P L D 1978 Lahore 862 (PLP)

This is a tenant's second appeal under, section 15 (4) of West Pakistan Urban Rent Restriction Ordinance, 1952. He has been ordered to be evicted on grounds of personal requirement' of the respondents landlords and the default in payment of rent.

2. With regard to the first ground learned counsel has analysed the evidence to show that the findings of bona fide requirement in favour of the respondents are incorrect. On the second -question learned counsel has argued that the appellant always tried to tender rent on time but the respondents used to refuse it, leaving no alternative for the appellant except to send the rent through money orders. He has cited examples with reference to the receipts submitted by the appellant before the Rent Controller. Lastly it has been argued that sufficient evidence was led by the appellant to prove a practice changing the terms and conditions of tenancy that instead of monthly payment the parties had impliedly agreed to accept lump sum payments. Therefore, according to the learned counsel, the appellant could not be evicted on ground of default in payment of rent. Reliance has been placed on Mehrban Ali v. Haji Muhammad Kasim (P L D 1976 Lah. 1052).

3. After hearing the learned counsel, I do not find any justification for setting aside the concurrent findings of facts on the two questions: One, bona fide requirement of the respondents and two, the actual default in payment of rent.

4. 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 the alleged practice. If there was any tacit agreement between the parties not to pay the rent in time on monthly basis, there would be no need for the appellant to tender the rent on monthly basis and there would be no refusal. The pleas taken by the appellant in this behalf are self contradictory. It is the appellant's own case that the respondents refused to accept the tender of lump sum rent. If there would have been any implied consent on the part of the respondents for lump sum. payment he would not have refused to accept the tender of rent. The ruling cited by the learned counsel is of no avail to the appellant. Their Lordships of the Supreme Court have, in somewhat similar cases, taken a view which does not support the appellant's contention. See Syed Riaz Ali v. Shabbir Ahmad Khan (1971 S C M R 598) ; Messrs Textile Training Company Ltd. v. Syed Jalilur Rehrnan and 7 others (1972 S C M R 384) and Muhammad Aslam v. Noor Muhammad (1973 S C M R 606). In the last cited ruling their Lordships were pleased to examine the legal aspects of the controversy. At page 608 of the report, it was observed as follows :

"Another aspect of the case is that the appellant was required to pay rent by the 5th day of every month as stipulated in the rent deed Exh.

27. If he failed to pay rent within fifteen days after expiry of the date fixed in the agreement of tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law." After laying down the above law their. Lordships further observed that the Rent Controller could however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In such a situation the default might not be wilful and deliberate and the Rent Controller might not direct eviction ; because it is discretionary with the Controller not to direct the eviction, in individual cases, despite the default having been proved. The conclusion that can safely be drawn from the ruling of their Lordships is that although such a practice could not change the terms of tenancy nor the legal liability of the tenant to eviction could be affected b such conduct the same could be utilized for invoking the discretionary power of the Controller to decide against eviction in case the default is not wilful. In this case both the learned Rent Controller as also the learned lower appellate Court after careful analysis of the default committed by the appellant came to the conclusion that he was liable to eviction. No justification has been made out for interference with exercise of discretion. The appeal is dismissed in limine. S. A. H. Appeal dismissed.