JALILUR RAHMAN Versus RASHIDA BEGUM

1. Sardar Muhammad Chaudihry, the predecessor-in-interest of the present respondents, was the original tenant of the premises bearing No. 304-Co Latif Cloth Market (formerly known as Govardhan Das Cloth Market),. Bundar Road, Karachi, at a monthly rental of Rs. 12.25. Tile landlords- appellants contended that the tenancy was monthly and the rent was payable after the expiry of each month. They contended that the tenant-respondent was a habitual defaulter being in arrears for about 20 months on the day the ejectment application was filed against him on 29-5-67. It was also alleged that the premises in dispute had been sublet by the tenant and that the premises, which was rented out to be used as office had been converted to residential use. On these grounds the ejectment of the tenant was sought. In the written statement filed by the tenant it was denied if the default had been committed. It was alleged that the landlord was in the habit of collecting rent in lump sum for accumulated period of some months ; that prior to the bringing of this application the rent was duly tendered to the rent collector of the landlord which was not accepted on one pretext or the other when final notice was received from the landlord for vacating the premises due to default in the payment of rent. The tenant, therefore, rushed to the Court and deposited Rs. 220, being the rent for 18 months, with the Rent Controller. It was claimed that the property in dispute was evacuee property and, therefore, notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was necessary, which not having been issued the application for ejectment was not maintainable. The allegations regarding subletting and conversion to residential use were vehemently denied.

2. On these pleadings of the parties following issues were framed by the Rent Controller;

3. "(1) Whether the opponents, have committed default in the payment of rent ?

(2) Whether the application as framed is maintainable or not?

(3) Whether the applicants have -served the opponents with the notice as contemplated in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act? If not what effect?

(4) Whether the opponent has transferred and/or sublet the premises, in question without the consent of applicants?

(5) Whether the opponent has used the premises for a purpose other than for which it was let out ?

4. (6j What should be the Final Order?"

5. At the time of arguments, however, issues Nos. 2 and 3 were not pressed on behalf of the respondents/tenants and were, therefore, dropped. It was found that the landlord had failed to substantiate his allegations regarding subletting the premises and conversion to residential use. It was, however, found that the default bad been committed and, therefore, ejectment of the tenants was ordered. In appeal, the learned Additional District Judge came to the conclusion that the tenancy was not from month to month and that on the day the ejectment application was instituted there was no rent due because the rent for the period ending June 1967 had already stood paid by way of deposit with the Rent Controller and application for non-payment of rent for the month of July could not be instituted before October that year. The finding of the Rent Controller regarding default was reversed and the application for ejectment was dismissed. However, the findings of the Rent Controller regarding subletting and conversion of the premises from office to residential use were confirmed.

6. The learned counsel for the appellant contends that non-payment of rent from January 1966 to June 1967 is proved from the admission of the tenant. On his own pleadings it is admitted that the tenant deposited an, amount of Rs. 220 in Court in July, 1967. This shows that he had defaulted in the payment of rent for that period. The findings of the first appellate authority that the tenancy was not from month to month has been assailed by the learned counsel on the ground that in the absence of a written agreement the provisions of section 13(2) (i) would apply which clearly enjoins upon the tenant to pay or to tender rent within a period of 60 days from the period for which it is payable. He has relied upon Subhan Ali v. Sat Bai (P L D 1964 Kar. 206).

7. 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.

8. On this question whether acceptance of rent in lump sum for an accumulated period of time entitles the tenant for the exercise of discretion under section 13 of the Ordinance, the observation of Patel, J. in Muhammad Alimullah v. Ziaul Islam (P L D 1973 Kar. 56) are determinative of the point which reads as under :---

9. "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. A landlord's failure to collect rent regularly may be due to many reasons, preoccupa tion with his own affairs, fear of the expenses and hazards of litigation, a desire to accommodate his tenant etc."

