MUHAMMAD USMAN Versus YOUSUF ALI MUHAMMAD BHAI

1. This First Rent Appeal is directed against the order, dated 31‑8‑1982 passed by Xth Civil Judge and Rent Controller, Karachi, whereby the Eviction Application No. 547 of 1977 filed by the appellant was dismissed on the ground of default of payment of rent.

2. The facts which give rise to this appeal are that the appellant is the owner and landlord of a building standing on Plot No. Sol. 1/74, Soldier Bazar, Karachi and the respondent is his tenant in respect of premises bearing No. 3 at a monthly rent of Rs.35 payable on the first of every calendar month. The appellant filed eviction application on the ground of default for the period commencing from 1‑10‑1976 to 31‑1‑1977 and as such committed wilful default. The respondent filed his written statement and denied all the allegations laid against him. He averred that the appellant used to collect the rent in lump sum after interval of 2 to 4 months at his own convenience and used to issue the rent receipt for the collective period. He further averred that the appellant did not come to collect the rent for the month of October, 1976 and the same was offered to him in the month of November, 1976. He further stated that rent for the months of December, 1976 and January, 1977 was tendered in the month of February, 1977, but he refused to accept the same on the ground that the respondent did not support him in a police case. The respondent ultimately remitted the rent by money order to him on 28‑2‑1977 but the same was also refused.

3. The appellant examined himself as his own witness. The respondent examined his wife as his attorney. They were cross‑examined by their respective counsel.

4. The learned 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 decided issue No.1 in the negative and dismissed the eviction application, vide order, dated 31‑8‑1982.

5. Mr. Muhammad Sadiq the learned counsel for the appellant has contended that the learned Rent Controller has failed to appreciate that mere fact that the respondent had made the habit not to pay rent regularly every month and that the appellant tolerated default for some time by accepting rent at irregular intervals cannot be deemed to have established a practice in the payment of rent.

6. On the other hand Mr. Ghulam Muhammad Ibrahim the learned counsel for the respondent submitted that the respondent in his written statement explained that since the time of commencement of tenancy the long‑standing and well‑established practice between the parties had been that the appellant himself visited the premises at his own convenience and received the rent from him. The respondent also tendered the rent but it was refused by the appellant.

7. I have heard the learned counsel for the parties at great length and have also perused the proceedings in the rent case.

8. The sole question for determination in this appeal would be whether there had been a long established practice between the parties to accept the rent after long intervals without any objection giving rise to an agreement?

9. It is pertinent to note that the appellant in his own affidavit‑in -evidence stated that he used to collect the rent of the premises from the respondent and other tenants of the building. He further stated that the respondent never tendered the rent from October, 1976 to 31‑1‑1977. He also stated that he never asked or agreed with the respondent for the payment of rent of 3 to 4' months in lump sum. The appellant in his cross‑examination stated as under:‑‑

10. "It is incorrect to suggest that there had been an understanding with the opponent that he would pay the rent after interval of 2‑3 months and I would not go to him for collection of the rent. I used to collect the rent in person from the disputed premises, but there had been always the dispute in between the opponent and his other family members regarding payment of the rent to me. I see the receipt, dated 1‑11‑1971, 4‑5‑1972, 13‑9‑1972, 8‑4‑1973, 13‑10‑1974, 10‑12‑1974, 25‑4‑1975, 11‑6‑1975, 12‑10‑1975 and 13‑8‑1976. These receipts bear my signatures.

11. It is correct to say that these receipts pertain to two months to four months. I produce the same as Exhs.l/1 to 1/10. (Documents came from the opponent's side). I see receipt, dated 15‑10‑1976, It bears my signature. It is correct to say that by this receipt I have collected the rent from the months of August, 1976 and September, 1976. I produce same as Exh. 1/11. (Document came from the opponent side). It is correct to say that I maintain the counter‑foils of the rent receipts. it is correct to say that there is no written agreement with the opponent. I was very much troubled by the opponent i.e. why I did not accept the rent as it used to cost me Rs.4 to Rs.5 to go to the opponent and come back.

12. It is correct to say that there had been my dispute with my another tenant in the month of November or December, 1976 and I had not told the opponent to depose against my another tenant. It is incorrect to suggest that opponent declined to depose and I got annoyed and filed the present case."

