MESSRS TAR MUHAMMAD JANOO & Co. vs TAHERALI AND Other

ORDER

ASLAM RIAZ HUSSAIN, J.-This petition is directed against the judgment dated 30-5-1979 of a learned Single Judge of the Sind High Court where by the second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was dismissed.

2. Briefly the facts of the case are that Messrs Tar Muhammad Janoo & Company (petitioners herein) were the tenants of Taherali, Amir Ali and Shabbir Hussain sons of Ahmad Ali Burhani (respondents) with respect to tenement No. 1 on the ground floor of a building bearing No. G. K. 8/5 situated opposite K. P. T., Bohri Road, Karachi, at a monthly rent of Rs.

160. The respondent/landlords filed an application for the petitioners' ejectment before the Rent Controller, Karachi on 9-5-1968 on the ground of default in the payment of rent. The Rent Controller allowed the application by his order dated 20-1-1972. The tenants/petitioners filed an appeal against the said order which was dismissed by the III Additional District Judge, Karachi on 7-8-1973. The defendant/petitioners then filed a R. S. A. In the Sind High Court, which was dismissed on 30-5-1979 vide the impugned Judgment.

3. The application for ejectment was based on the tenants' default in the payment of rent for a period of 11 months i. e. From 1-6-1967 up to 30-4-1968. The tenant (petitioner) has not denied the non-payment of the rent for the said period but explained in the written statement that there was an arrangement between the parties on the basis of an oral agreement that the payment of rent need not be made every month but the tenants would keep the amount of the rent credited to the account of the landlords in their (tenants') own books and the landlords could ask for the amount, so lying to their credit in tenants books, from time to time, at their (landlords') convenience.

4. The respondent landlords, on the other hand, relied on a letter dated 1-7-1976 written to them by the tenants wherein it was stated as a condition of the tenancy that the monthly rent would be paid by the tenants in advance, on or before the first of every month.

5. All the learned three Courts below rejected the plea taken by the defendant/petitioner and gave a finding of fact that he had defaulted in the payment of rent due from him. The learned counsel for the petitioner repeated the same arguments as be had advanced before the High Court namely that in view of the aforementioned arrangement between the parties it was not incumbent upon the defendant/petitioner to pay the rent `every month' and that he could pay the same periodically in lump sums at irregular intervals and in the meanwhile the tenant could go on crediting the amount of the rent in his (tenants') books, in favour of the respondent landlords.

6. The counsel submitted further that the existence of this arrangement was supported by the fact that the defendant had not paid the rent every month; that he had paid it at irregular intervals and that the landlords had accepted the same on earlier occasions.

7. We are not impressed by this contention. When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. In cases where there is no rent deed or written agreement, a tenant would be a defaulter if he failed to pay the rent within two months of the date when the rent became due. It is the duty of the tenant to pay or at least tender the rent to the landlord and he cannot be allowed to plead that the landlord did not make any effort to collect the rent. 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 a 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. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation. With his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. In this view of the matter we feel that the Courts below were justified in holding that default in payment of rent stood proved and the High Court rightly dismissed petitioner's appeal. Consequently, we dismiss this petition as being without any merits.