1984 PLP 781 (MLD)

Hassan Mahmood Baig for Respondents. Date of hearing: 13th May, 1984. This second appeal is directed against the judgment of District Judge Hyderabad, dated 23-9-1980 in Rent Civil Appeal No.269/78, directing the ejectment of the present appellant on the ground of default having been proved. The Rent Controller in R.C. No.6/7' had held that there was no wilful default in payment of rent and hence the ejectment was not ordered. The facts are not very much disputed in this case. The appellant i5 in occupation of Shop Premises No.C.S. 776 Ward A Shahi Bazar Hala which is owned by the respondent. The rent had not been paid from 1st of January, 1976 but Money Order for six months rent was sent but it was refused by the respondent. Another Money Order for rent of 1st January, 1976 to 31-12-1976 was sent in 1977 but the same was also refused. It is admitted position that no rent for January, or February, 1977 had been paid by the appellant. On 4-4-1977 the predecessor of the respondents namely Muhammad Saleh filed application for ejectment on the ground of default in payment of rent for subletting and for personal use. However, the application was dismissed by the Rent Controller on the finding that there was practice of accepting 6 months rent, but the District Judge granted the same only on account of default in payment of rent having been proved, as he had come to the conclusion that there was no uniform practice of tender or acceptance of 6 months rent. Mr. Suleman Kassam has raised two submissions before me one was that a practice had developed of accepting rent of six months and the same is admitted by the deceased Muhammad Saleh in cross- examination where he admitted that he used to accept six months rent in account of ignorance of law. This admission is riot an evidence of practice but is simply shows that the L/R had shown grace. It is an admitted position in this case that rent for the period of 12 months from January, 1976 to 31-12-1977 was not paid by the appellant in time but two Money Orders were tendered, once of six months rent and the other of 12 months rent but both were refused by the respondent as the default had taken place. There was no agreement alleged between the parties in respect of the receipt of rent for six months. Mere act of tenant cannot give the effect of agreement. In P L D 1984 S C 32(37) the following observations in respect of practice of accepting rent in lump sums are very pertinent:

"The alleged practice of the Attorney of the landlady of collecting accumulated rents is of no avail in explaining these delays and defaults as held by this Court in Tirmizi's case. Even this explanation cannot be advanced for the default for the period October to December, 1970, after receipt of the notice Exh.P.10. The Rent Controller was clearly in error in holding that there was no persistent or wilful default and in ignoring the taw laid down by this Court in Tirmizi's case". "It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him." It is, therefore, obvious that the Rent Controller in this case had acted wrongly in coming to the conclusion that there was no wilful default in the case. In this case particularly one fails to understand as to why the appellant did not start depositing rent in Court or start sending monthly rents by Money Order to the respondent as soon as his first money-order for six months rent of 1-1-1976 to 30-6-1976 had been refused by the landlord making it very apparent that the landlord had started insisting on his right. It is further surprising to note that even in respect of the rent of January, 1977 which had become payable on 1-2-1977 and was payable in law by 31-3-1977, the appellant did not make any effort to pay the said rent in spite of the fact that two Money Orders have been refused. The non-payment of rent was thus clearly established and the sending of money-orders of six months and 12 months did not have the effect of wiping of the effect of the non-payment of rent in respect of the rent of January to December, 1976. The rent was payable monthly and should have been paid a such. Mr. Suleman Kassam then submitted that this was a fit matter where discretion should be exercised in favour of the appellant, as it was exercised by the Rent Controller. However, the Supreme Court in the above cited case of P L D 1984 S C 32 had observed that it was clearly an error on the part of the Rent Controller to hold that there was no persistent or wilful default aid that such order was not exercise of discretion by Rent Controller but a finding of fact demonstrably incorrect. In these circumstances it is hardly open to me now to exercise discretion in favour of the appellant who has been insisting that he was entitled to pay rent in six months time because the landlord had accepted the same in that fashion previously. This second appeal is, therefore, found to be incompetent and hereby dismissed However, since it is difficult to arrange for shop premises. I would grant 6 months' time to the appellant to vacate the rises subject to the condition that he goes on depositing monthly rent with the Rent Controller. In case the appellant does not deposit the rent of one month in time or fails to vacate the premises after six months from today then a writ of possession will be issued directly against him. M.I Appeal dismissed.