B.C. AGA & CO. Versus FAKHRUDDIN

1. The respondent instituted ejectment application against the appellant under the Urban Rent Restriction Ordinance on the ground of default in payment of rent from 1‑7‑1967 to 31st July, 1968. Although other grounds namely creating nuisance to the annoyance of other occupants of the building and committing acts which are harmful to the building and materially diminish its value and utility were pleaded, the same were dropped and the respondent has pressed only the plea of default in payment of rent. The appellant's defence was that the respondent had created a practice of collecting rent annually and for the last 6/7 years rent was paid in the same manner. The annual rent for the period July 1967 to June, 1968 became due in July, 1968 but in June, 1968 the respondent did not come to collect the rent as usual therefore on 8‑8‑1968 the appellant sent a cheque of annual rent plus rent for six months in advance but the respondent refused to accept the same and filed the ejectment case. The learned controller came to the conclusion that default has not been committed and dismissed the application. however, in first appeal the learned Appellate Authority set aside the order of the learned Rent Controller and ordered for ejectment of the appellant on ground of default.

2. Mr. Salim Karamally the learned counsel for the appellant has contented that a practice had developed between the parties whereby the respondents were accepting the rent annually and by this practice the appellant was led to believe that payment in such mode will not amount to default. In this regard the learned counsel has referred to rent receipts Exhs.6‑A to 6‑E to show the mode of payment of rent for a period of about 3/4 years. A perusal of Exh.6‑B will show that it was issued on 1‑2‑1963 acknowledging receipt of the arrears from April, 1962 to December, 1962 rent for January 1963 and advance rent for February and March, 1963. This receipt covered the rent for the financial year commencing from April, 1962 to March 1963. Pattern of all the receipts is the same in which arrears are mentioned and thereafter advance rent for such period is accepted which makes up the total equivalent to rent for one financial year. This fact is further confirmed from Ex.6‑A in which rent was taken up to June, 1967 and the only plausible explanation given is that in that year the financial year had been changed. The learned counsel for the appellant on the basis of this evidence contended that it was a fit case in which discretion should have been exercised as there was no wilful default. While referring to Aleema Ahmed's case PLD 1984 SC 32 the learned counsel contended that the observation that there was no plausible explanation for such default means that if any valid and proper explanation would have been given the default may not have entailed in ejectment. The main thrust of his argument is that in the facts and circumstances of the case no wilful default has been committed.

3. The rent during the period 1963 to 1967 was paid in a consistent and similar manner as rent for one financial year was accepted. During this period when rent was being accepted no evidence has been produced to show that the respondent had objected to this mode of payment. In fact this mode of payment was operating between the parties during the last four years. The learned counsel for the respondent while referring to Exhs.6‑A to 6‑E pointed out that in each receipt arrears have been shown to demonstrate that the respondent was not accepting rent annually but was treating the rent as arrears and accepting it at the end of the year. It is true that the rent as arrears has been shown in the receipt but it is also established that rent in this manner was accepted by the respondent without any objection. In the background of these facts I will now refer to various judgments of the Supreme Court cited by the learned counsel.

4. In Mohammad Alam's case 1973 S C M R 606 the following observation was made:‑

5. "Another aspect of the case is that the appellant was required to pay rent by the 5th day of every month as stipulated in the rent deed Exh.27. If he failed to pay rent within fifteen days after expiry of the date fixed in the agreement of tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law. The Rent Controller could, however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In that case it could be said there was no deliberate default and the Court might exercise discretion against directing eviction of the tenant although, in law, default is proved on his part."

6. This observation came up for consideration in Tirmizi's case 1980 S C M R 601 and it was clarified in the following terms:‑

7. 'As this observation was followed in Muhammad Shafi v. Zahir Hussain and another PLD 1978 Lah.862, 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 made 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 help the petitioner's case, because he has 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.

8. In Alima Ahmed's case P L D 1984 SC 32 the following observation was made:‑

9. ..'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' of 'wilful' default and in ignoring the law laid down by this Court in Tirmizi's case. It was not the exercise of discretion by the Rent Controller but a finding of fact which is demonstrably incorrect that the ejectment of the respondent was disallowed by him. The first appellate authority reversed the finding on default and discovering no mitigating circumstances directed the ejectment of the tenant. The learned Judge was, with utmost respect, under a misapprehension that it was a case of exercise of discretion by Controller which was proper one and the first appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal. Further, from the supposed hardship of the law, the learned Judge should not have superimposed a procedure of two notices, extraneous to the statute whose provisions were to be interpreted and applied. The Ordinance protects the tenants against eviction and enhancement of rent, hereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. If promptness in payment of rent, with option to the tenant to deposit it with the Rent Controller is a condition precedent for enjoying such protections it cannot be relaxed or diluted on grounds of economic well‑being, fairness or in the name of justice.

10. "We find that the respondent was clearly in default in paying or tendering the rents for April and May, 1970 and from October, 1970 to December, 1970. There was no plausible explanation for such default. He was, therefore, liable to ejectment. "

11. In Abdul Aziz v. Abdul Ghani 1986 S C M R 1857 the following observation was made:‑

12. " .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."

13. Taking into consideration the aforestated authorities and provisions of law of West Pakistan Urban Rent Restriction Ordinance one cannot escape the conclusion that a plausible explanation has been given for the default. No hard and fast rule for exercise of discretion can be laid down as it entirely depends upon the facts and circumstances of each case. The landlord had adopted a mode of realising rent consistently for a long period whereby the tenant was led to believe that if rent is paid in that manner it will not amount to a default. In such circumstances if the landlord by fraudulent means creates a default, the discretion may be exercised in favour of the tenant.

14. I, therefore, set aside the impugned order and allow the appeal.

15. H.B.T./B‑84/K Appeal allowed.