AMINA BEGUM Versus IQBAL HUSSAIN

1. This first rent appeal is directed against the order dated 20‑2‑1985 passed . by the learned XVth Senior Civil Judge and Rent Controller Karachi by which the ejectment application filed by the present appellant was dismissed.

2. The brief facts giving rise to the present appeal are that the appellant filed an application under section 15 of Sind Rented Premises Ordinance, 1979 against the respondent, inter alia,, alleging therein that opponent was her tenant in shop, and residential portion consisting of one room, a warranda, kitchen and bath situated on ground floor on plot No.Z‑465,. Commercial .Area, Bahadur .Yar Jang Cooperative Society, Karachi at monthly rent of Rs.300. The opponent had failed to pay rent from 1979 and had also failed to pay betterment tax in respect of shop in question. He has made alterations and encroachment in the above premises without permission of the appellant, and had extended the shop by removing permanent rear wall. He had unauthorizedly converted the residential room as an extended portion of shop which was in his possession. He had also removed permanent mettling shutter of disputed shop, and had fixed new shutter near the road about 7 feet away from the place where it was originally fixed and has thus committed breach of the terms of the tenancy. It was further alleged that because of the above acts the respondent had materially impaired the value and utility of the premises in question. That he had sublet the remaining back portion of premises in his occupation to one Araf without consent of the appellant.

3. The respondent /opponent filed the objections in which he denied the allegations made in the ejectment application. It was stated in the objections that there is only one shop inclusive of bath, Kitchen and WC on the ground floor of premises bearing No.Z/465 and rent was fixed at Rs.125 per month. That the appellant has never mentioned the rate of rent in the rent receipts issued by her malafide. The attorney of the appellant used to collect rent periodically and the rate of rent was Rs.125 per month. It was further submitted that when attorney of the appellant did not turn up to collect rent as usual opponent tendered four months rent through money order on 21‑4‑1980 for December, 1979 to March, 1980 but the same was not accepted. However, the opponent was surprised to receive a notice on 24‑4‑1980 regarding ejectment proceedings. As regards non‑payment of betterment tax, it was submitted that the premises in question were let out for commercial purposes and therefore the opponent/respondent was not liable to pay the same. The payment of tax was liability of the appellant and it cannot be termed as rent payable by respondent. The remaining allegations were denied as false.

4. On the pleadings of the parties the following issues were framed by the learned Rent Controller:‑------

(1) What is the rate of rent?

(2) Whether the opponent has committed default in payment of rent from December, 1979?

(3) Whether the opponent has impaired value and utility of premises in question by making additions and alterations therein without, consent of applicant?

(4) Whether the opponent has sublet' the premises in question.?

(5) What should the order be?

5. The appellant examined her attorney and husband Abdul Majeed, and witness Ghulam Mohammad. while respondent examined himself and one Qari Raheemuddin. They also produced certain documents. The learned Rent Controller while taking into consideration the' evidence produced by the parties decided the above issues Nos.2 to 4 against the appellant and the ejectment application was dismissed. The present appeal is directed against the said order.

6. I have heard the learned counsel for the appellant, and the learned counsel for the respondent.

7. It was contended by the learned counsel for the applicant/, appellant that prior to 15‑10‑1976 the respondent was tenant of the entire building and he used to pay Rs.205 per month as rent for ground floor as it was used for commercial purposes, and Rs.150 P.M. for the first floor as it was being used for residential purposes. That the respondent vacated first floor on 15‑10‑1976 and the rent. of ground floor was enhanced to Rs.300 from 1‑7‑1977. That the money order coupon Exh.0‑2 for Rs.500 showed that it was rent for two months and this belies the stand taken by the respondent. The explanation of the respondent was false, and he had failed to produce his son in evidence to show that it was a mistake that it was shown to be rent for two months. It was further contended that since the rent for four months was sent after the case was filed therefore the appellant had refused to accept the same. That although there was no agreement in writing and the receipts issued by the appellant did not mention the rate of rent, but the respondent also never mentioned the rate of rent in his money orders. That the assertion of respondent in para‑2 of his affidavit Exh.7 that he was paying Rs.305 p.m. as rent out of which Rs.180 P.M. was the rent for first floor, while Rs.125 P.M. was the rent for ground floor shop inclusive bath, kitchen and WC was unnatural and unbelievable because the rent for commercial premises is always higher than the rent for residential premises. Even according to assessment of the ground floor the rental value was fixed at Rs.4,200 per year which makes Rs.360 per month. In this connection he has relied upon receipt annexure F‑3 and Annexure 2. He has further contended that in view of the fact that there was no rent agreement and no date was fixed for payment of rent, the respondent was defaulter for at least two months. However, the learned counsel did not press issue No.4. In support of his contentions he has relied upon 1980 S C M R 506, NLR 1979 (Civil) SC 693, 1986 C L C 93, 1981 S C M R 93.

