BATUL FIDA HUSSAIN SHAIKHA Versus BURMA OIL MILLS LTD

1. This is a First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 against the order, dated 28‑7‑1980 of VIII Senior Civil Judge and Rent Controller, Karachi whereby he has dismissed the Rent Application No. 2145/1971.

2. The brief facts of the case are that appellant filed rent application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of respondent from the premises on Plot No.l, Survey Sheet G.K.8, Ghulam Hussain Quarters, Karachi. The respondent is tenant of appellants at a monthly rent of Rs.1,082 of the above premises. The respondent failed to pay or tender arrears of rent for a period from 1‑1‑1971 to 31‑7‑1971 amounting to Rs.7,574. The only ground of default was urged in the tent application.

2. The respondent filed written statement in which he took the plea that rent for every three months or six months were being tendered when appellants used to send letter and they had been making immediate payment. He has further stated in the written statement that in lieu of this understanding of custom no payment of rent was made without letter from the appellants and that they had never informed about the change of practice in respect of mode of payment of rent. They had not demanded the monthly rent and even the demand letter was not sent. The learned Rent Controller on the pleadings of the parties framed the following issues on 8‑7‑1975.

(1) Whether there is any relationship of landlord and tenant between the parties?

(2) Whether the opponent is a defaulter?

(3) What should the order be?

3. Appellants before the Rent Controller examined their attorney Ibrahim whereas Ayoob, Manager of the respondent, was examined on the other side. There is no dispute about relationship of landlord and tenant between the parties. Therefore, the learned Rent Controller has decided this issue in the affirmative.

4. Ibrahim, attorney of the appellants, Ex.5. has deposed before the learned Rent Controller that the respondents had not paid the rent since January, 1971 in spite of demands, and he had never agreed to accept monthly rent after 4 or 6 months. Mohammad Ayoob, Manager of the respondents, has stated that they used to receive letters and on receiving the letters immediate payments were made. These letters are Ex.A‑1 to A‑6, were sent Essayi Ebrahimji previous landlords such other letters were also being sent by Fida Hussain M. Shaikh & Company and such letters are at Exs.B‑1 to B‑10. Mohammad Ayoob further stated that appellants had never sent any notice or letter by which they demanded rent to be paid every month. His contention is that this case has been filed with ulterior motive for creating grounds for filing ejectment application. Rent was offered to the appellant but he did not accept. The respondents then sent cheque by registered post A.D. with letter but the same was refused, therefore, they started depositing rent with Rent Controller in Rent Case No.67/71.

5. I have heard 11r. S. Azizul Hassan, learned counsel for the appellants, and Mr. Iqbal Qazi, learned counsel for the respondents. Mr. Hashmi has contended that there is no such written agreement between the parties, therefore, it was incumbent upon the respondents to tender rent monthly which they had failed to do so, therefore, the learned Rent Controller has erred in dismissing the rent application. He has further argued that according to law respondents are liable to be evicted. Mr. A.H. Hashmi has relied upon the cases reported in 1973 S C M R 598, 1975 S C M R 355; 1979 S C M R 608; 1981 S C M R 93; 1983 S C M R 1205.

6. On the other hand, Mr. Iqbal Qazi, the learned counsel for the respondents, has argued that since so many years the appellants and the previous owners of the premises used to send letters and then the amount was immediately sent by way of cheque, therefore, this practice continued. His contention is that appellants deliberately not sent demand letters and the respondent were under the misunderstanding that rent will be sent after receiving the letters, therefore, there is no wilful default and Rent Controller has exercised his discretion rightly dismissing the rent application of the respondents. He has relied on the cases reported in 1973 S C M R 606, P L D 1976 Lah. 1052; P L D 1976 Lah. 862; P L D 1981 Kar. 150 and 1982 C L C 217. He has contended that this case was filed under old law i.e. West Pakistan Urban Rent Restriction Ordinance, 1959, therefore, the respondents have rights of two appeals and in the present case subsequently the Sind Rented Premises Ordinance, 1979 was promulgated where parties have only right of one appeal.

7. This is now settled law that it is duty of tenant to pay rent regularly every month but circumstances of each case could be considered. Now I proceed to discuss the facts of the present case and relevant law.

(i) In case Hafiz Dawood v. Abdul Ali Khan reported in 1973 SCMR 598 it was stated that there was dispute about the rate of rent and tenant tendered rent in lump sum on two occasions. It has been held that tender of such rent not proper and leave to appeal was refused.

