ADAM AHMAD THAQIA Versus MUHAMMAD HANIF

1. This first rent appeal is filed against impugned order, dated 5‑3‑1984 of learned VIth Senior Civil Judge/Rent Controller', Karachi whereby application filed for ejectment under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) has been dismissed.

2. Briefly stated the relevant facts giving rise to this appeal are that appellant is landlord and respondent is tenant (hereinafter to be referred as such) in respect of premises bearing No. 1218 in Block 17, Federal B Area, Karachi at monthly, rent of Rs.315. Ejectment has been sought on the grounds that tenancy agreement has expired as such the tenant is liable to vacate .the premises and tenant is chronic defaulter and further the premises are required for personal need of the landlord. Tenant contested the proceedings in the Court of Rent Controller and in the written statement denied the allegations of the landlord. Three issues were framed in the light of the pleadings of the parties as stated above and in the evidence landlord examined himself and one other witness Abdul Aziz. On the other hand tenant examined himself and filed affidavit of Fayaz, who did not make himself available for cross‑examination. Learned Rent Controller found all the three issues against landlord and in consequence dismissed his application for eviction.

3. I have heard at length Mr. Abdul Sattar Memon, Advocate; for landlord and Mr. M.A. Qadri, Advocate for the tenant. At the very outset Mr. memon stated that he would not press this appeal on .the first issue namely termination of tenancy on account of expiry of tenancy agreement for the reason that landlord had been accepting rent from the tenant after expiry of tenancy agreement. Now there are only two issues left which are default and personal need. So far default is concerned case of the landlord .is that tenant is chronic defaulter and according to the agreement monthly rent was payable in advance on first of each calender month. Tenant has taken up the plea in the written statement that he was inducted in the possession in June, 1971 and also paid Rs.2,000 as advance. Rent per month was initially Rs.175 which was increased to Rs.225, then to Rs.290 and finally to Rs.315 as such there was several agreements and the last agreement was dated 29‑9‑1980 for 11 months which expired in august, 1981. Tenant also took the plea in the written statement that landlord used to collect rent periodically. Landlord has admitted in his application for eviction filed in the Court of Rent Controller in paragraph 3 that tenant has last paid rent on 2‑8‑1982 for the period from May 1982 to July 1982. He has also admitted this fact in his cross‑examination that last rent paid was in August 1982 and he filed this case in September 1982. It is mentioned in the last agreement of tenancy between the parties that rent shall fall due on the first of each month payable in advance. This agreement was for 11 months and expired in August 1981. It is admitted position that after expiry of this agreement landlord accepted rent from the tenant as such tenant became statutory tenant‑‑Ejectment application was filed on 5th September, 1982. Since rent was last paid on 2‑8‑1982 which A covered July 1982, rent for the month of August 1982 after expiry of agreement was payable within statutory period of 60 days after the rent had become due, which comes to 10th October as contemplated under section 10 of the said Ordinance in absence of the agreement. In these circumstances the rent was due.

4. Although in the application for eviction no instances are quoted to show that tenant was a chronic defaulter but vague allegation was made in paragraph 3 that tenant in the past two years had committed B more than a dozen defaults in the payment of rent. Landlord in his affidavit in evidence filed in the Court quoted six instances and produced receipts to show that tenant paid rent late as under:‑

(1) For October and November 1980 ... paid on 2‑12‑1980

(2) For December, 1980 and January, 1981 ... " 9‑2‑1981

(3) For February, March and April, 1981 ... " 10‑5‑1981

(4) For May, June and July, 1981 ... " 9‑8‑1981

(5) For August, 1981 ... " 9‑11‑1981

(6) For May, June and July 1982 ... " 2‑8‑1982

5. As per landlord's own case from October 1980 upto August 1982 for period of 23 months tenant has paid rent and landlord has accepted rent in lump sums on 6 occasions out of which twice for two months and thrice for 3 months and once for one month. Rent receipts on the record clearly show that rent was paid at the rate of Rs.315 per month as per tenancy agreement, dated 29‑9‑1980 which was for 11 months and stood expired in August 1981.