13. The attorney and wife of respondent in her affidavit‑in‑evidence stated that the appellant used to visit the premises of the respondent at the interval of 2 to 3 or 4 months and collect the rent in lump sum from him as well as from other tenants of the building. The appellant due to his convenience used to visit his premises at the interval of 3 to 4 months and used to collect the rent in lump sum. She stated that under these receipts, that is, Exhs. 1/1 to 1/10 the appellant periodically received the rent in lump sum for the period of 2 to 4 months at time. She further stated in para. 5:

14. "In November, 1976 the opponent personally tendered the rent to the applicant who informed the opponent to pay the rent it lump sum for the period of 3 to 4 months as had been done it the past. Likewise rent for December, 1976: was also not taker by the applicant who requested the opponent to tender rent it lump sum for 3 to 4 months at a time. In January, 1977 the opponent fervently requested the applicant to receive the rent regularly month to month as it was creating hardship for the opponent in maintaining the account. The applicant taking advantage of the cordial relationship between the parties assured the opponent that there was no cause of worry and the opponent could pay the rent in lump sum in due course for which the applicant himself would approach the opponent."

15. In para. 6 of the affidavit she stated:‑‑ "that subsequently in February, 1977 the opponent again went to tender the rent to the applicant which he refused to receive on the ground that since the opponent had not supported the applicant in a police case relating to a dispute between the applicant and some tenants of the applicant on the first floor of the building, he would not accept the rent and would take legal action against the opponent to eject the opponent from the premises. The applicant further informed that since the opponent and his wife had not given favourable statement to the police authorities during investigation he would cause harassment by not accepting the rent."

16. In para. 7 she stated: "that sensing mala fide intention of the applicant the opponent sent money order under receipt No. 3325 to the applicant. The applicant refused money order which was returned to the opponent with an endorsement 'refused'."

17. The Attorney in her cross‑examination stated that her husband is tenant in respect of the disputed premises since year 1970. She further state "both the statements of mine are correct that the applicant used to collect the rent after interval of 2 to 3 months and 3 to 4 months"

18. It appears that the tenancy between the parties is not reduce into writing. The appellant produced receipts bearing Exhs. 1/1 to 1/11. The receipts contain certain conditions on its reverse. Condition No. 1 on receipts Exhs. 1/1 to 1/4 reads as under:‑‑

19. "The rent of the premises for the past month is payable on before the 7th day of succeeding month, failing which interest at the rate of 12% per annum will be charged."

20. These receipts were produced by the appellant himself. The learned counsel for the respondent has referred me to Exhs. 1/1 to 1/11 produced by the appellant in support of his plea that the rent was collected in lump sum periodically at the convenience of the appellant. There is considerable force in this contention and I find that Exh. 1/1 is for two months, Exh. 1/2 is for four months. Exh. 1/3 is for three months, Exh. 1/4 is for two months, Exhs. 1/5, 1/6, 1/7 are for 2 months each, Exhs. 1/8, 1/9 are for three months. Exhs. 1/10 and 1/11 are for two months each. These receipts pertain to the period September, 1971 upto September, 1976. It has also been contended on behalf of the respondent that this was not the practice with him alone but the appellant /landlord had continued this practice also with other tenants in the same building.

21. These rent receipts coupled with a clear admission of appellant make it abundantly clear that there was a consistent practice between the parties to pay the rent in lump sum periodically. It is also an admitted position that the appellant used to collect rent at his convenience. It is also admitted position that appellant did not visit the premises in the month of October, November and December, 1976 for collecting rent from the respondent. It is also in evidence that the respondent did tender the rent for the month of October in November, 1976 but it was refused by him.

22. Mr. Muhammad Sadiq the learned counsel for the appellant has contended that there was an agreement between the parties that the tenant cannot be allowed to prove a practice of acceptance of rent periodically by the appellant in variation of the, terms of that agreement. Agreement can be both oral and in writing agreed upon by both the parties. An agreement is always bilateral in nature and cannot be unilateral. The terms and conditions printed on the back of the receipts are generally signed by the landlords and not by the tenants. In these circumstances it cannot be said that the tenants accept the terms and conditions printed on the back of the receipts. In the written statement the respondent averred that the appellant has been collecting rent from the respondent in the past at the interval of two to three months for his own convenience in lump sum and the respondent relies upon the appellant's own receipts in support thereof. The appellant in his affidavit‑in‑evidence stated that he used to collect the rent of the premises from the respondent and other tenants of the building. In the instant case, the appellant has failed to prove this fact by any evidence that there was written or oral bilateral agreement between him and the tenants of the building including the respondent binding the tenants with terms and conditions on the back of rent receipts. In the instant case the respondent has produced sufficient evidence to show that the appellant himself did not follow the alleged terms and conditions printed on the back of the rent receipts with regard to the payment of rent every month, as the landlord himself has accepted rent in lump sum for two, three or four months. The appellant himself admitted that he used to collect in lump sum for two, three or four months. 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. I am of the view that the terms and conditions printed on the back of the receipts are unilateral and are not binding on the tenants.

