ABDUL GHANI Versus ABDUL AZIZ

1. This First Rent Appeal is directed against the order, dated 26‑5‑1984 passed by the XIIth Senior Civil Judge and Rent Controller, Karachi, whereby the eviction application filed by the respondent was allowed and the appellant was directed to hand over vacant possession of the disputed premises within thirty days from the date of order.

2. The facts which give rise to this appeal are that the respondent is landlord of Bungalow No. 77, Garden East, Sobhraj Chatumal Road, Karachi and the appellant is a tenant of the upper floor at the monthly rent of Rs.260 since 1974. The respondent's wife Mst. Hamida Khatoon sometime in January, 1979 initiated rent proceedings against the appellant and when the objection was taken by the appellant that she was not the landlady, the same was withdrawn by her. The appellant sent three money orders, dated 21‑1‑1979 for Rs.3,000 covering rent from 1‑7‑1978 upto 31‑1‑1979 but even beyond February, 1979. The respondent refused to accept the same. The appellant after seeking necessary permission from the IIIrd Rent Controller, deposited rent in March, 1979. On 9‑4‑1979 the respondent filed eviction application No. 1895179 on the ground of default in payment of rent from 1‑7‑1978 to 31‑3‑1979. It was further averred that the appellant is a regular defaulter, had not paid the rent due in time and remained always in arrears. It was also stated therein that the tenancy of the appellant is monthly tenancy and the terms and conditions of the tenancy are printed on the backside of the rent receipts issued to the tenants. The appellant is to pay rent regularly by the 15th of every calendar month. The appellant filed written statement. The appellant denied contents of para. 2. It was averred that the terms and conditions of the tenancy were not according to the terms as provided on the back of the receipt as claimed by the respondent nor was the rent payable by the 15th of every month as stated by him. It was, however, stated that the rent was collected after lapse of six to eight months. It was averred that "as the rent has been regularly collected for 4 or 5 months in arrears and sometimes longer than that. The opponent under the circumstances cannot be deemed to be in willful default as envisaged under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959".

3. The respondent filed affidavit‑in‑evidence in support of the application. The appellant filed his own affidavit‑in‑evidence and also filed affidavit‑in‑evidence of his attorney Murtaza Khan. They were cross‑examined by respective counsel of the parties.

4. The Rent Controller on the basis of the evidence produced by the parties and after taking into consideration the arguments of the learned counsel for the parties allowed the eviction application, vide order, dated 26‑5‑1984.

5. The appellant above named being aggrieved against the order, dated 26‑5‑1984 of the XIIIth Senior Civil Judge and Rent Controller has preferred this First Rent Appeal on the grounds mentioned in the memo of appeal.

6. Mr. M. Naimur Rehman the learned counsel for the appellant has contended that the learned Rent Controller did not appreciate the evidence nor did he apply his mind to the fact that the conduct of the parties from the very beginning was to pay rent in lump sum at irregular intervals in arrears and was promptly paid as and when the respondent came to collect the rent under the agreement with the landlord. He has further submitted that the appellant had discharged the onus of proof regarding payment of rent at the irregular intervals under the agreement with the respondent.

7. On the other hand Mr. Qutubuddin Ahmed the learned counsel for the respondent has submitted that according to terms and conditions of clause 6 the rent was payable by 15th of every month. The appellant did not pay rent for the months of July and August upto the month of December, 1978, the rent was not tendered within the stipulated time as stipulated under the statute. The appellant remitted Rs.3,000 on 21‑1‑1979 which was rightly refused because the tender was not within the stipulated time as provided under the statute. The deposit of rent in Court on 18‑3‑1979 did not, absolve him ~of his liability to pay rent within time and it amounted to default in payment of rent. The learned counsel has further submitted that the order of the learned Rent Controller is in accord with the evidence on record.

8. I have heard the learned counsel for the parties at a great length and have perused the R & P of the Rent Controller and also perused the impugned order.

9. The respondent in eviction application stated that the tenancy of the appellant is monthly tenancy and the terms and conditions of the tenancy are printed on the backside of the rent receipts issued to the tenants. The appellant is to pay rent regularly by 15th of every calendar month. The appellant did not pay rent since Ist July, 1978 and was in arrears of rent for nine months. The appellant denied contents of para. 2 of the application. It was averred that:

10. "It is emphasised that the terms and conditions of the tenancy were not according to the terms as provided on the back of the receipt as claimed by the applicant nor was the rent payable by the 15th of every calendar month as stated by the applicant. It is, however, stated that the rent was collected after lapse of six to eight months."

