1983 PLP 1754 (CLC)

5. On the pleadings of the parties the following issues were settled by the learned Controller :‑ (1) Whether the opponent has wilfully committed default in the pay ment of the rent ? If so what is its effect ? (2) Whether the applicant requires the premises for his bona fide personal use (3) What relief the applicant is entitled to ? Syed Hamid Hussain, attorney of the applicant respondent gave evidence on his behalf and produced the relevant documents etc. The appellant gave evidence on his own behalf. The learned Controller found issue No. 1 with regard to wilful default in the payment of rent the respondent. He allowed the application of the respondent for ejectment of the appellant and directed the appellant to band over‑ vacant possession of the demised premises within a period of 118 days from the date of his order. I have heard the arguments of the counsel for the parties and have also perused the record.

6. Mr. Akhtar Mahmud, the learned counsel for the appellant has stated that the finding that the appellant had committed wilful default in the payment of rent is arrived at without taking into consideration the fact that there was practice of payment of rent in lump sum which had been brought out on the record. He, therefore, argued that although there was admitted default in the payment of rent at the time that the ejectment application was filed the learned Con troller should have exercised his discretion in favour of the tenant as by the aforesaid practice the tenant had been under the impression that ‑ the landlord had agreed to the practice. In this respect be has referred to letter dated 28th September, 1973 addressed to the appellant by Syed Hamid Hussain, attorney of the respondent on the subject of arrears of rent which was written only about 11 days before the filing of the appli cation for ejectment. Since Mr. Yousuf Rafi, the learned counsel for the respondent bas also relied upon the aforesaid letter to show that there was default in the payment of rent and that the alleged practice bad been protested against and had not been acquiesced in by the landlord, it is considered necessary to re‑produce the same which. reads as under :‑ "You have been the tenant of the premises for a period of over six years. You will agree that in spite of your being, admittedly irre gular in the matter of payments of monthly rent I have seen trying to be more co‑operative with you and had been patiently waiting for a time when you could be in a position to improve the situation of clearing arrears, which still exists on account of rent. I would have, much against my wishes, continued to tolerate the situation so far as the arrears are concerned had not another situation arisen and the Landlord Mr. Saiyid Irtiza Hussain of whom I am the Attorney and had been dealing with in that capacity, is returning from his assignment in Malaysia after finishing his tenure and has a mind to settle down in Karachi permanently. Obviously he would need a residential accommodation and I would be grateful if you kindly make some arrangement to vacate the premises by the middle of next month which I believe is quite reasonable time for this purpose and vacate the portion under your occupation for bona fide and reasonable use of the landlord who has no other accommoda tion. I am sure you will realise the gravity of the situation and would part in happy and cordial atmosphere. In the meantime I am sure you will clear the outstanding arrears of rent as well according to the last statement of account sent to you on 23rd September, 1973 amounting to Rs. 4,035 ."

7. A perusal of the letter quoted‑ above would show that the appellant' had been irregular is the matter of payment of monthly rent which had if at all been only tolerated under protest .and that there were outstanding arrears of rent according to the statement of account sent to the appellant on 23rd September, 1973, amounting to Rs. 4,

035. The appellant had also produced statement of rent paid by him which is Ext. 24 on the record and which does not indicate any system or pattren of the alleged practice but beyond doubt indicates that default was committed and that the payment of rent were to say the least highly irregular. There is also evidence on the record to show that time and again the attorney of the landlord protested against the irregular payments and also that cheque issued by the tenant were sometimes dishonoured by the bank. Mr. Akhtar Mahmud, the learned counsel for the appellant bad retied on the decision of this Court in Sajjad Ali Khan and 2 others v. Peer Bux G. Mahar (P L D 1972 Kar. 220), on the point that the Controller has discretion to refuse ejectment of tenant in the circumstances of case justifying doing so in the interest of justice. In that decision there was reference to the practice of the landlord habi tually accepting arrears of rent periodically and in lump sum from the tenant. In the instant case however, as already stated there is no practice proved of payment for any particular period or confirming to any pattern. It cannot be said that there was practice of accepting rent for particular period of time. The alleged practice also could not be con sidered as such because the evidence on record shows that the landlord had never acquiesced in it and at the most had only tolerated the irregular payment as stated in the letter quoted above by "patiently waiting for a time when the tenant could be in a position to improve the situation of clearing arrears."

8. In Muhammad Alam v. Noor Muhammad (1973 S C M R 606) a decision of the Supreme Court, production of one solitary receipt showing lump sum payment of rent was not considered sufficient to lead to presumption that practice of receiving rent periodically was adopted by landlord. In the instant case since there is no pattern of even periodical payment made out in the statement of account the appellant had obviously failed to prove the alleged "practice." In the Supreme Court decision already referred to it was observed as under :‑ "In the present case the appellant failed to prove the alleged 'practice'. Indeed he said he paid rent "monthly, sometimes after two months or three months." Such a vague statement did not make oat a practice' which would deviate from the date fixed in the agreement of tenancy."

9. In Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum (1980 S C M R 601) a decision of the Supreme Court. where the contention was that the tenant paying rent at long intervals at the request of landlord's husband to suit his convenience, it was observed as under :‑ "Now, although the petitioner had categorically asserted in his written statement that the respondent's husband did not like to receive payments in small amounts, and although the payment of rent of a month or two would be the payment of a small amount, it is clear from his statement of accounts that out of the nine occasions on which the petitioner had paid rent, he had twice paid the rent of only one month, and he had twice paid the rent of only two months, therefore, this statement, pima facie, belies the petitioner's claim that the respondent's husband did not want to receive rent at the end of every month or two. Secondly, as the petitioner denied having been in arrears of rent at all and as he was emphatic that be was paying rent at long intervals at the request of the respondent's husband, it would follow that there would be no arrears of rent due from him whenever he made his payment of rent in lump sums. But, this statement proves that he was always in arrears of rent, and indeed there was never a time when he was not in arrears of rent." In the instant case also for the reason s already given, it cannot said that there was any settled practice with regard to payment of rent and the statement of account proves that the tenant was always in arrear of rent. It was further observed in the decision of case of Dr. Syed Waris Ali Tirmizi, referred to above as under :‑ "Now, if a landlord agrees "to accept rent periodically," this can only be the result of afresh agreement between him and the tenant, and if he enters into such an agreement he would no doubt, beyond by his representation to the tenant not to pay rent at the end of every month. However, as was explained is Alimullah's case. the burden of proving such an agreement between the landlord and the tenant is not to be inferred 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 Yaqoob 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."

10. In M/s. Tar Muhammad Janoo & Co v. Taharali and others (1981 S C M R 93) a decision of the Supreme Court in it was observed as under :‑ "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month." Under the circumstances stated above there is no weight in this appeal which is dismissed however, with no order as to costs. The appellant is hereby directed to hand over vacant possession of the demised premises to the respondent within a period of two months from the date of this order. K. M. A. Appeal dismissed.