23. The learned Rent Controller rightly held the effect of the rent receipts issued in favour of the respondent after an interval of two months, three months and four months and by accepting the admission of the appellant that he used to collect rent at his own convenience not from the respondent but also from other tenants of the same building. Obviously the respondent who is tenant in respect of the premises in dispute since 1970 would not dare to commit default by not paying the meagre amount of Rs.35. The conduct of the appellant all along made by him believe that the rent will be accepted in lump sum as such he was not strictly obliged to remit the monthly rent by money order. The respondent tendered the rent for the month of. October in November but it was refused. It is admitted position that the appellant used to collect the rent in lump sum and did not go to collect the rent for the months of October and November.

24. Mr. Muhammad Sadiq has referred the cases in support of his contention which I will take one by one as under:‑‑

25. G) Messrs Textile Trading Company Ltd. v. Syed Jalilur Rehman and 7 others 1972 S C M R 384.‑‑The Hon'ble Supreme Court while repelling contention of the learned counsel for the petitioners remarked:‑‑

26. "The implied agreement was never pleaded by the petitioner in his written statement. Such practice of payment of rents in a lump sum has been denied by the Rent Collector appearing as a witness on behalf of the respondents and the petitioner has failed to prove that the practice was so consistent as to give rise to an implied agreement."

27. (ii)Hafiz Dawood v. Abdulwali Khan 1973 S C M R 598.‑‑The Hon'ble Supreme Court while refusing to grant leave to appeal observed as follows: ‑‑

28. "Unfortunately, even on this defence, there was nothing to show that the rents for the months of August to December, 1964 and January, 1965 had been paid or tendered by the petitioner at all, and, furthermore, that this tender of rents of several months at a time in lump sum was not proper tender under the West Pakistan Urban Rent Restriction Ordinance, 1959. On his own showing, therefore, he was a defaulter."

(iii) Messrs Tar Muhammad Janoo s Co. v. Tahir Ali and others 1981 S C M R 93.‑‑The Hon'ble Supreme Court while dismissing Petition for leave to appeal observed:‑‑

29. "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 at irregular intervals cannot, in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affects 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."

(iv) Ali Hassan v. Abdul Qadeer 1980 C L C 912.‑‑Mr. Zafar Hussain Mirza, J. (now Judge of Supreme Court) held that:

30. "I am, therefore, unable to see how the aforesaid evidence establishes an implied agreement between the parties for payment of rent with intervals. The best that the aforesaid evidence indicates is that in the past the appellant generously exonerated the defaults in the payment of rents on the part of the respondent and accepted them on occasions after they remained in arrears for long periods. Such being the case the default committed by the respondent which was made the foundation of the present ejectment proceedings, cannot be wiped off merely because on the previous occasions the appellant abstained from resorting to legal action. "

(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:‑‑

31. "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:‑‑

32. "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:‑‑

33. "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."

34. 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:‑‑

35. "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."

36. 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 :

37. "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.

38. 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:‑‑

39. "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:‑‑

40. "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:‑‑

41. "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:‑‑

42. "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."

43. 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:‑‑

44. "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:‑‑

45. "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:‑‑

46. "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."

47. (D)Hassan Khan v. Mrs. Munawar Begum P L D 1976 Kar. 832.‑‑Mr. I. Mahmud, J. held as follows:‑‑

48. "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:‑‑

49. "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:‑‑

50. "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: ‑‑

51. "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:‑‑

52. "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:‑‑

53. "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:‑‑

54. "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.

55. 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.

56. 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."

57. 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.

58. 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.

59. 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.

60. 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.

61. 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.

62. A. A. Appeal dismissed.