6. Mr. Memon contended before me that landlord has produced receipts mentioned above to show that default has been committed by the tenant on those six occasions when he paid rent late and subsequent payments, even if accepted by the landlord, would not erase the default. In support of this proposition reliance has been placed by the learned counsel on the case of Mohammad Ahmed v. Mrs. Qamar Anwar Shaikh 1980 C L C 664. It is held in this judgment that if tenant commits default by not paying or tendering rent within prescribed period, he would be liable to be ejected notwithstanding subsequent payment of arrears unless the case of waiver on the part of landlord is made out. In the instant case the landlord knowingly relinquished his right to apply for ejectment when the agreement of tenancy was in existence from 29‑9‑1980 to 31‑8‑1981 for 11 months when in the said agreement it was specifically stipulated that rent became due on the first of each month payable in advance. At least 4 defaults were committed during the existence of tenancy agreement. After the expiry of the tenancy agreement there were 2 defaults and the landlord finally woke up from slumber on 5‑9‑1982 and filed, application for eviction in the Court of Rent Controller. In the application for eviction landlord has admitted that last rent paid by the tenant was on 2‑8‑1982. In the circumstances I hold that this is the case in which conduct of landlord clearly implies waiver.

7. It was contended on behalf of the landlord that the tenant cannot take plea that the landlord accepted rent periodically and in lump sum for the reason that this plea is of no avail in explaining delay and default. In support reliance is placed on the case of Mrs. Alima Ahmed v. Amir Ali P L D 1984 SC 32. Supreme Court has observed in that case that 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 the Supreme Court in Tirmizi's case, which is reported in 1980 S C M R 601. In Tirmizi's case it is held by the Supreme Court that the Court could condone delay in case landlord has agreed to accept rent periodically and such acceptance of rent periodically can be result of fresh agreement between the parties. Burden of proof of such agreement could not be inferred lightly and not generally inferable from mere fact of landlord having received rent from tenant at irregular intervals. If tenant failed to prove that landlord had agreed to alter terms of tenancy to receive rent at long intervals, then if tenant defaulted he would be liable to ejectment. Factual background of Tirmizi's case was that such plea was taken by the tenant on the ground that husband of landlady, who was her attorney and received rent requested the tenant that he shall collect rent according to his convenience so that he could receive at a time a good amount of lump sums which might be useful to him. Tenant being family doctor agreed and as a matter of routine rent was collected after 3 or 6 months or more or less as suited the said attorney, who passed receipts accordingly. It was found by the Supreme Court that out of the nine payments, tenant twice paid rent of only one month and twice paid rent of only two months. In the circumstances Supreme Court held that claim of the tenant regarding wish of attorney of landlady not to receive rent at the end of the every month or two prima facie stood additionally tenant was also found to have written apologetic letters to the husband of the landlady asking for time to clear arrears of rent. It was in such circumstances that it was; held that tenant was in default of payment of rent and liable to be ejected. Coming back to the case of Mrs. Alima Ahmad v. Amir Ali, the relevant paragraph on point at issue is !ed as under:‑

8. The appellant alleged non‑payment, default and neglect on the part of the respondent to pay monthly rent from April to February 1971. The respondent in his written statement admitted payment of rent from April 1970 to September 1970, by cheque dated 20‑8‑1970 and next by money order on 27‑3‑1971 for the rent of October, 1970 to March 1971. On this admission itself and even after allowing him the benefit of law laid down in Muhammad Yousuf's case, the tenant was clearly in default for April and May 1970 and October to December 1970. This was so 'in spite of his having received a notice (Exh.P.10), dated 14‑9‑1970 calling upon him to pay the arrears and the current rent directly to the landlady. 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). The Rent Controller was clearly in error in holding that there was no 'persistent' or 'wilful' default and in ignoring the law laid down by this court in Tirmizi's case."

