1984 PLP 166 (CLC)

Najumuddin v. Zamir Ahmed P L D 1982 Kar. 188 distinguished. Khuda Bux Umrani for Appellant. Mustafa Lakhani for Respondent. Date of hearing : 13th December, 1982. This appeal under section 15 .(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, is filed by the tenant appellant to challenge the concurrent findings of the two Courts below ordering his ejectment on the ground of default.

2. The application for ejectment was instituted on 30th August, 1974 alleging that the rent from October, 1973 to July, 1974 was not tendered or paid by the appellant. Non‑payment of rent was not disputed before the Rent Controller but it was pleaded in the defence that it was the practice of the landlord to accept the rent in lump sum which led the tenant to believe that the rent will be continued to be collected by the landlord periodically. In support of his contention the tenant appellant produced number of receipts showing that the rent was collected some times for 8 months, some time for 5 months and on some occasion it was for a period exceeding 10 months. Both the Courts below however, came to the conclusion that the payments made by the tenant appellant were only delayed payments and did not give rise to any practice so as to modify the statutory obligation of the tenant to tender the rent within the time allowed by law. The learned counsel for the appellant contends that in view of the fact that the respondent even after service of notices Exh. O‑3 dated 26th December, 1969. Exh. O‑4 dated 27th March, 1970 and Exh. O‑2 dated 29th December, 1971 continued to accept rent in lump sum only show that the landlord had consented to the practice of payment of rent in lump sum which had the effect of modifying the obligation of the tenant to tender the rent as provided under the law and, therefore, the Courts below should have exercised the discretion in favour of appellant. I am unable to accept the contention raised by the learned counsel for the appellant. In the letter dated 26th December, 1969 the landlord/ respondent had clearly warned the appellant and drew his attention to clause (2) of rent agreement and asserted that the rent was payable before 5th of every month and that the tenant was regularly making breach of that agreement. Again in the letter dated 27th March, 1970 it was pointed out to the appellant that he was in arrears of rent from June, 1969 to March, 1970 amounting to Rs. 2,000 and it was threatened in that letter that in case he does not settle the arrears before the date mentioned in the letter the landlord would proceed to take action against him according to law. Similarly, in the letter dated 29th December, 1971 the appellant was asked to clear the arrears from September to December, 1971 amount ing to Rs. 800 alongwith the rent for the month of January, 1972 before 5th of January, 1972. It is significant to note that in the letter, dated 29th December, 1971 the appellant was not only called upon to pay the arrears upto December, 1971 but he was also called upon to pay rent of January, 1972 before 5th of January, 1972. If the landlord had consented to accept the rent in lump sum as contended by the learned counsel, there was no reason to call upon the appellant to pay the rent for January, 1972 before 5th of January, 1972. By reading these letters it cannot be said that the landlord had acquiesced in the, practice of payment of rent in lump sum by the tenant. On the contrary these letters show that the landlord always insisted on recovery of rent in accordance with the agreement but it was the appellant who always avoided to pay the rent. Mere fact that the respondent on several occasion accepted even the delayed payment of rent and condoned the default only shows indulgence on the part of landlord but it did not give rise to a practice which modified the contractual and statutory obligation of the appellant. The Courts below, therefore, rightly held the appellant as defaulter in payment of rent. The effect of payment of rent in lump sum by a tenant has been considered by the Supreme Court in the case of Abdul Rashid Saleh Muhammad (1980 S C M R 506) and I respectfully reproduce here the following observation of the Court in the above case which is relevant on the point in issue :‑

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7. With regard to the question of default in the payment of rent, as already mentioned, the plea taken up by the petitioner/ tenant is that a practice lead arisen between him and the landlord that the rent would be paid periodically at intervals of 3 or months. In support of this contention he produced some receipts issued in his favour by the landlord or his sons showing that on several, occasions rent had been paid for 2 or 3 months at a time. It was contended further on his behalf that in view of this practice he had not tendered the rent for the 4 months in question in the hope that either the landlord or one of his sons will come to collect it and when no one came to collect it, he sent the rent to the landlord through a money order which was not accepted by him.

8. This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmed Khan that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord /respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent." The learned counsel for the appellant contended that the above Supreme Court case was considered in a case reported as Najimuddin v. Zamir Ahmed (P L D 1982 Kar. 188) decided by a learned Single Judge of this Court and it is argued by the learned counsel that in the case referred to above the learned Single Judge accepted the plea of tenant and rejected the appeal of the landlord against the decision of the first appellate authority who has refused to pass order of ejectment against the tenant respondent. In the above cited case the Rent Controller granted ejectment of tenant on the ground of default but the first appellate authority reversed the finding that there was practice on the part of landlord to accept the rent in lump sum which led the tenant to believe that he could tender rent in lump sum. The learned Single Judge agreed with the conclusion of 1st appellate authority and on the evidence in that case took the view that the tenant was led to believe by the landlord that if the rent is offered in lump sum it will be accepted by him. The case is quite distinguishable on fact and has no application to the facts of the present case. In the case before me the landlord before filing of ejectment case on three occasion protested against the practice of payment of rent in lump sum and therefore, it cannot be argued that he had consented or acquiesced in the practice of payment of rent in lump sum. Moreover, in view of the law laid down by the Supreme Court in the case of Abdul Rashid v. Saleh Muhammad no exception could be taken to the order of ejectment passed against the appellant in the circumstances of the case. The appeal is accordingly dismissed with no order as to costs. The appellant is allowed six months' tinge to vacate the premises subject to the condition that he will continue to deposit the rent in Court in accordance with the direction of the Rent Controller. S. Q Appeal dismissed.