11. The respondent in para. 5 of the application stated that non‑payment of rent by the appellant rendered him liable for eviction from the premises under the repealed Ordinance. The appellant denied para. 5 of the application and stated as the rent had been regularly collected for 4 or 5 months in arrears and sometimes longer than that. The appellant under the circumstances could not be deemed to be in wilful default as envisaged under section 13 of the repealed Ordinance.

12. It is by now well‑settled 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. The Hon'ble Supreme Court has laid down the above dictum in the following cases:‑‑

(1) Haji Fida Hussain v. Muhammad Ibrahim Khan 1972 S C M R 262.

(2) Alif Din v. Khadim Hussain 1980 S C M R 767.

13. However, the Controller has a discretion to direct or not to evict the tenant in spite of the latter's default, the conduct of the parties may be relevant in such cases. A defence based merely on the ground of the landlord received or collecting rents at intervals of several months, has not been considered as a good defence by the Hon'ble Supreme Court in many cases. Some of them are:‑‑

(1) Sh. Muhammad Hassan & Co. v. n4ian Mahmood Ahmed Khan 1975 S C M R 355.

(2) Alif Din v. Khadim Hussain 1980 S C M R 767.

(3) Dr. Syed Waris Ali Tirmizi v. Mst. Liaquat Begum 1980 SCMR 601.

(4) Alima Ahmed v. Amir Ali P L D 1984 S C 32.

14. In the case of MalkaBegum v. Mehar Ali Hashim 1984 S C M R 755, the Hon'ble Supreme Court held "that in any case since the tenant is under an obligation to pay rent to the landlord and not the landlord should go to collect the rent the onus to establish the practice as a defence is heavily on the tenant."

15. I n the instant case the appellant in his written statement stated that the terms and conditions of the tenancy were not according to the terms as provided on the back of the receipt as claimed by the respondent nor was the rent payable by the 16th of every calendar month as stated by the respondent. The rent was collected after lapses of six to eight months. The respondent in his affidavit‑in‑evidence stated that the tenancy is monthly tenancy and the terms and conditions of the tenancy are printed on the back side of the rent receipts issued to the tenant. The appellant had to pay rent regularly by the 15th of every month.

16. He managed the said property, received the rent etc. and issued receipts thereof. The respondent to a suggestion in cross‑examination replied that "according to the terms of agreement the opponent had to come to my office and tender rent every month. My times are invariably fixed from 3 to 6 or 7 p. m. in the office and I would always be available during this time."

17. In rebuttal Murtaza Khan attorney of the appellant filed affidavit -in‑evidence and stated therein that it is a fact that the appellant always paid rent at intervals when the landlord /respondent came to collect the rent as the landlord/ respondent had not advised the appellant as to way the rent was to be paid to him. The counsel of the respondent produced letter Exh. 6‑A through this witness. The attorney of respondent to a question in cross‑examination replied "I do not know if opponent had agreed through any letter to pay rent in advance at the Office of applicant". The attorney to another suggestion replied that "it is fact that rent had not been paid since July, 1978. Voluntarily states that rent could not be paid as none came from applicant's side to collect the rent."

18. The appellant filed affidavit‑in‑evidence and stated there in that "I gave no letter in writing to the respondent that I will pay rent regularly monthly as alleged. I reiterate that the rent was collected periodically by the applicant /landlord and in this regard I produce herewith photostat copies of receipts issued between 5‑11‑1974 and 18‑9‑1978 which are attached hereto and marked 1 to x, that immediately the Rent Case No. 263/79 aforesaid in February, 1979 was filed. I sent money orders for the rent *of July, 1978 and February, 1979 which the applicant had not collected, and upon refusal thereof by the applicant I filed Miscellaneous Rent Application No. R.C. 1194/79 in which I deposited not only the rent between July, 1978 to February, 1979 but also all rents since March, 1979 till to date". The appellant to a suggestion in cross‑examination replied that "I am in custody of the originals of all the photo copies produced alongwith the affidavits. It is fact that on some original rent receipts the terms of tenancy are mentioned. I can produce all the originals".