9. On the other hand in the case under consideration, Mr. Qadri counsel for the tenant submitted that every case has its own peculiar facts and circumstances which are to be considered in totality, on the basis of which conduct of landlord is to be seen whether he adopted such practice of receiving arrears from the beginning of the tenancy to furnish sufficient justification to the Court to exercise its discretion in favour of dismissing eviction petition. In support of this proposition reliance has been placed by him on the case of Abdul Aziz v. Abdul Ghani 1986 S C M R 1857. Relevant paragraph from the judgment is reproduced as under:‑

10. "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 the 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."

11. In the circumstances as discussed above I am of the view that in this case, as it appears from the record and pleadings of the parties, tenancy commenced from June 1971 and continued although in the meantime there were several agreements and rent was increased from time to time on at least three occasions. Landlord failed to produce evidence to show that tenant did not pay rent regularly in the past. He himself chose the period of tenancy of the last agreement commenced from 29‑9‑1980 and produced six receipts covering the period from October 1980 to July 1982 when ejectment application was filed on 5‑9‑1982. Not only that but landlord filed ejectment application after having accepted payment of rent in arrears from the tenant. This conduct clearly shows that landlord does not have clean hands. I have already stated above that landlord had filed ejectment application prematurely before any rent was due. Evidence in this case is indicative of the conduct of the Landlord, as if he is fully determined to see committed the tenant out on any ground. I, therefore, hold that default is not

12. The third issue is that premises were required by the landlord for his personal need. Landlord has taken inconsistent leas on this ground. Before the Rent Controller in his application for ejectment he stated that he has become partially blind and is not able to climb the stairs to the first floor where he has present residential accommodation. In the same breath second plea taken is that his wife is a sick woman and doctors have advised her to live in open place and not to climb stairs. At the same time third plea taken is that landlord's son's marriage is being postponed for the last several months due to shortage of accommodation. On this subject case of the tenant is that landlord has sufficient accommodation and there is, no body in the family except him and his wife who are both issueless.' Tenant has denied illness of landlord and his wife and further stated that accommodation position was same in 1971 when he was inducted as tenant by the landlord himself. In the evidence landlord stated on oath that he was living as tenant in the said premises on payment of monthly rent of as.100. In cross‑examination he has stated that there is no rent agreement with his landlord. Landlord has produced two rent receipts which show that rent was Rs.50 p.m. and not Rs.100 as claimed by the landlord. These two receipts also pertain to the period of 3 months before filing of the rent case. 13eceipts also show that rent for June and July was paid on 1‑7‑1982 while rent for August and September was deposited on 5‑8‑1982 when rent for September was not even due. In these circumstances the learned Rent Controller has concluded that the receipts were manipulated and he refused to believe the plea of the landlord.

13. Now so far illness of landlord and his wife is concerned no medical certificate has been produced. In cross-examination landlord has admitted that he has no issue. In his evidence landlord has stated that he has adopted his nephews as his sons who are living with him and he has taken the responsibility for their maintenance, accommodation and marriage etc. Even those adopted sons were not produced nor any one from them was examined. It appears at landlord has been shifting his plea from one to the other. He examined one witness Abdul Aziz by name who has deposed that landlord lived on the upper floor of Zaidi Manzil alongwith his adopted sons He has also stated that landlord and his wife are ill In cross‑examination this witness has admitted that landlord belongs to his community and is his neighbour for the last 9/10 years. He has admitted that landlord is his friend and he had come to give evidence for him. Landlord should have produced better evidence and could have produced medical certificates to show his own illness and that of his wife.

14. For the facts and reasons mentioned above I maintain the impugned order and dismiss the anneal filed by the landlord with no order as to cost

15. M Y.H./A-317/K appeal dismissed