8. The learned counsel for the respondent has contended that the respondent had sent Rs.915 as rent for the months of October to December, 1974 and the money order coupon has been filed as Annexure D‑4, which will show that the rate of rent was Rs.305 P.M. previously, and the explanation given by Mohammad Abdul Majeed husband of the appellant in para‑5 of his affidavit that the rent was short by 150 was absurd. That the possession of first floor of the premises in question was handed over to the landlady in first week of October, 1976, and thereafter .Rs.375 being .three, months rent was remitted to the landlady on 18th January, 1977. This is clear from Exh.2‑K, and that there was no proof regarding enhancement of the rent. He has further contended that the PT‑I (Assessment Form) was not a proof of actual rate of rent. That since the landlady was residing at Hyderabad, and she used to. accept rent after intervals, therefore, the default if any could be condoned. As regards issue No.3 it was contended that them was solitary word of attorney of the appellant which was not supported by any other evidence. In support of his contentions the learned counsel has relied upon 1986 C L C 1551, 1986 C L C 1778 and 1986 S C M R 1857.

9. I have considered the contentions of the learned counsel and have gone through the R&P of the case. As far as issue No.l was concerned, the appellant/ applicant claims that the rent of disputed premises was fixed at Rs.300 p.m. while the case of the respondent is that the rent of the disputed premises was Rs.125 p.m. Unfortunately, there is no agreement in writing nor there was any document which could prove the rate of rent agreed upon by the parties. Even the rent receipts issued by the husband and son of the appellant do not show the rate of rent which was payable by the respondent. Except the oral assertion of the husband of the appellant and money order coupon dated 7‑3‑1978 Exh.0/2 which was for Rs.500 in which it was written that rent of two months is being paid. The applicant/ appellant has also produced a certificate issued by Sub‑Post Master on 1‑9‑1988 to show that the money order of Rs.500 was sent by the respondent. I am sorry even this does not prove the case of the appellant inasmuch as the case of the appellant is that the enhanced rent which was to be paid by the respondent was fixed at Rs.300 p.m. and therefore, Rs.500 will not be rent for two months. On the other hand, the case of the respondent is that this rent was for four months but since he was ailing he paid this amount of Rs.500 to his son for being sent through money order to the landlady towards rent of four months, and it was through mistake that it was mentioned as rent for two months. Of course, the respondent has not produced his son to support his contention that it was rent for four months but there are circumstances and the documents produced by the respondent to show that the rate of rent was Rs.125 p.m. In this connection the money order coupon Exh.2‑1, produced by the appellant herself supports the case of the respondent. The bare reading of this money order coupon will show that the respondent had sent an amount of Rs.500 towards four months' rent but the same was refused by the appellant without assigning any reason. Even this position was not clarified by the appellant in Court. There is another document Exh.2‑K dated 18‑1‑1977 which is a money order coupon for Rs.375 which was sent to the appellant towards three months' rent and the same was received by them. This further supports the contention of the respondent that this money order was towards three months' rent. The explanation of the husband of the appellant that every time short payment was made and later on the remaining amount was paid privately is not supported by any evidence. The assessment form produced by the appellant is of no help to her inasmuch as there is no guarantee that the rental value by assessing party was fixed after taking into consideration the rate of rent which was being paid to the appellant.

10. In view of the above discussion I am of the clear view that the rent of the ground floor occupied by the respondent was Rs.125 P. M.

11. As far as issue No.2 was concerned, there is no dispute that the respondent had failed to pay rent from December, 1970. Even it has been admitted by the respondent that when nobody turned up to take rent from him he sent money order of Rs. 500 towards the rent of December, 1979 to March, 1980. It is the case of the parties that the appellant was residing at Hyderabad and that whenever her husband or her son came to Karachi they used to collect rent from the respondent. There was no agreement of tenancy nor any date for payment was fixed. It is even admitted by the husband of the appellant that sometimes respondent used to pay rent in advance. That the rents were being collected by them after intervals. In view of the fact that there was no tenancy agreement nor the date for payment of rent was fixed, therefore, the rent for the month of December could be paid in the first week of March, while the rent for January could be paid in the first week of April and therefore, it was conceded by the learned counsel for the appellant that the default, if any, was only in respect of two months and not for four months as laid down by section 12 (2) (ii) of Sind Rented Premises Ordinance, 1979.

12. In view of the above admitted position the question which remains to be decided by this Court is whether looking to the circumstances of the case the respondent was liable to be ejected or discretion should be exercised in his favour.

13. The learned counsel for the appellant has relied upon the following cases in support of his contentions:

(1) Abdur Rasheed v. Mohammad Saleh 1980 S C M R 506.

(2) Syed Ali Ahmed Shah v . Mirza Amjad Hussain N L R 1979 (Civil) (SC) 693.

(3) Messrs Tar Mohammad Janoo & Co. v. Tahir Ali and, others 1981 S C M R 93.