19. The appellant produced the following receipts:‑

20. S. No. Date. Receipt for Number of Exhibit months. month's.

21. ------------------------------------------------------------------------------------------------

(1) 1‑7‑1974 July 1974 1 19

(2) 5‑11‑1974 August, September,

22. October . 3 18

(3) 2‑8‑1975 Ist November, 1974 to 30th June,

23. 1975 8 17

(4) 17‑4‑1976. Ist July to 29th, February, 1976 8 16

(5) 12‑5‑1976 March 1976 1 15

(6) 1‑3‑1977 Ist July 1975 to

24. 30‑4‑1977 10 14

(7) 9‑6‑1977 May and June,

25. 1977 2 13

(8) 2‑12‑1977 July to November

26. 1977 4 12

(9) March 1977 to

27. February, 1978 4 11

(10) 18‑9‑1978 March, April,

28. May and June,

29. 1978 4 10

30. The exhibits 15 and 19 relate to rent for one month only. The exhibit 13 relates to rent for two months. The exhibit 18 relates to rent for three months. The exhibits 10, 11 and 12 relate for four months. Th.e exhibits 16 and 17 relate for eight months. The exhibit 14 relates for ten months. The applicant, who has been occupying upper floor of Bungalow No. 77, Garden East since July, 1974 has produced evidence that he was ready and willing to fulfil his obligation to pay rent but was prevented from so doing by such circumstances as would have prevented a reasonable man from discharging his obligations.

31. While no doubt, the observations of the Hon'ble Supreme Court are entitled to highest respect, in my opinion that do not apply to the present case. In the circumstances of this case I feel that the appellant has discharged the burden of proof in respect of his assertion in the written statement.

32. Mr. Qutubuddin Ahmed the learned counsel for the respondent has contended that printed receipts issued by the respondent clearly show that there are terms and conditions printed on the back of receipts which include the condition that rent is payable every month by the 15th of every month. Payment of rent every month by 15th is, therefore, part of agreement, which is binding on the appellant.

33. On the other hand Mr. Naimur Rehman the learned counsel for the appellant has denied that printed terms and conditions are part of the agreement binding on the appellant. He had submitted that the appellant denied contents of para. 2 of the eviction application in his written statement and stated therein that the rent was collected after lapse of six to eight months.

34. I am of the view that conditions appear to be unilateral because the original tenancy agreement between the parties was oral. The terms and conditions printed on the back of the receipts are generally signed by the landlord and not by the tenant. In these circumstances it cannot be said that the tenant accept the terms‑and conditions printed on the back of the receipts. There is nothing on record to suggest that the appellant had agreed to abide by such conditions. From the evidence it appears that the respondent used to collect the rent in lump sum from the appellant. It also appears from exhibit 12 that the respondent collected rent for the months of July to November, 1977 on 2‑12‑1977 and rent for the months of March, April, May and June was collected on 18‑9‑1978. In these circumstances it has come on record that the respondent himself did not abide by the terms and conditions on the back of the receipts. It seems that not a single question was put to the appellant about payment of rent by 15th of each month. In the instant case the respondent himself accepted the rent in lump sum. If a landlord himself does not stick to the terms and conditions printed on the back of the receipts, then the tenant cannot be blamed for the same.

35. It is argued that the respondent waived the condition No. 6. Any payment of rent in breach of section 15(2) is liable for eviction. Assuming that the respondent can waive the requirement as to payment of rent before 15th of each month. It is shown that the respondent waived it. A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to be effectual action for the enforcement of such right. The conduct of the appellant all along as such was not strictly obliged to remit the monthly rent by money order or he was not strictly obliged to deposit the monthly rent after seeking necessary permission from the Controller. I hold that in the circumstances of the case the appellant had not committed any wilful default and is not liable to be evicted and the Rent Controller has not exercised his discretion judicially and properly. I consider that this is a good ground for exercising the discretion in favour of the appellant/ tenant. As such I exercise discretion in his favour.

36. Mr. Naimur Rehman learned counsel for the appellant contends that the appellant filed, Miscellaneous Rent Case No. 1194 of 1979 in the Court of IIIrd Rent Controller, Karachi and deposited the entire outstanding rent in Court in mid March, 1979, where it is being deposited ever since. The application was filed subsequently, that is, on 1‑4‑1979 that the appellant had not committed any default. I am of the view that this deposit will not exonerate the default committed by him in terms of section 13(2)(i) of the Rent Ordinance. (See 1972 S C M R 262).

37. For the foregoing reasons the order of the Rent Controller is set aside and the eviction application is dismissed but in the peculiar circumstances of the case the parties will bear their own costs.

38. H.B.T. Appeal accepted.