1983 PLP 1990 (CLC)

It is significant to note that there is not a single instance of rent being paid regularly and monthly and no such receipts were produced by any of the parties. It has been argued by Mr. Iqbal Qazi, learned counsel for the appellants that there is admission by Mansoor Ali that the aforesaid letters are bills. However, the witness tried to explain that it would not be correct that. M/s. Essajee Ebrahimjee & Co. used to send bills for rent as no such bills were issued and the letters were reminders for payment of arrears of rent. It is apparent that whereas the learned Rent Controller on the evidence before him came to the conclusion that since the respondents by their conduct had established a practice of issuing letter of demand for the recovery of rent 'and had been collecting rent for several months at a time they were estopped from taking advantage of the established practice by changing their position to the disadvantage of the appellants. According to him the respondents were deemed to have waived their rights of receiving regular monthly rent by agreeing to the aforesaid established practice. He was, therefore, of the view that non‑payment of rent from January to June, 1971 was caused by the appellants due to conduct of the respondents and as such could not be termed as default. He, therefore, dismissed the application for ejectment of the appellants. . The respondents filed first appeal, which incidentally was heard and decided by the 5th Additional District Judge, Karachi who allowed the appeal and held that the appellants were defaulters and therefore, he directed that they should give vacant possession of the premises to the respondents within 4 months from the date of his order. It is apparent from the impugned judgment that the Vth Additional District Judge held that letters already mentioned were not bills of rent but were reminders intimating to the appellants that they were in arrears of rent. It was his opinion that even the language used gave the impression that the conduct of the appellants was not approved by the respondents. He was further of the view that even though the landlords were receiving rent at long intervals from their tenants, that fact itself did not lead to the conclusion that there was agreement an the part of the landlords to receive rent at the end of every month. The Vth Additional Sessions Judge was also of the view that the parties could not contract themselves out of the provisions of section 13 (2) (i) of the West Pakistan Urban Rent Restriction Ordinance, 1959 as the provision is based on public policy. Mr. Iqbal Qazi, the learned counsel for the appellants has supported the decision of the learned Rent Controller that the established practice between the parties had changed the legal position. He has relied upon the decision of the Lahore High Court in Mehrban Ali v. Haji Muhammad Qasim P L D 1976 Lah. 1052. In that case the appellant had been occupying shop as tenant for 10/12 years and in spite of the fact that according to the terms and conditions, the payment of rent was to be made against receipts, the mode of payment had been changed by practice adopted by the parties. It was observed that it did not mean that such change be taken into consideration as the same had come into being by the consent of the parties. It was further observed as under :‑ "In such a case tenant can be under a genuine impression that since payment of rent is to be made periodically, therefore, there would be no default on his part if he pays rent after some intervals. In the present case the terms and conditions of the tenancy, so far as the payment of rent is concerned had been changed by the conduct of the landlord himself who had been accepting rent periodically and who by his conduct gave impression to the appellant if pays rent even after some months, he would not commit any default." In that case it was further held that if default had been committed by tenant deliberately then order of ejectment against him should be passed but in case deliberate default is not proved then it is discretionary with the Controller to pass such orders. ‑On the point of discretion in such a matter, in Najmuddin v. Zamir Ahmed P L D 1982;,Kar. 188, in a recent decision of this Court it was observed that under the provisions of section 13(2) of the West Pakistan Urban Rent Restriction Ordinance, Controller is not bound to order eviction in every case in which default of payment of rent has been proved and that under the aforesaid provisions the Controller has ample discretion and the same has to be exercised after taking into consideration all the factors. In Fazal Ahmed and another v. Muhammad Abdul Shakoor1981 C L C 793, in a case where a tenant of long standing was irregular in payment of rent, but the irregular payments were waived by the landlord for at least two years, and the rent was in arrears discretion in favour of tenant was not interfered with in the circumstances. The contention with regard to practice , having grown up about payment of rents in lump sum was considered 'by the Supreme Court in Sh. Muhammad Hassan & Co. v. Mian Muhammad Ahmed Khan 1975 S C M R 355, and it was held that contract of such description even otherwise being contrary to the provision of section 13(2) could not prevail. It was observed as under :‑ "The learned Single Judge has rightly observed that the implied contract on the basis of the aforesaid practice was not pleaded by petitioner in his written statement and that in any event such contract was contrary to the provisions of section 13(3) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) and, therefore, the former could not prevail over the latter. The petitioner has failed to controvert this legal position ...... The petitioner claims benefit under section 13 of the said Ordinance, and he can, therefore, do so if his case does not fall within mischief of section 13(2) of the Ordinance." In Abdul Rasheed v. Saleh Muhammad 1980 S C M R 506, a decision of the Supreme Court the plea taken by the tenant that a practice had arisen between him and landlord that rent would be paid periodically was considered and it was observed as under :‑ "This plea is based upon 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 law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plea a practice which is contrary to the law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on number of occasions cannot be said to have given rise to any practice whittling down the requirement of law that rent has to be paid by the tenant on 15th of every month. It was held by this Court in S. Riaz v. Shabbir Ahmed Khan that a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, 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 bad agreed to vary the terms and conditions of the rules regarding payment of rent." In an earlier decision of the Supreme Court in Muhammad Alam v. Noor Muhammad 1973 S C M R 606, it was observed as under :‑ "Another aspect of the case is that the appellant was required to pay rent by 5th day of every month as stipulated in rent deed Exh.

