1985 PLP 409 (MLD)

Sabihuddin Ahmad for Respondent. Date of hearing: 8th October, 1984. The respondent filed an application for ejectment against the appellant in respect of ground floor premises bearing No. 1-A/6/5 Nazimabad, Karachi, The only ground for seeking ejectment is that the appellant has defaulted in payment of rent from April, 1980 to October, 1980. The appellant denied the allegation and pleaded that it was a continuous established practice of the respondent to collect the rent through his attorney, according to his attorney's convenience and whenever he came the rent was paid. It was explained that as the address of the respondent was not available he could not deliver it personally or by money order. The learned Controller rejected the plea and allowed the ejectment application. Mr. Abdul Muqtadir Khan, the learned counsel for the appellant referred to the tenancy agreement between the parties to show that the address of the respondent was not mentioned in it. He also referred to various rent receipts issued during the years 1977 to 1979 to show that the rent was received after interval of several months. In the background of these facts the learned counsel contended that as the respondent's attorney used to collect the rent at his convenience and as no address of the respondent was available with the appellant, as the said attorney did not come to collect the rent after the month of March, he could neither remit the rent nor deposit the same in Court. The address of the respondent is not mentioned in the agreement but the appellant has been a tenant from the year 1972 and during the period of eight years when he had been paying to the said attorney it does not seem reasonable that the appellant would not have come to know about the address of the respondent or his attorney. The other portion of the premises was also rented out and there is nothing on record to show that the other tenant was also not aware of the respondent's address. In any event the tenant in default is equivalent to a debtor who should find his creditor. The law provides various modes of payment of rent which can be followed to avoid default. If the whereabouts of the landlord is root known, the tenant can deposit the rent in Court which shall be deemed to be proper tender. Mr. A. Muqtadir Khan, the learned counsel contended that as the address of the respondent was not known it was not possible to even file an application for deposit of rent. The contention is misconceived because if the landlord adopts tactics to keep himself away from the tenant and thus Avoid accepting rent, the tenant can file an application disclosing these facts and seek permission to deposit the rent in Court. However if these allegations against the landlord turn out to be incorrect and false then it will amount to an act of bad faith on the part of the tenant. Admittedly the appellant did not adopt this procedure and, 'therefore, he has not succeeded in explaining that the default was due) to reasons beyond his control. The learned counsel for the appellant contended that as rent was being paid after intervals and collected by the attorney of the respondent as and when he turned up, no wilful default has been committed because appellant was under the impression that the attorney will come and collect the rent. The learned counsel for the respondent has referred to Haji Muhammad Kassim v. Maharban Ali 1983 S C M R 1205 where after review of several authorities in which practice to collect the rent in lump-sum after certain intervals was pleaded and held to be contrary to section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, the following observation was made:-- "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 tenant 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 grounds raised by the learner counsel for the appellant are not sustainable. The appeal is dismissed and the appellant is allowed four months time to vacate the disputed premises. M. I.??? Appeal dismissed.