MUHAMMAD SIDDIQ Versus FATIMA
1. By this appeal the order passed by the Rent Controller on 30‑9‑,1986 in Rent Case No.727 of 1985 has been impugned. By this order the appellant/tenant was directed to hand over the vacant possession of the disputed premises to the respondent /landlord within 90 days.
2. The facts briefly are that the present respondent /landlord had filed ejectment case against the present appellant/ tenant on the ground of default. The case is that the said premises was initially owned by her husband Muhammad Ibrahim who expired in the year 1969 with the result the respondent with her three children became owner/landlord of the premises in which she had inducted appellant as tenant in respect of Commercial tenement on the ground floor at monthly rent of Rs.125 plus betterment taxes of RS.13 p.m. It is her case that the appellant/tenant had defaulted in payment of rent since January and therefore, she filed the case for his ejectment on 21‑3‑1984. The appellant filed the written statement in which he had admitted to be the tenant at Rs.140 per month but he denied to have committed default as alleged. He also challenged the maintainability of the rent application on the ground that he was not served with the notice under section 13‑A and, therefore, no relationship of landlord and tenant was created amongst the parties. The applicant filed the affidavit‑in‑evidence of her son Muhammad Salim who used to collect the rent on her behalf while the opponent filed his own affidavit‑in evidence. Both were cross‑examined and the Rent Controller after hearing the arguments of the advocates of the parties, passed the impugned order which has been assailed in this appeal.
3. I have heard learned advocates for the parties. Mr. S. Inayat Ali, learned counsel for the appellant, has argued that appellant was a tenant of the original owner Muhammad Ibrahim and that he was not served with any notice by the present respondent as required under section 13‑A of the then applicable West Pakistan Rent Restriction Ordinance. He has further argued that it was the practice of the landlord to collect the rent through Muhammad Salim the Rent Collector periodically in lump sum and, therefore, also there was no default. He has, however, admitted that he has paid the rent upto the year 1983. Lastly he has argued that the respondents were a partnership firm known as Ibrahim & Sons under which name the rent receipts were issued, therefore, also the respondent could not file this application in her own name. In order to support the above contention, he has drawn my attention to the affidavit‑in‑evidence filed by Muhammad Salim and his cross‑examination in which Muhammad Salim has admitted that he used to collect the rent. In his cross‑examination Muhammad Salim has admitted that his father Muhammad Ibrahim had died in 1969 and that no notice of the death of his father was given to the appellant. Mr. S. Inayat Ali has further contended that the said Muhammad Salim has also admitted in his cross‑examination that there was an agreement between the parties which had not been produced and that he is unable to produce the receipts or counter‑foils with the signature of his mother. On account of payment of rent periodically in lump sum Mr. S. Inayat Ali has cited the following cases:‑
(1) Haji Muhammad Qasim v. Maharban Ali 1983 S C M R 1205, and
(2) Shaikh Muhammad Munir v. Mohammad Ilyas 1986 C L C 93.
4. The principle of law as laid down in the above two cases does not help the learned counsel. On the contrary the same goes against him as in the first cited case it was held:‑
5. "The reason. for the above‑noted view has been succinctly summed up by this Court in M/s. Jan Muhammad Chaudhry and Company v. Tahir Ali and others in C.P.S.L.A. No.K‑16 of 1979 which, in short, is that the mere fact that the landlord accepts the rent from a tenant periodically does not mean that he does not desire or expect it to be paid in time, as required by the Urban Rent Restriction Ordinance. People are generally hesitant to enter into litigation and do not usually rush to a Court of law on the very first default by the tenant. In most of the cases a landlord, out of decency or out of hesitation to resort to litigation, tries to induce and coax the tenant to pay the rent in time and accepts it even when a delayed payment is made. But if there are repeated delays on the part of the tenant there comes a time when the landlord feels that enough is enough and he cannot tolerate the delay in payment of rent any longer. If he goes to the Court at that stage, the tenant cannot be allowed to plead his own negligence. Moreover, in view of his habitual default the tenant, is such cases, in not even entitled to claim exercise of discretion by the Rent Controller in his favour."
