ASIF TRADING CORPORATION Versus HAFIZUDDIN

1. This first rent appeal has been filed by the appellant /tenant against the order, dated 10‑10‑1984 of VIIth Senior Civil Judge and rent controller, Karachi whereby he has been directed to hand over the possession of the premises to the respondent within 60 days.

2. The facts are that Rent Case No. 1604 of 1977 was filed under section 13(2) of West Pakistan Urban Rent Restriction Ordinance, 1959 on the ground of default in payment of rent from January, 1977 to May 1977 for five months amounting to Rs.1,237.50 only. In written statement appellant pleaded that clerk of the respondent used to come and collect the rent. Appellant sent a cheque which was accepted by the clerk of respondent and subsequently returned and rent case was filed. Before the rent controller Fazalur Rehman and Mohammad Abdullah were examined on behalf of the respondent while Shabbir Ahmed Managing Partner was examined for appellant.

3. I have heard Mr. Zia Karim learned counsel for the appellant. It is contended by the learned counsel that from very start of the tenancy the practice was that rent collector used to come and collect the rent after three months or so therefore, more default has been committed. It is argued that default is only in respect of two months January and February 1977 and as appellants are being statutory tenants can get grace of the period of 60 days. He has referred to the cases reported in P L D 1970 Lah. 105 and P L D 1977 Lah. 262. He has also produced copy of judgment in second appeals Nos. 70 and 71 of 1982 of this Court decided on 16th July 1986 (Tanveer Woollen Mills Ltd. v. Hafeezuddin and others).

4. Mr. Naeem‑ur‑Rehman learned counsel for the respondent Suhmilred that default has been proved and benefit of practice could not be given to the appellant as every tenant is supposed to tender rent every month which has not been done in this case. He has referred to the case reported in P L D 1984 SC 332.

5. The relationship and rate of rent are not disputed. It is also admitted that appellant had not paid the rent for the months of January 1977, to May, 1977. The rent case was filed on 23rd May, 1977. Mr. Naeemur Rehman submitted that appellant being statutory tenant committed default in payment of rent for the months of January 1977 and February 1977 at the time of filing of rent case as he i3 entitled to avail of benefit of sixty days but argued that there was no practice between the parties. Respondent Hafizuddin alongwith his affidavit in evidence produced a statement showing the manner in which the rent was paid by the appellant. This statement is on the record subject to objection. While hearing the appeal the learned counsel for the appellant has not opposed the consideration of this statement. In the statement Exh.7 the details of payment of rent have been given by the respondent which are as under:-----‑

6. 14‑9‑1972 Rs. 742.50

7. 13‑12‑1972 " 742.50

8. 15‑2‑1973 " 495.00

9. 10‑4‑1973 " 495.00

10. 2‑6‑1973 " 495.00

11. 17‑9‑1973 "742.50

12. 5‑12‑1973, "495.00

13. -‑ ‑1974 " 247.50

14. 11‑ ‑1974 "495.00

15. 23‑5‑1974 " 495.00

16. 11‑7‑1974 "495.00

17. 1-10-1974 "742.50

18. 1‑1‑1975 "742.50

19. 19‑3‑1975 742.50

20. 24‑6‑1975 `742.50

21. 10‑10‑1975 "742.50

22. 17‑‑12‑1975 "742.50

23. 3‑4‑1976 "742.50

24. 2‑6‑1976 " 742.50

25. 20‑9‑1976 " 742.50

26. 20‑1‑1977 " 742.50

27. This statement clearly shows that accepting the rent monthly once all along since 1972 the rent was paid after two months and three months.) On seven occasions for two months and 13 occasions after every three months. The rent was being accepted in this manner since 1972 to the filing of the rent case. The last rent was accepted on 20‑1‑1977 for three months amounting to Rs.742.50 from which it is clear that the practice of collecting rent was prevalent between the parties and respondents were accepting the same without any resistance or objection. On the other hand Shabbir Ahmed also produced the photostat copy of the rent receipts as Exh.9 and O.1 to O.9 showing that rent was being paid after every three months or two months. These receipts have not been controverted by the respondents. The explanation of appellant that rent collector did not appear and he tried to tender the rent appears to be plausible and from documentary evidence as stated above it is clear from both the sides that from very start the rent was being paid or collected in lump sum as stated above. In case of Abdul Aziz v. Adbul Ghani reported in 1986 S C M R 1857 the same point came into consideration and their Lordships held in para. 3 as under:‑----

28. "We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of tenancy. Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by Mst. Hamida Khanum, wife of the petitioner, the respondent started depositing the rent in the Court of the concerned Rent Controller and thus under the circumstances it cannot be said that the respondent is a wilful defaulter. Finding no merit in the petition, .the same is dismissed."

29. Receiving or tendering the rent in practice is identical to the present case and the same is position in Civil Petition for Leave to Appeal No. 540/K of 1984 and relying on the principles laid down in the above reported cases and discretion exercised in favour of the tenant was approved. This point has also been considered in Second Appeals Nos. 70 and 71 of 1982 in which case cited by Mr. Naimur Rehman reported in P L D 1984 SC 332 was considered and after considering other cases on the point the default was not found to be wilful. In view of the circumstances stated above and documentary evidence I am of the view that no wilful default has been committed. Consequently the order of the Rent Controller is set aside and appeal is allowed with no order as to cost.

30. M.Y.H./A‑352/K Appeal allowed.