1986 PLP 543 (CLC)

Mrs. Alima v. Ameer All P L D 1984 S C 32 and 1971 C L C 71 ref. Faizuddin for Appellants. Nemo for Respondent. Date of hearing: 17th November, 1985. This appeal is directed against the order of Miss Mahjabeen, Senior Civil Judge and Rent Controller, XII, Karachi, dated 31‑1‑1983, whereby she dismissed the ejectment application under section 15, subsection (2) of the Sind Rented Premises Ordinance, 1979 filed by the appellants. Appellants are admittedly the owner and landlord of the building known as Makki Manzil on Plot No. W.O: 5‑22/6, Mission Road, Karachi, and the opponent is their tenant in respect of tenement No. 5 on the monthly rent of Rs.25.50. Appellant No. 1 Hap Mohiuddin, is said to have expired. His only L.Rs. are appellants Nos. 2 and 3, who are already on record. An application has been made for deleting the name of appellant No. 1 which is still pending. The deletion of the name of appellant No. 1 will be absolutely formal and will not effect the appeal one way or other. The opponent is alleged by the appellant to be a habitual defaulter and irregular in payment of rent. He has not paid the rent from January, 1976. The respondent denied in his written statement that he was a defaulter. He has alleged that on the contrary it was the appellants who used to come to collect the rent at their leisure. They had not came to collect rent after the last payment which was made in December, 1975, vide rent receipt Exh. B‑

1. He has alleged in his deposition that the appellants had refused to collect the rent and demanded that it should be enhanced ann on his refusal to do so his water connection was discontinued and then this ejectment application was filed on 11‑1‑1981. Mr. Faizuddin, Advocate for the appellant is present and he has been heard at length. Respondent Muhammad Deen has chosen to remain absent in spite of service. The Court had waited for him upto 12 noon but neither he has turned up, nor any Advocate has appeared on his behalf. From the evidence that has come on record it is quite clear that the last payment of rent was made vide receipt Exh. B‑1 and it was upto the month of December, 1975. Thereafter, no rent has been received by the appellants in respect of the premises in dispute. Thus, there is non‑payment of rent for a period of more than 60 months, which is a glaring instance of culpable default. The allegation of the respondent is that appellants had refused to collect the rent and demanded it at enhanced rate. Whereas the contention of the appellants is that the respondent had himself failed to make payment in spite of repeated requests. The learned Rent Controller while discussing allegation of the respondent has observed that the same is supported by Exh. A.3 which is an order passed by Second Class Civil Judge, Karachi, XXIII on injunction application, dated 14‑3‑1981. I have gone through the order. There is nothing in this order which can show that the appellant had refused to collect the rent or had demanded enhanced rent or that the. respondent was not a defaulter. It is the duty of the tenant to go and pay the rent to the landlord. He cannot plead to the contrary. The second finding of the Controller that the rent tendered by the money order had reached the appellant before service of notice in this case which was refused and, therefore, deposited in Court also was not of any avail to the respondent, because the default once made cannot be washed away by subsequent tender until and unless the B landlord accepts the same and thereby waives the default. Although the respondent has not contested the appeal nor the record shows that any such plea was taken by or on his behalf but, even if it is assumed for the sake of argument that the appellants were receiving the rent of several months in lump sum and, therefore, it would appear that a practice had developed of accepting the rent for several months at a time. It is sufficient to point out that the plea of payment of rent in lump sum is of no avail now in view of number of pronouncements made by this Court and the Supreme Court from time to time. Reference is made particularly to the one reported in Mrs. Alima v. Ameer Ali P L D 1984 S C

32. Moreover, it is pointed out that before us there is no material to show that there existed any such consistent practice of receiving the rent in lump sum by the appellants. The appellants may have accepted lump sum on certain occasions to avoid going to the Court or out of sheer kindness. However, the respondent cannot be allowed to take advantage of his own fault and misconduct. One or two solitary receipts of rent of more than one month cannot be construed as a practice between the parties of receiving rent in lump sum so as to change the statutory obligation of the respondent to pay rent from month to month. Similar grounds were taken up in First Rent Appeal No. 234 of 1983 by another tenant in an appeal against the present landlord and had been repelled by my learned brother Mr. Justice Saeeduzzaman Siddiqui, J. In another ruling reported in 1971 C L C 71 my learned brother Mr. Justice Sajjad All Shah, has held that the respondent was bound to pay rent for each month when due unless there is an agreement to the contrary between the parties. It was further held that a tenant cannot be allowed to take the plea of periodical acceptance on the basis of practice or oral agreement between the parties. The parties cannot contract themselves out of the provisions of law or plead practice contrary to law. I am, therefore, of the clear view that the learned Rent Controller was not justified in refusing the ejectment of the respondent. Hence I allow the appeal and set aside the order of the learned Controller and direct the respondent to hand over the vacant possession of the disputed premises to the appellants Nos. 2 and 3, within 60 days of this order. H . B . T . Appeal allowed.