1986 PLP 380 (CLC)

(v) His Holiness Dr. Syedna Muhammad Burhanuddin Saheb v. Messrs Abdul Rehman Abdul Ghani P L D 1981 Kar. 164.‑‑Mr. Z. C. Valliani, J held as follows:‑‑ "The periodical acceptance of accumulated rent without any objection by the appellant, by itself did not amount to alteration of terms and conditions of written tenancy agreement if any or the provisions of law for payment and tender of rent by the tenants as laid down by West Pakistan Urban Rent Restriction Ordinance, 1959. The parties cannot contract themselves out of provisions of law, nor can any party plead a practice contrary to law. Tenant required by law to pay rent by specified time cannot allege contract or practice to get out of such obligation. Mere fact that the landlord accepted delayed payment of rent in past cannot be said to have given rise to a practice for tenant to make delayed payments in derogation of provision of section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959. In this view of mine, I am fully supported by the authority laid down by the Supreme Court reported in 1980 S C M R 506 as well as 1980 S C M R

601. The learned 1st Additional District Judge, Karachi has mainly relied on the decision reported in P L D 1972 Kar. 220, which has been disapproved by the Supreme Court, vide case reported in 1980 S C M R

601. The law laid down by these two authorities of the Supreme Court is binding on me and I am also in respectful agreement with the reasoning given in the said authorities." (vi) Rais Ahmed Barqi v. Shaikh Abdul Qayyum 1984 C L C 1057.‑‑Mr. Ali Nawaz Budhani, J. held as follows:‑‑ "Law quoted above shows that mere indulgence on the part of the landlord by accepting rents in lump sum does not invariably establish the fact that the tenant shall pay the rents‑at‑will and at his own convenience." (vii) Mahboob Ali v. Abdul Manan and 2 others 1984 C L C 1201.‑‑Mr. Ajmal Mian, J. held as follows:‑‑ "It is evident that consistent view of the Supreme Court has been that a tenant cannot absolve himself from the payment of rent in terms of the Rent Ordinance on the basis that the landlord had accepted accumulated rent previously a few times. If the tenant allows accumulation of rent on the assumption that the landlord would accept the same as he had done previously, he does so at his peril of being ejected." Mr. Ghulam Muhammad Ibrahim the learned counsel for the respondent has cited case of Ghulam Abbas Adamali Jeevaji,v. N. Hassan Ali & Co. P L D 1984 Kar. 373 in which Mr. Nasir Aslam Zahid, J. agreed with the enunciation of the principles by Mr. Aftab Hussain, J. in the case of Rifaqat Ali v. Muhammad Bashir Qureshi P L D 1979 Lah. 444 and observed as follows:‑‑ "If the only evidence on record is that previously the tenant has paid or the landlord has collected rent for long periods, such evidence would not standing alone be sufficient for exercise of discretion in favour of the tenant. Apart from such evidence, there must be other evidence from which it could be implied that the landlord had made the tenant believe that the rent was not payable by him every month in which case the default would not be wilful or deliberate. It is in the light of the above principles that it has to be seen whether, on the basis of the evidence on record in the case, the exercise of discretion by the rent control authorities in favour of the tenant was justifiable in law." The Hon'ble Supreme Court in the following cases laid down the principle: ‑‑ (I) Sh. Muhammad Hassan & Co. v. Mian Mahmood Ahmed Khan 1975 S C M R 355.‑‑The Hon'ble Supreme Court while declining to grant leave held : "The learned Single Judge has rightly observed that the implied contract on the basis of the aforesaid practice was not pleaded by the petitioner in his written statement, and that in any event such a contract was contrary to the provisions of section 13(2) of West Pakistan Urban Rent Restriction Ordinance (VI of 1959), and, therefore, the former could not prevail over the latter. The petitioner has failed to controvert this legal proposition. The petitioner claims benefit under section 13 of the said Ordinance and he can, therefore, do so only if his case does not fall within the mischief of section 13(2) of the Ordinance." (ii) Abdul Rashid v. Saleh Muhammad 1980 S C M R 506‑P L D 1980 S C 431.