin (1986 M L D 1583).

8. The learned counsel of the respondents has contended that EXS.0‑5 and 0‑7 do establish payment of accumulated rent and since the appellant did not protest against such payments, the respondents cannot be declared as defaulters. This contention has no substance. The mere acceptance of the delayed payment on two occasions one in the year 1973 and another in the year 1975 do not and cannot establish that the parties had agreed to follow the practice of payment of accumulated rent. Acceptance of the said Money Orders would at the most be construed as an act of condonation of default on the part of the appellant and such payments would not absolve the respondents of their liability to pay rent within the specified time, unless it has been established that accumulated rent was being paid at the request of the appellant or express agreement to that effect between the parties. If the tenant has been negligent in the performance of his contractual or statutory obligations in payment of rent and the landlord has tolerated the default for some time, by accepting the rent paid at irregular intervals, cannot in any way, be deemed to have established a practice of payment of rent at the sweet will of the tenant, or that the tenant will be allowed to take advantage of his own negligence. The contention of the respondents is against the law propounded in several authoritative pronouncements. The reference may be made to (a) Syed Ryaz Ali v. Shabbir Ahmed Khan (1971 S C M R 599), (b) Amanat Khan v. Mst. Begum Jan and another (1979 S C M R 608), (c) Dr. Syed Waris Ali Tirmi2i, v. Mst. Liaqat Begum (1980 S C M R 601) and (d) M/s. Tar Muhammad Janoo & Co. v. Tahirali and others (1981 S C M R 93). In Mohammad Qasim v. Mehrban Ali (1983 S C M R 1205) referring to the aforesaid authorities, it is observed at page 1205; "The reason for the above‑noted view has been succinctly summed up by this Court in M/s. Jan Muhammad Chaudhry & Company v. Tahir Ali and others in C.P.S.L.A. No.K‑16 of 1979 which, in short is that the mere fact that the landlord accepts the rent from a tenant periodically does not mean that he does not desire or expect it to be paid in time, as required by the Urban Rent Restriction Ordinance. People are generally hesitant to enter into litigation and do not usually rush to a Court of law on the very first default by the tenant. In most of the cases a landlord out of decency or out of hesitation to resort to litigation, tries to induce and coax the tenant to pay the rent in time and accepts it even when a delayed payment is made. But if there are repeated delays on the part of the tenant there comes a time when the landlord feels that enough is enough and he cannot tolerate the delay in payment of rent any longer. If he goes to the Court at that stage, the tenant cannot be allowed to plead his own negligence. Moreover, in view of his habitual default the tenant, in such cases, is not even entitled to claim exercise of discretion by the Rent Controller in his favour." The same view was affirmed in the case of Aleem Ahmed v. Amir Ali (PLD 1984 SC 32). In the last one distinction was also drawn between the exercise of discretion by the Rent Controller in refusing the eviction on account of practice of payment of accumulated rent developed by the parties and refusing eviction by holding that no default is committed because of such practice of the parties. In the instant case as observed above the Rent Controller has not exercised discretion but reached the demonstrably unwarranted conclusion that the respondent had not committed default.

9. The Rent Controller in support of the above finding has relied on the cases of Abdul Aziz v. Abdul Ghani (1986 S C M R 1857), and Abdul Latif v. Munir Ahmed (P L D 1987 Karachi 460). In the former case it was found by the Court that on two occasions the landlord received the arrears of rent after 8 months, on one occasion after 10 months and on four occasions after the period of more than two months without any objection. This practice was found in vogue from the very beginning of the tenancy. It (vas also noted that the conduct of the landlord in that case was such which furnished sufficient justification to the Appellate Court to exercise discretion against the landlord. The above authority was relied upon in the case of Abdul Latif v. Munir Ahmed (ibid) as the learned Judge of this Court reached the conclusion that there was sufficient evidence in proof of assertion that the landlord was in the habit of accepting rent periodically. The case of Abdul Aziz (ibid) was considered in Hajiani Aisha v. Abdul Waheed (P L D 1989 SC 489) and the same was distinguished by their Lordships with the observation that in the said case the landlord had adopted the practice of receiving arrears of rent in lump sum which was in vogue from the very beginning of the tenancy, and the relief was denied to the landlord because of his conduct, in exercise of the discretion. In the said case of Hajiani Aisha, their Lordships have referred to Malka Bagum v. Mehar Ali Hashmi (1984 S C M R 755), Muhammad Alam v. Noor Mohammad (1973 S C M R 606), and Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum (1980 S C M R 601) and thus finally confirmed the view expressed earlier. I, therefore, hold that the leniency shown by the appellant in accepting late payments of rent at two occasions would not constitute or establish practice of payment of rent in lump sum, absolving the respondents from performance of their statutory obligation to tender rent within the period prescribed by law or save them from the effect of non‑payment of rent within the said period.