10. Law enjoins upon the tenant to pay or tender rent within a specified period. Not having done so the default has been committed. Any subsequent payment of rent does not wipe out such default and the tenant is always liable to suffer the consequences of such default. In this regard the following observations made in Subhan Ali's case, referred to earlier support my view;

11. "A default in the payment of rent as contemplated by section 13 (2) (i) of the Ordinance having once been committed, such default cannot be wiped out or erased by subsequent payments of this rent. Nor, can the penalty of eviction that has been incurred by reason of such default be stayed off by subsequent payment of rent."

12. The learned counsel for the respondent has however, contended that on the day the ejectment application was filed there was no rent due against the tenant, because having paid the rent till June 1967 he had a clear margin of 60 days, in fact sometime in October, 1967` for the payment of rent for the month of July. In support of this argument he has relied upon Samiullah v. Muhammad Salim (1971 S C M R 725). The relevant portion from which the learned counsel wants to take support is :----

13. "It is thus evident that it is only when a tenant has not paid the rent and that rent is still outstanding against him that a landlord is entitled to maintain an application for eviction of his tenant under section 13(2) (i) of the Act."

14. This authority, in the main, deals not with the question whether any rent was outstanding against the tenant at the time the rent application was filed but that the question whether having accepted the arrears of rent the default was wiped out by way of waiver or not. In this regard the relevant portion of the authority is;

15. "It has been contended on behalf of the tenant-appellant that respondent No. 3 having agreed to and accepted the aforesaid rent, there was a tacit waiver of forfeiture of the lessee. He has in effect armed the continuance of the lease, and thereby determined the option of taking advantage of the forfeiture for condition broken. We accept this contention"

16. The observation in the earlier part quoted above that maintainability of application for ejectment is sustainable, apart from non-payment of rent, on the ground that rent is still outstanding against the tenant is not the ratio decidendi of the authority but only by way of obiter dicta. This observation is, therefore, not binding in view of the clear provisions of section 13(2)(i) ,of the Ordinance, which speaks of payment of rent within a specified period and not beyond it.

17. In view of the above discussion the default in the payment of rent is' clearly proved. But the learned counsel for the respondent has taken another ground and that is the ground of limitation. The learned counsel contends that the present appeal is beyond limitation and although section 5 of the Limitation Act has been held to be applicable to the proceedings under the Ordinance by a judgment of this Court contained in Hatim Ali v. Zulekha Bibi (P L D 1964 Kar. 399), there is no application for condonation of delay. The impugned judgment was passed on 17th March, 1970 and on the same day the appli cation for copies was moved. The copies were ready for delivery on 22-4-1970. Delivery was taken on 28-4-1970. Subsequently, it was discovered that the legal representatives of the deceased tenant had not been indicated in the copy prepared. An application for such correction was moved on 20th May, 1970 and the correct copy was delivered on 25th May, 1970. The period between 22nd April, 1970 when the copies were ready for delivery and 2~th April, 1970 when the delivery was actually taken could not be condoned even if there was an application to that effect. This is the period which the appellant has himself chosen to lose. The observations in Fateh Muhammad v. Kadirbux (1975 S C M R 157) are apt in this regard where it has been held that the time requisite for obtaining the copy of an order within section 12 of the Limitation Act means only 'the interval between the date of application for supply of copy and the date when it is ready for delivery. The time between the date on which the copy is ready for delivery and the date on which the applicant chooses to take delivery thereof is not a portion of time "requisite" for obtaining the copy.' It has also been observed in this authority that even during the period which is covered by section 12 of the Limitation Act due diligence on the part of the litigant is required by law.

18. Excluding this period and the period from 20th May to 25th May, 1970 (both days inclusive) the period required for the collection of the copies supplied, 30 days' time laid down by section 15 of the Ordinance were to expire on the 28th of May, 1970. The appeal should have been filed on or before that date. Not having done so the appeal is time-barred because it was filed on 17th June, 1970 and the provisions of section 4 of the Limitation Act would also be not available to the appellant because the period of limitation was not expiring during vacation which started on 1st June, 1970. On the ground of limitation, therefore, the appellant must suffer, because he has chosen to file it beyond time. The same is, therefore, dismissed, being barred by limitation. The parties are however left to bear their own costs.

19. S. A. H. Appeal dismissed.