‑‑The Hon'ble Supreme Court while declining to grant leave to appeal observed:‑‑ "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 a 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 the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmed Khan 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." (iii) Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601.‑‑The Hon'ble Supreme Court while declining leave to appeal held as follows:‑‑ "As this observation was followed in Muhammad Shafi v. Zahir Hussain and another, we would clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J. (as he then was), gave a warning in Muhammad Alam's case that a practice by a tenant to pay rent at irregular intervals make him liable to eviction, because such a practice was contrary to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Then, after giving this warning, his Lordship went on to make an observation that the Court could condone delay in the payment of rent if the landlord had agreed 'to accept rent periodically.' Now, if a landlord agrees 'to accept rent periodically' this can only be the result of a fresh agreement between him and the tenant, and if he enters into such an agreement, he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month. However, as was explained in 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 hold the petitioner's case, because he had 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." (iv) Mrs. Alima Ahmed v. Amir Ali P L D 1984 S C 32.‑‑The Hon'ble Supreme Court while allowing appeal of the landlord held as follows:‑‑ "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)." (v) Messrs Abdul Rahim Abdul Ghani v. His Holiness Dr. Syedna Burhanuddin.‑‑The petitioner filed petition for special leave to Appeal No. K‑5 of 1981 against the Judgment and order of this Court, dated 9‑9‑1980 C.L. Appeal No. 122 of 1974. The appeal filed by the landlord was allowed by Mr. Justice Z. C. Valliani, J. (as he then was) and directed the petitioner to vacate the premises and put the respondent in possession of the same. The Honourable Supreme Court granted leave to appeal to the petitioner and while granting leave to appeal observed as follows:‑‑ "In seeking leave to appeal the petitioner contended that in the absence of demand and refusal to pay the rent, and the collection of rent periodically in lump sum eminently shows that the respondent condoned the default and, accordingly, the High Court was in error in interfering with the exercise of discretion by the First Appellate Court relying principally on Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 S C M R

601. This contention needs consideration as the facts in the cited cases are distinguishable. Accordingly we would grant leave to appeal to the petitioner." Apart from the above cases, there are some other cases which are as follows: ‑‑ (A) Sajjad Ali Khan and 2 others v. Peer Bux G. Mehar P L D 1972 Kar. 220.‑‑Mr. Imdadally H. Agha, J. (as he then was) held as under:‑‑ "Landlord habitually accepting arrears of rent periodically and in lump sum from tenant‑‑Tenant, in circumstances, could not be said to have wilfully defaulted in payment of monthly rent." (B) Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56.‑‑Mr. Dorab Patel, J. (as he then was) held as follows:‑‑ "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." (C) Syed Jalilur Rehman and 7 others v. Mst. Rashida Begum and 10 others P L D 1976 Kar. 105.‑‑Mr. M.A. Rashid, J. held as follows:‑‑ "There is admittedly no written agreement of tenancy between the parties. If the tenant claims that the tenancy is not monthly, he has to show then, as a matter of specific fact, what was the nature of such tenancy. He has to show if, for example, the rent was payable after every two months or six months, or so. This fact he has to specifically plead, and then prove, because in that case the onus is entirely upon him. The mere assertion that the rent is accepted at long intervals, without specifying the exact length of such intervals, does not indicate the nature of such tenancy." (D)Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832.‑‑Mr. I. Mahmud, J. held as follows:‑‑ "The distinguishing feature of the present case is that the tenant did not set up any implied contract or any practice justifying her payment of rents in lump sum amounts. The fact was that the landlord's Bank account showed that the tenant was depositing rents for 2 or 3 months, at a time, in lump sum, because of the circumstances created by the landlord himself." (E) Lady Doctor S.B. Zeman v. Khalid Farooq and 3 others P L D 1978 Lah. 803.