(ii) Regarding case Sh. Mohammad Hussain & Co. v. Mian Mahmood Ahmed Khan reported in 1975 S C M R 355. In this case the practice grew up and tenant paid rent in a lump sum after every six months or one year but tenant failed to prove that practice and has not pleaded in written statement therefore, it was decided such contract was contrary to the provisions of section 13(2) of the Ordinance.

(iii) In case Amanat Khan v. Mst. Begum Jan and others reported in 1979 S C M R 608 the tenant paid rent of five months and asked for adjustment. It has been decided that mere fact of tenant having at time paid rent after two, three or four months could not absolve tenant of his liability. In that case all the three Courts below declared the tenant as defaulter.

(iv) So far case of Abdul Rashid v. Saleh Mohd reported in 1980 S C M R 506, the fact are that by way of practice rent was paid periodically at intervals of 3 or 4 months and some receipts were also produced and rent was not paid on the hope that landlord or his son will come and collect the rent. There were concurrent findings of three Courts, the Supreme Court held that landlord condoned the delay but not that he varied terms and conditions of tenancy overruling provisions of law.

(v) In case of M/s. Tar Mohammad Janoo v. Taharali and others reported in 1981 S C M R 93, it has been observed that mere fact that a tenant made it a habit not to pay rent regularly every month and landlord tolerated his default and accepted rent at irregular intervals which cannot be deemed to have established a practice of payment of rent whenever tenant please.

(vi) In Haji Mohammad Qasim v. Mehraban Ali reported in 1983 SCMR 1205, in that case the tenant produced three receipts and took plea that landlord accepted rents in intervals, the Supreme Court has not accepted this plea and held that it does not mean that landlord does not desire or accept the rent to be paid in time.

(vii) The facts of the case of Mrs. Alima Ahmed v. Amir Ali reported in P L D 1984 SC 32 are that tenant failed to pay rent from April 1970 to February 1971, in spite of repeated demand from landlady and arrears were sent through money order which landlady refused. It has been held by the Honourable Judges of the Supreme Court that 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, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof. The promptness in payment of rent with option to the tenant to deposit it with the Rent Controller is a conditions precedent for enjoying such protection it cannot be relaxed or diluted on grounds of Economic well being fairness or in the name of justice".

8. It has been held that practice of attorney, collecting accumulated rents of no avail in explaining delay and default.

9. The case‑law quoted by Mr. Iqbal Kazi, the learned counsel for the respondent tenant is as under:‑

(viii) In case of Mohammad Alam v. Noor Mohammad reported in 1973 S C M R 606 the tenant failed to prove the practice of payment of rent after two months or three months and quoted 'solitary' instance of payment of rent for three months would not lead to a presumption that practice of receiving rent periodically was adopted by landlord. However, in that case it has been observed, The Rent Controller could however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord has made tenant believe that rent was not to be paid every month."

(ix) The case relied upon by the respondent reported in P L D 1976 Lah. 1052 Mohrban Ali v. Haji Mohammad Qasim, in which practice of payment of rent was accepted by High Court but Supreme Court reversed that decision and case is reported in 1983 S C M R 1205. The next case referred in P L D 1981 Kar. 150 Amir Ali v. Mrs. Alima Ahmed has been overruled, by Supreme Court and it is reported in P L D 1984 SC 32.

(x) I also refer few cases on this point. In Hayat Ali v. Mrs. Aziz Mohammad, reported in 1980 S C M R 298 it has been observed that if default is unavoidable then no‑compliance is excusable and delay could be condoned.

(xi) The facts of the case of Burma Oil Mills Ltd. v. Amir Ali, reported in 1983 C L C 1990 are that the tenant in their written statement took the stand that rents had been billed and collected therefore, it was asserted that an implied contract had been established between tenant and landlord where under the said firm used to send their bills of rents for three months or six months and the tenants used to make payments immediately.

10. It was held that the Rent Controller exercised discretion properly not evicting the tenant although default was proved. In this case Justice B.G.N. Kazi has discussed the entire case‑law as referred above.

