1983 PLP 1205 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑ Haji Muhammad Qasim petitioner, sought leave to appeal against the order of the Lahore High Court, dated 27‑1‑1976, dismissing his S. A. O. in a case under section 13 of the West Pakis(an Rent Restriction Ordinance, 1959.

2. We issued notice to the respondent and after granting Leave heard the matter as appeal.

3. The facts leading to the appeal, briefly, are that Muhammad Qasim appellant let out his shop situated in Multan to Meharban Ali, respondent, at a monthly rent of Rs. 200 on 6‑3‑1965. On 1‑9‑1973, the landlord filed an ejectment application against Meharban Ali, inter alia, on the ground of default in payment of rent from April, 1973 to August, 1973 i. e. for a period of 5 months. Meharban Ali contested the applica tion and took up the position that the landlord used to accept two or three months rent at a time in lump sum which led to a practice of payment of rent periodically and that he had tendered the rent for five months in lump sum and as such he had not committed any default in payment of rent. At the trial he produced three receipts issued by the landlord, in support of his aforementioned assertion, showing that the landlord had received rent in lump sum for the shop in question for 2 or 3 months at a time: He also contended that he had Paid rent for April to June, 1973, amounting to Rs. 600 but the landlord did not issue him any receipt and that, thereafter, he went to the landlord to pay rent for the month of July, 1973, but the landlord again refused to accept the same whereupon he sent an amount of Rs. 800 as rent through money order but the landlord did not receive the same.

4. The learned Rent Controller found the issue of default in landlord's favour and ordered respondent's eviction. Meharban Ali challenged this order in appeal before the District Judge who by his judgment dated 28‑1‑1975, dismissed the same. He then filed an S. A. O. before the High Court which was accepted vide the impugned order dated 27‑1‑1976.

5. The main. ground on which S. A. O. was accepted was that by producing 3 receipts showing that the rent was accepted by the landlord periodically After intervals of two to three months, Meharban Ali (Respon dent/tenant) had successfully established that the mode of payment of rent had been changed contrary to the terms of the agreement between them and that this alteration in the terms of the agreement can be taken into consideration in the respondent's favour. It was observed by the learned Judge in Chamber that:‑ "In the present case the terms and conditions of the tenancy, so tar as the payment of rent is concerned had been changed by the conduct of the landlord himself who had been accepting rent and who by his conduct gave impression to the appellant that if he pays rent even after some months, he would not commit any default .." In support of this observation the learned Judge in Chamber relied on Muhammad Alum v. Nur Muhammad (1973 S C M R 606), Muhammad Alimullah v. Ziaul Islam (P L D 1973 Kar. 56), Sajjad Ali Khan and 2 others v. Pir Bakhsh Ji Mehr (P L D 1972 Kar. 220) and Muhammad Shafi v. Iqbal Ahmad and another (P L D 1965 Lah. 23). The case of Muhammad Alam does not help the petitioner inasmuch as the acceptance of rent for the period 2 to 3 months by the landlord on three occasions in the present case does not necessarily show that he had agreed that the terms of agreement had been raised and he (Respondent tenant) could in future, pay the rent as and when he chose. The case of Alimullah also does not help the petitioner because in that case the learned Judge had observed that:‑ ....But even if a landlord receives rent at long intervals, this does not necessarily lead to the conclusion that it was in pursuance of an agreement not to receive rent at the end of every month. A landlord's failure to collect rent regularly may be due to some reasons ; pre‑occupation with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc. Therefore, both the written statement of the respondent and the evidence produced by him are not sufficient to prove the alleged agreement pleaded by him. On the other hand, not only did the appellant deny this alleged agreement, but he emphatically stated in his evidence that the rent of the shop had accumulated balance the respondent was always late in making payment in spite of demands ......... The view taken in Sajjad Ali Khan and Muhammad Shafi v. Iqbal Ahmad that where the landlord repeatedly accepts arrear of rent from the tenant in lump sum, periodically, the latter cannot be said to have wilfully defaulted in paying the rent if he failed to pay rent 6f any particular month in time, now stands over ruled by a decision of this Court in Abdur Rashid v. Saleh Muhammad (1980 S C M R 506) wherein relying on Syed Riaz Ali v. Shabbir Ahmad Khan (1971 S C M R 598) and Muhammad Hassan & Co. v. Mahmood Ahmad Khan (1975 S C M R 375) it was observed that: 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 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 tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmad Khan 1971 S C M R 593 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. In Muhammad Hassan & Co. v. Mahmood Ahmad Khan, where .the tenant had taken up same position namely that a practice has grown up to Pay rent in lump sum after certain intervals it was observed by this Court inter alia that in any event such a practice was contrary to S. 13 of the West Pakistan Urban Rent Restriction Ordinance, and therefore the former could not overrule the law." The reason for the above‑noted view has been succinctly summed up by this Court to Mst. Jun 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 me fact that the landlord accepts the rent from a tenant periodically does no mean that he does not desire or expect it 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. In view of what has been observed above, we cannot convert this petition into appeal and accept it with the result that order of respondent's eviction stands restored. The respondent‑tenant is, however, given four months' time to vacate the premises, subject to the condition that he shall do so voluntarily and shall also pay to the appellant landlord Rs. 800 within a week's time. S. Q. Appeal accepted.