‑‑Mr. Muhammad Afzal Zullah, J. (now Judge Supreme Court) held as follows:‑‑ "There is only one receipt showing that one lump sum amount was paid as rent for a period of six months. That is not sufficient to show that parties by their conduct or through practice or consent, changed the terms of tenancy so as to make periodic lump sum payments of rent to the landlord, as lawful discharge of the liability to pay the rent monthly and in time." (F) Muhammad Shafi v. Zahir Hussain and another P L D 1978 Lah.862.‑‑Mr. Muhammad Afzal Zullah, J. (now Judge Supreme Court) further observed as follows:‑‑ "The argument of the learned counsel that there was change in the terms and conditions of tenancy with regard to monthly payments is also without force. If the appellant used to tender rent in time and the respondents used to refuse to accept the tender and thereafter, the appellant would send the rent through money order, this would negate alleged practice if there was any tacit agreement between the parties not to pay the rent in time on monthly basis and there would be no refusal." (G) Haji Fazal Ellahi Kushtiwala and 2 others v. Abdul Khaliq 1979 C L C 76.‑‑Mr. Fakhruddin G.Ebrahim, J. (as he then was) held as follows: ‑‑ "Coming to the second contention of the learned counsel it will at once be noticed that there was no averment in the written statement that the rent was to be paid periodically in lump sum which ought to have been pleaded for that would be a departure from the legal obligation of the tenant to tender rent at the end of every calender month. It was contended that such practice can be inferred from the evidence. To be a practice it must be sustained for a reasonable period of time and consciously adopted. In the present case only on one occasion the landlord accepted in lump sum the arrears of rent for the period 1‑1‑1969 to 1‑5‑1969. Previous such occasion was following the notice under section 30 but is of no consequence for the law gave time to the tenant to pay rent within three months. The practice, therefore, has not been established." (H) Amanat Khan v. Mst. Begum Jan and another 1979 S C M R 608.‑‑The Honourable Supreme Court held as follows:‑‑ "There mere fact that at times the rent was paid by the petitioner after two three and four months in lump sum did not absolve him of his liability in law." (I) Ali Hassan v. Abdul Qadeer 1980 C L C 912.‑‑Mr. Zaffar Hussain Mirza, J. (now Judge Supreme Court) held as follows:‑‑ "A perusal of these particulars shows that the respondent had paid rent in the past not on any particular pattern but with irregular intervals at different occasions, sometime for two months and sometimes for 3, 4 and 6 months at one time. Additionally it is also clear that the receipt show that the respondent paid the rents after remaining in arrears for long period." (J) Haji Mujtaba Khan v. Muhammad Umer 1980 C L C 1073.‑‑Mr. Zaffar Hussain Mirza, J. (now Judge Supreme Court) held as under:‑‑ "The Rent Restriction Ordinance, 1959 has extended protection to the tenants against eviction subject however, to the condition that the tenant pays rent regularly. Thus, according to section 13, the tenant is required to pay or tender rent due by him within 15 days after the expiry of time fixed in the agreement of tenancy with his landlord and in absence of any such agreement within 60 days from the period for which the rent is payable. As held in Muhammad Aleemullah v. Ziaul Islam the modification of the statutory obligation can only be established by proof of the agreement with particulars placed in the written statement by the tenant. In the written statement by the tenant. In the present case no such particulars were pleaded in the written statement showing any arrangement having developed through the course of conduct on the part of the appellant in modification of the statutory obligation of the respondent. All that has been pleaded is that rent bills were issued t0 the tenants including the respondent irregularly and rent was collected" as and when it suits him (i.e. applicant landlord)". In view of the law discussed above and the facts of this case there is no sufficient evidence on record hold that the parties by their conduct had mutually modified the obligation of the tenant to pay rent regularly as provided by law." (K) Malka Begum v. Mehr Ali Hashmi 1984 S C M R