(xii) A copy of order of Supreme Court dated 24‑1‑1981 in Civil Petition for Special Leave to Appeal No. K‑5/81, M/s. Abdul Rehman v. His Holiness Dr. Syeedna N. Burhanuddin has been filed. The Leave to Appeal was granted and My Lord Justice Mohammad Haleem, C.J.'s observations are as under:‑

11. "In seeking Leave to appeal the petitioner contended that in the absence of the 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 first Appellate Court relying principally on Dr. Syed Waris Ali Tirmizi v. Mst. Liaqat Begum 1980 S C M R 601. This contention needs consideration as the facts in the cited case are distinguishable. Accordingly we grant leave to appeal to the petitioners ‑ Security for costs Rs.1,000 Status quo as to possession."

12. Now facts of the Rent case.

13. The contents of the letters sent by Essajee Ebrahimjee & Co. Ex. A/1 to A/6, are as under:‑

14. "M/s. Burmah Oil Mills Limited, Karachi.

15. Dear Sirs,

16. From our books we find that an amount of Rs.(?) being arrears of rent upto (?) is due from you and shall thank you if you will please favour us with your cheque for the said amount at an early date.

17. Yours faithfully

18. Letter Ex.A/1 is for Rs. 3641/75 upto August, 1967.

19. Ex.A/2 is for Rs.3641/75 upto 30th November, 1966.

20. Ex.A/3 is for Rs.3641/25 upto 28th October, 1967.

21. Ex.A/4 is for Rs.3641/25 upto May, 1967.

22. Ex.A/6 is for Rs.3641/25 upto 29th February, 1968.

23. Ex.A/5 is for Rs.3641/25 upto November, 1967.

24. In the same manner M/s. Fida Hussain M. Sh. Company, present landlord also repeated the practice and used to write letter. Such ten letters have been produced as Ex.B/1 to B/10. The language and contents of the letters are same as were written by Essaji Ebrahimjee.

25. B/1 for Rs.3246 arrears upto 1‑8‑1968.

26. B/2 for Rs.3246 arrears upto 30‑11‑1969.

27. B/3 for Rs.3246 arrears upto 28‑2‑1969.

28. B/4 for Rs.3246 arrears upto 31‑5‑f969.

29. B/5 for Rs.3246 arrears upto 31‑8‑1969.

30. B/6 for Rs.3246 arrears upto 30‑11‑1969.

31. B/7 for Rs.4328 arrears upto 31‑12‑1969 to 31‑3‑1970.

32. B/8 for Rs.3246 arrears upto 30‑6‑1970.

33. B/9 for Rs.3246 arrears upto 30‑9‑1970.

34. B/10 for Rs.3246 arrears upto December, 1970. and rent was being tendered immediately as getting letters.

35. On 10th September, 1971 a cheque for Rs.8,656 Ex. D/1 was sent to the appellant being rent from January, 1971 to August 1971 the same was returned by the appellant and it is at Ex. D/2, whereas Rent Application was filed on 5‑8‑1971. From the Rent Application it appears that no notice or bill was sent by appellant. These documents clearly show that respondents used to send the rent after receiving letter/demand/bill from the appellant and not a single instance of default has been pointed out. There is nothing on record to show that ever since tenancy, the appellants had ever received rent monthly. The circumstances that the commercial value of the premises have increased the landlords should not be allowed to take benefit and adopt tactics by which they make out grounds for eviction.

36. The Rent Controller on the evidence produced before him came to conclusion that since the respondents established an practice of issuing letters for the recovery of rent and had been collecting rent in lump sum therefore, he has decided that default in payment of rent is neither deliberate nor wilful on the part of the tenant. The landlord /respondent adopted the aforesaid established practice.

37. It is clear from the decisions discussed above that parties could not contract themselves out of the provisions of section 13(2)(1) of the Rent Ordinance by establishing different practice with regard to the payment of rent.

38. In the instant case from the very start this practice was that the tenants used to pay the rent after a period of three months‑or four months. It could, therefore, be presumed and it is also matter of record that landlord has not only repeatedly condoned the default but was himself sending the letter which may be termed as a bill and respondent used to make payment immediately. On being satisfied with the evidence and the record Rent Controller exercised his discretion against directing eviction of the tenant although default was otherwise proved. The Rent Controller has exercised his discretion properly.

39. The upshot of the above discussion is that respondent in my, view has not committed wilful default.

40. I accordingly dismiss the appeal and maintain the order of the Rent Controller consequently appeal stands dismissed. However, there will be no order as to costs.

41. A.A./B‑42/K Appeal dismissed.