10. The Rent case was filed by the appellant on the ground of non‑payment of rent for the period from the month of March to August 1980. The respondents pleaded that the rent for the months of March and April was sent under money order dated 8‑3‑1980 which was refused by the appellant. Money order was again sent on 9‑3‑1980 towards the payment of rent for March 1980. This money order was refused and therefore rent for the months of March and April 1980 was sent under money order dated 6,4‑1980 which met the same fate. In these circumstances respondents on 24‑8‑1980 riled Misc. Rent Case No.4767/80 seeking permission of the Rent Controller to deposit rent in Court which was allowed on 2‑9‑1980 and rent for the months of March to August 1980 was deposited on 8‑9‑1980. Money Order coupons sent during March and April 1980 are on record as Ex.0‑9. 0‑10 and 0‑

11. The authenticity of these Money Orders is highly doubtful. The said Money Orders do not bear round seal of the Post Office or the endorsement of the postman. The respondents failed to produce postal receipts pertaining to the said Money Orders. The first Money Order is alleged to have been sent on 8‑3‑1980 and second on 9‑3‑1980 after refusal of the first one by the appellant. The return of first Money Order by the postal authorities on the next day of its despatch is an act unbelievable and cannot be accepted. Be that as it may, the fact, remains that the said money orders were towards rent for the months of March and April 1980 and thereafter the respondents chose not to pay rent by any of the modes prescribed by law until September 1980 when they deposited rent in the Misc. Rent Case. The payment made in the Misc. Rent Case at a time when the default was already committed cannot save the respondents from the consequence of default in payment of rent. In case the Money Orders were refused by the appellant, as is the case of the respondents, they were under an obligation to immediately avail the alternate mode for legal tender of rent prescribed under section 10 of the Ordinance for enjoyment of the protection provided to tenants by the Ordinance. The learned counsel of the appellant has relied on the case of Yousuf Shah v. Haji Ghulam Jan (1975 S C M R 464). This authority is on the proposition that the refusal of the landlord to receive rent does not absolve the tenant from his statutory obligation to tender rent of each succeeding month. The above authority with its full force is applicable to the instant case inasmuch as the respondents after alleged refusal of third Money Order in April 1980 preferred deep slumber, to wake up only in September 1980, at a time when the legal protection provided to respondents had already gone into deep gorge abyssal with the passage of time, which consequence could have been avoided as stated above.

11. The respondents to ward off the concomitant of default have vainly tried to explain the late payment. Their case is that the appellant was demanding enhanced rent and the respondents were negotiating with the appellant through their witness Saleem Ahmed on the issue of quantum of increase in rent and because of the continuance of these negotiations, the rent was not paid. Such plea of continued negotiation from April to August 1980 was not taken in the written statement and was introduced for the first time in the affidavit‑in‑evidence filed on behalf of the respondents after remand of the case by this Court. For such reason alone the plea cannot be sustained, on principle of secunduni allegata et probata. The case of Ghulam. Ali v. Mohammad Hussain Khathwala P L D 1985 Kar. 152 is the authority on the point. The said principle has been consistently applied to the cases under rent restriction laws. Reference may be made to (1) Taiyab A. Kapadia v. Agha Ziauddin Barni (1981 C L C 1267), (2) Mst. Qamrunnisa v. Muhammad Hanif (1984 C L C 1013), (3) The Darul Uloom Naieemia Trust v. Munir Ahmed (1984 C L C 3483) and (4) Mst. Jana Bai v. Mst. Gulshan and another (1984 C L C 1061). I, however, find that even if it was so, the respondents were under legal obligation to pay rent every month as prescribed by law as has been laid down in the case of Ashrafuddin v. Sabir Hussain (1973 S C M R 309) and particularly looking at the strained relationship between the parties, the respondents should have been rather vigilant in payment of rent. The record shows that it is at least from the year 1967 that the rent was being tendered by money orders and such of them sent in March and April, 1980 were refused and according to the case of the respondents the appellant was demanding exorbitant rent. All these circumstances would have put the respondents on guard for protection of their tenancy rights. It being so, the story of non‑payment of rent within the statutory period because of the said negotiations cannot be believed.

12. So far as the second issue pertaining to bona fide personal requirement of the appellant is concerned, it has been contended by the learned counsel of the appellant that the Rent Controller has wrongly non‑suited the appellant mainly for the reason that the other shops had fallen vacant and were subsequently let out by the appellant. It is an admitted fact that shop Nos.1, 3 and 5 were vacated by the tenants. So far as shop No.3 is concerned it is occupied by the son of the appellant for his business. The other two shops were vacated in the year 1979 and were let out by the appellant. The case of the appellant is that the said shops were not suitable for the requirement of the landlady and it is the prerogative of the appellant to choose the shop being the most suitable for the business purpose the appellant's son has admitted in evidence that Shop No.5 was got vacated through Court on the ground of personal requirement and after taking over the possession from the tenant was let out in the same year. The only pleas taken by the learned counsel for the appellant that the said shop was not suitable and that the choice is prerogative of the appellant are not available to the appellant. Once the appellant having filed the case on the ground of personal requirement against the tenant of Shop No.5 thereby choosing the shop as suitable for the need, cannot turn back to say that the same was not suitable. The very fact of relating the said shop as stated above mitigates the bona fides of the appellant. The Rent Controller has answered the issue in negative for valid reasons and I uphold the said finding of the Rent Controller. As I have found that the respondents had committed default in payment of rent, I allow this appeal and hereby order eviction of the respondents from the premises in question. By consent the respondents are given four months time to hand over the possession of the shop in question to the appellant subject to deposit of rent as ordered by the Court below. H.B.T./R‑162/K Appeal allowed.