755. The Honourable Supreme Court while allowing appeal of the landlord observed as follows:‑‑ "it is by now well‑established that tender of rent after the period prescribed by law, is no proper tender and that the tenant is guilty of default though the acceptance of delayed payment can mean a condonation of that default. See Fida Hussain v. Muhammad Ibrahim and Altaf Din v. Khadim Hussain. However, since the Controller has a discretion to direct or not the ejectment of the tenant in spite of the latter's default, the conduct of the parties may be of relevance. A defence based merely on the ground of the landlord receiving or collecting rents at intervals of several months has, however, not been considered as a good defence. See Textile Trading Co. Ltd. v. Jalilur Rehman and Muhammad Hasan & Co. v. Mahmood Ahmed. In any case, since the tenant is under a legal obligation to pay rent to the landlord and not that the landlord should go to collect the rent, the onus to establish the practice as a defence lies heavily on the tenant. In the case in hand, the landlord had denied the practice, in repudiation of which the tenant had produced eight receipts Exhs. 0/2 to 0/9, only four of which according to learned counsel, showed receipt of intervals as given below:‑‑ (i) Exh 0/5, dated 5‑11‑1968 for three months, i.e. 8/68 to 10/68; (ii) Exh. 0/4, dated 14‑3‑1969 for three months, i.e 12/68, 1/69 and 2/69; (iii) Exh 0/2, dated 16‑1‑1970 for three months, i.e. 10/69 to 12/69; and (iv) Exh. 0/6, dated 10‑7‑1970 for two months i.e. 5/70 and 6/70. The other receipts relate to rents for a single month. The tenant, who has been in the property for more than twelve years, was not able to produce any other evidence to establish the practice. On the contrary, he admitted in his cross‑examination: 'It is correct to suggest that all the receipts with me, which have not been produced, are receipts for each single months.' On such evidence, the defence based on the plea of the landlord's practice of collecting rent at intervals was not a good defence." It is apparent from the decisions referred as above that parties could not contract themselves out of the provisions of section 13(2)(i) of the repeated Ordinance, 1959, by establishing a different practice with regard to the mode of payment of rent, but it is significant to note that there is not a single instance of rent being paid monthly and no documentary evidence e.g. counter‑foil or receipt book have been produced by the appellant to show that he ever received rent for a single month. The respondent has taken a specific plea in written statement as well as adduced evidence that the appellant used to collect the rent in person at his own convenience. The‑ appellant admitted in his affidavit‑in‑evidence that he used to collect rent after interval of 2, 3 or 4 months. Not only this but subsequently tendered the rent which was refused. This shows that there is no deliberate or wilful default. While no doubt, the observations of the Hon'ble Supreme Court are entitled to the highest respect, in my opinion, they do not apply to the present case. The learned counsel for the respondent has contended that appellant disentitled to any equitable relief even if default was found. His contention is that in February, 1977 the respondent again went to tender the rent for the period October, 1976 to January, 1977 to the appellant which he refused. to receive on the ground that since the respondent had not supported him in a police case relating to a dispute between him and some tenant on the first floor of the building in which the respondent resides, he would not accept the rent and take, legal proceedings against the respondent. The appellant admitted in his cross‑examination that there had been his dispute with another tenant in the months of November or December, 1976. It seems that the appellant has not come to Court in clean hands and as such he is not entitled to an equitable relief. It seems that the Rent Controller on the evidence before him, held that practice of payment of rent was established, therefore, he exercised discretion and came to the conclusion that the respondent cannot be termed as defaulter. I am also of the view that the respondent had not committed wilful default and is not liable to be evicted and the Rent Controller has exercised his discretion judiciously and properly. I, accordingly, dismiss the appeal and confirm the order of Xth Senior Civil Judge and Rent Controller, Karachi. In the peculiar circumstances of the case the parties will bear their own costs. A. A. Appeal dismissed.