1985 PLP 1141 (MLD)

The respondent filed an ejectment application against the appellant in respect of top floor tenament No. 2-MI6 P.E.C.H.S. Karachi, on the ground of default in payment of rent and other charges. The premises was rented out to the appellant at the rate of Rs.100 p.m. plus Rs.5 as water charges. The electricity charges were paid on the basis of consumption. The respondent alleged that the appellant is a tenant since August, 1970 and has been irregular in payment of rent which was realised from time to time by filing distress warrant proceedings, and that he has not paid rent from May, 1975 till the filing of ejectment application on 28-10-1975. In the written statement the appellant denied that default has been committed by him. He further pleaded that the Distress Warrants were filed to harass the appellant, and that the respondent wants to eject him by force and illegal means. He further pleaded that the respondent has refused to accept the rent which was tendered to him regularly. On the basis of the pleadings the learned Controller framed the following issues:- (1) Whether the tenant (appellant) committed default in payment of monthly rent and other charges due against him' ? (2) What should the order be? The learned Controller held that the appellant has committed default in payment of rent and ordered for his eviction. The appellant filed appeal before the learned lst. Appellate Court which was dismissed. It may be stated at the outset that in the ejectment application it was alleged that the rent has not been paid from May, 1975 but in his evidence the respondent has stated that he has received rent upto May, 1975 and, therefore, the default has to be considered in respect of period commencing from June to September, 1975. Mr. Abdul Wajid Wyne the learned counsel for the appellant has contended that during the period of tenancy a practice had developed between the parties whereby the rent was received by the respondent after several months and, therefore, no wilful default has been committed. The plea of practice to pay the rent after long intervals which may have, led to create a belief in the mind of the appellant that the rent is to be paid after intervals and not monthly has not been pleaded in the written statement. The only plea taken in the written statement is that the respondent has been harassing the appellant by various means and that the rent was tendered regularly and was refused by the respondent. This plea in the written statement is completely different from the one in respect of which evidence has been led by the appellant. The law does nut permit variance between pleading and proof. No new plea can be Introduced as a defence by any party. As the appellant has not pleaded such practice, which in my opinion, cannot in view of the authoritative judgments of the Supreme Court, be a legal defence in such cases, he cannot be allowed to avail this ground for defending this case. Both the Courts below have concurrently found that the appellant has been irregular in payment of rent, no practice has been established and that he has defaulted in payment of rent from June to September, 1975. According to the learned counsel for the appellant in view of P L D 1984 Kar. 373 the determination of default is a mixed question of fact and law, and therefore, 'the High Court can in second interfere with the 'finding. There can be no cavil With the proposition laid down, by this authority, but the fact remains that the second appellate Court will interfere with the finding of fact in cases where it has been arrived at by ignoring the material evidence on record or completely misreading it None of these grounds are available in the present case. The question whether a tenant has paid the rent or not is purely a question of fact, but whether on such facts the provision of section 13 of the Sind Urban Rent Restriction Ordinance can be applied will be a mixed question of law and fact. Here both the Courts have come to the conclusion that the appellant has not paid rent from June to September, 1975. According to Mr. Wyne the default is only in respect of June which in view of the grace period of 60 days allowed under law, the appellant has delayed it for about 60 days more and it should be condoned. The contention of the learned counsel is mis-conceived. Such delays cannot be condoned straight away unless it is shown that no wilful default has been committed. In this regard reference can be made to P L D 1985 Kar.

45. The appellant has not made out a case for condoning the delay. Mr. Wyne the learned counsel has contended that in view of the practice between the parties, the discretion should have been exercised in favour of the appellant. In this regard the learned counsel has referred to P L D 1978 Lah. 862, P L D 1976 Lah. 1052, 1982 C L C 398 and 1981 C L C

793. In these cases it has been held that where the default is not deliberate and wilful discretion may be exercised by the Controller in favour of the tenant. In the present case the only ground for exercising discretion that has been pressed in service by the learned counsel is that a practice had developed between the parties. As observed earlier this plea is not available to the appellant. In any event the letters produced by the respondent and admitted by the appellant which were written by him establish that he has been paying) rent irregularly and has been always apologitic in tendering the rent late, and seeking indulgence and extention from the respondent. These letters clearly falsify the plea taken by the appellant which even otherwise cannot be entertained. So far the practice is concerned suffice to say that the dictum laid down in P L D 1984 S C 32 seems to be final and the appellant's plea of practice between parties has no merits. The appeal is, therefore, dismissed. Three months time is allowed 'to the appellant to vacate the premises. He should pay the rent upto the date he vacates the premises. H. B. T. Appeal dismissed.