14. In the case of Abdur Rasheed v. Mohammad Saleh, their lordships of the Supreme Court were pleased to observe that:

15. "It has been held time and again that in such cases the parties can not 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 practice which is contrary to the said law. Moreover, the mere fact that the 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 whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."

16. In the case of Syed Ali Ahmed Shah v. Mirza Amjad Hussain, the High Court had observed that:‑

17. No agreement was executed between the parties about payment of rent of several months in lump sum nor was there any evidence that the respondent had given a choice to the petitioner allowing him to pay rent after 3/4 months in lump sum. Even if the respondent had on some earlier occasions waived the default and allowed the payment of rent of several months together, it did not imply that he should go on waiving it" and therefore the High Court had dismissed the appeal of the tenant. The tenant went before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to agree with the above observations of the High Court and the petition was dismissed.

18. In the case of Messrs Tar Mohammad Janoo & Co. v. Tahir Ali and others 1981 S C M R 93 it was observed by their Lordships of the Supreme Court that:‑---

19. "When a premises is taken on rent on monthly basis, the rent becomes due each month on the date specified in the agreement. If the tenant fails to pay the rent within 15 days of the said date he would be a defaulter according to the relevant provision of the West Pakistan Rent Restriction Ordinance, 1959. 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 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 affect 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."

20. Lastly in the case of Sheikh Mohammad Muneer v. Mohammad Ilyas 1986 C L C 93 it was observed by this Court that.‑‑

21. "As has been ruled by the Supreme Court in above reported cases payment of rent has got to be made strictly in accordance with the requirement of the law. No kind of practice even if evolved with mutual consent of the parties can override the relevant provision of the law. In other words if the parties follow any practice in regard to payment of rent the tenant cannot be permitted to set up such practice as defence in order to show that there is no default. As is evident from abovementioned Supreme Court cases, it has been repeatedly held that if the landlord accepts the rent at irregular intervals, he thereby displays his grace and decency which under no circumstances can be misunderstood as a licence to the tenant to continue making defaults, or use such concessions against the landlord himself."

22. On the other hand, the case relied upon by the learned counsel for the respondent as Ameen Master (Ameenuddin) v. Abdur Rasheed 1986 C L C 1551 it was observed by this Court that:

23. "There is word against word. Since the respondent landlord was not issuing rent receipts as admitted by him, the appellant/ tenant could produce any documentary evidence to prove that the rent had been paid upto December, 1978. Likewise, no documentary evidence could be produced regarding the rate of rent. In this situation the learned Rent Controller wrongly put burden of proof on the appellant that the rate of rent was not Rs.100 P.M. and that it has not been established that the rent had been paid upto December, 1978 and he accepted the version of the landlord." and therefore the order of the Rent Controller was set aside and ejectment application was dismissed.

24. In the case of Abdul Ghani v Abdul Aziz 1986 C L C 1778 it was observed by this Court that:

25. "Practice in payment of rent‑‑Conduct of landlord and discretion of Court. Evidence on record and rent receipts produced, proved that the landlord had been collecting rent of premises in lump sum after lapse of 6 to 8 months, tenancy being oral, landlord himself did not abide by terms and conditions, held tenant had discharged his burden of proof regarding practice in payment of rent. It was held that tenant had not committed wilful default and was not laible to be evicted."

26. The above order of the High Court was challenged before the Hon'ble Supreme Court in Civil Petition No.577‑K of 1985 Abdul Aziz V. Abdul Ghani 1986 S C M R 1857 and their lordships were pleased to observe that:

27. " There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving 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 8 months. on one occasion after 10 months and on four occasions after a period of more than two months without any objection. 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 ejectment application." and the petition was dismissed.

28. In view of the above factual as well as legal position, and the fact that there was no written agreement regarding tenancy nor there was any documentary proof regarding the rate of rent and there was dispute between the parties regarding the same. The appellant had been collecting rent after interval, which is clear from the receipts issued to the respondent and the money order coupons. The respondent had sent rent for four months by money order immediately after the filing of the ejectment application, and he has been depositing the rent regularly in Court ‑thereafter. The above rent receipts and money order coupons clearly show that the landlord was party to the practice of accepting rent in lump sum after long intervals. Therefore, the case of the respondent is covered by Supreme Court case of Abdul Aziz and in view of my finding that the respondent was defaulter for only two months, it was a case where Rent Controller has rightly exercised discretion in favour of the tenant.

29. Adverting to issue No.3, the appellant has not produced any documentary or reliable evidence to show that the respondent had made additions and alterations in the premises in question and thereby impaired the utility and the value of the property. There is word against word, and therefore, the Rent Controller was right in deciding this issue against the appellant.

30. Issue No.4 was not pressed before the Lower Court nor it ha been pressed before me and therefore does not call for any discussion.

31. In view of the above discussion I am of the considered view that the order of Rent Controller does not suffer from any infirmity and therefore does not call for interference from this Court. The appeal is accordingly dismissed.

32. M.Y.H./A‑359/K . . . Appeal dismissed.