6. In the second case as stated above it was held by Munawar Ali Khan, J (as he then was):‑
7. "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 he is on default. As is evident from above mentioned 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."
8. Mr. S. Inayat Ali has also relied on the cases reported in 1985 CLC. 21, 1987 C L C 1799 and P L D 1984 Kar. 373.
9. Replying the above contention Mr. K.B. Bhutto appearing for the respondent has argued that mere acceptance of rent periodically by the landlord would not absolve the tenant from the penalty liable to be afflicted on him on the ground of having committed default in payment of rent as required under law. He has argued that the appellant had been regular and habitual defaulter in payment of rent and always used to pay the rent collectively for a number of months. His contention is that mere tolerance of such irregular payment by the tenant and the forbearance would not mean that the landlord is not entitled to expect the payment of rent regularly from the tenant within due time. He has further contended that the above two cases cited by the appellant go against him. He has also relied upon the case of Messrs Tar Muhammad Janoo & Co. v. Taherali and others 1981 S C M R 93, Abdul Rashid v. Saleh Muhammad 1980 S C M R 506. In the above first cited case it was observed:‑
10. "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and 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."
11. In the second cited case it was observed:‑
12. "8. This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot 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 a practice which is contrary to the said law. Moreover, the mere fact that a 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 whitling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month. It was held by this Court in S. Riaz Ali v. Shabbir Ahmad Khan 1971 S C M R 598 that "a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/ respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent."
13. Replying to the contention of the appellant's counsel with regard to the non‑production of agreement and receipts Mr. K.B. Bhutto has argued that the agreement of tenancy is supposed to be with the tenant and, therefore, the same cannot be produced by the landlord. As far as the question of rent receipts is concerned Mr. K.B. Bhutto has pointed out that the first receipt is for the month of May, 1971 while the other is for the months April, May and June, 1983. From this he has argued that to support his contention that the appellant was inducted as a tenant in the year 1971 i.e. after the death of the original owner Muhammad Ibrahim and, therefore, firstly no notice under section 13‑A of the Rent Ordinance was required to be served and secondly that no rent has been paid by the appellant since July 1983 otherwise he would produce further rent receipts and also burden of proof is on the appellant. Mr. K.B. Bhutto has also drawn my attention to the cross‑examination of the appellant in which he has himself admitted that he has paid the rent upto 1983 but he has stated in cross‑examination that he cannot say for which month of 1983 he has paid the rent.
14. From the above discussion I am inclined to hold that the appellant was inducted as tenant by the respondent in the year 1971 A after the death of her husband Muhammad Ibrahim and as such the question of serving on him the notice under section 13‑A of repealed Ordinance does not arise. The very fact that admittedly the tenant has been paying the rent would show that the relationship of landlord and tenant did exist. I also hold that the appellant has been and has committed wilful default in payment of rent from July 1983 and is liable to ejectment. Mr. K. B. Bhutto has further relied on the case of Syed Saheb Jan v. Muhammad Aslam and 3 others 1986 C L C 1878 in which Munawar Ali Khan, J. (as he then was) has held:‑
15. "In view of the above authority, if the tenant's plea of non existence of relationship of landlord‑tenant between the parties, is decided against him, it would not be necessary to look for further proof as to his default in' payment of rent. This is because when the tenant does not recognize the other party as his landlord, he thereby indirectly admits that he has paid no rent to him. Consequently if in the instant case it is held that the relationship of landlord‑tenant exists between the parties it can automatically be held that the appellant has made default in payment of rent and therefore, is liable to be evicted from the disputed premises."
16. As far as the plea taken by Mr. S. Inayat Ali learned counsel for the appellant with regard to the respondents being the partnership firm Mr. K.B. Bhutto has contended that he has failed to prove the L existence of such part nership.'Mr. K.B. Bhutto has further argued that mere printing of Ibrahim and Sons on the head of the receipt would not ipso facto prove that it was the partnership. I am incline to agree with the learned counsel for the respondent.
17. From the above discussion I am of the view that the appellant has failed to prove his case and there is no merit in this appeal which is dismissed with costs. However the appellant is allowed two months, time to hand over the vacant possession of the premises to the respondent.
18. H . B . T . /M‑603/ K Appeal dismissed.