27. If he failed to pay rent within 15 days after expiry of the date fixed in the agreement of tenancy be became liable to eviction. No practice to the contrary could whittle down the requirement of law. The Rent Controller can, however, condone the delay, if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant to believe that rent was not to be paid every month. In that case it could be said that there was no deliberate default and Court might exercise discretion against directing eviction of the tenant although in law, default is proved on his part." In Dr. Syed Waris Ali Tirmizy v. Mst. Liaquat Begum 1980 S C N R O P L D 1981 Kar. 150 decision of the Supreme Court where reliance was placed on the above‑quoted observation in Muhammad Alam's case, it was pointed out as under :‑ "As this observation was followed in Shafi Muhammad v. Zahir Hussain and another we would clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J. (as be then was) gave a warning in Muhammad Alam's case that a practice by a tenant to pay rent at regular interval made him liable to eviction, because such a practice was contrary to‑the provisions of the West Pakistan Urban Rent Restriction Ordinance. 1959. ,Then after his warning his Lordship went on to make an observation that the Court could condone delay in the payment of rent if the landlord had agreed to accept rent periodically. Now, if a landlord agrees to accept rent periodically this can only be the result of a fresh agreement between him and the tenant and if he enters into such an agreement he would no doubt be bound by his representation to the tenant not to pay rent. at the end of every month. However, as was explained in Alimullah's case the burden of proving such an agreement between the landlord and the tenant is not be interfered lightly and cannot ,generally be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals, therefore, the observation of Muhammad Yakoob Ali, J. (as he then was) does not help the petitioner's case because he has failed to prove that the respondent through her husband had agreed to alter the terms of the tenancy with the petitioner and to receive rent from him at long intervals." In the impugned judgment of Vth Additional District Judge, Karachi the plea of the collection of the rent in lump sum periodically was rejected as according to him such practice could not be pleaded against the pro visions of the West Pakistan Rent Restriction Ordinance, 1959 under which the appellants had to remit rent. The aforesaid finding to that extent cannot be taken exception to, but it has been argued by Mr. Iqbal Qazi the learned counsel for the appellant that the evidence on record with regard to the practice on the part of the respondents in receiving the rent after a period of months would at least show that the respondents condoned the default and therefore, learned Vth Additional District Judge Karachi should not have interfered with the exercise of discretion by the Rent Controller. It is his contention that the first appellate Court should have considered whether under the circumstances stated the ~exercise of discretion by the Rent Controller was proper or not. The learned counsel for the appellant has also relied upon the order of the Supreme Court in Civil Petition for Special Leave to Appeal No. 5/81 in Messrs Abdul Rehman Abdul Ghani v. His Holiness Dr, Syedna M. Burhanuddin Sahib. In that case the High Court relying principally on Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum, upheld the order of the Rent Controller and set aside the order of the First Appellate .Court whereby it had been held that the tenants were not guilty of wilful default as the collecting of rent in lump sum periodically showed that the landlord had condoned the default. It was contended that before the exercise of discretion by the First Appellate Court was interfered with the High Court should have considered whether the fact that rent was collected in lump sum periodically on behalf of the respondent made the petitioners guilty of wilful default, specially when the aforesaid facts were distinguishable from those in the case of Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum. The Supreme Court granted leave to appeal. Reliance has also been placed on the decision of this Court in Amir Ali v. Mrs. Alima Ahmed (1), wherein it was, inter alia, held that‑ interference by first appellate Court with discretion exercised by Rent Controller if found not justified the error committed by the first appellate Court could be rectified the High Court in IInd Appeal. It is apparent from the decisions discussed above that the partied cannot contract themselves out of the provisions of section 13(2) (i) of the Ordinance by establishing a different practice with regard to the mode o payment of rent. However, since in the instant case from the very star the practice was that the tenants paid rent after a period of 3 months in one instance period of 4 months it could, therefore, be presumed that the landlord had repeatedly condoned the default. Even though the landlords could not under the law agree to vary the mode of payment of rent as provided by the Ordinance, they had acquiesced in the mode‑ of payment of rent and had waived their rights with regard to the legal and usual mode of payment of rent. In the circumstances, no exception could be taken to the Rent Controller being satisfied that by agreeing to accept Ten periodically the landlords had made the tenants to believe that the rent was not to be paid every month. On being so satisfied the learned Rent Controller exercised his discretion against directing eviction of the tenants, although default on their part was proved. I therefore, find that the Firs Appellate Court was not justified in interfering with the discretion exercised by the Rent Controller. I accordingly allow the appeal and set aside the order of the learned First Appellate Court under appeal and restore the order of learned Rent Controller dated 30th July, 1975, with the result that the respondents' rent application stands dismissed however, there will be no order as to costs. M. Y. M. ‑‑‑