ABBAS MUHAMMAD ALI Versus MUHAMMAD SHAFI PURI

This second appeal is directed against the impugned judgment dated 18‑11‑1979, of IInd Additional District Judge, Karachi, whereby order of ejectment passed by the learned Rent Controller on 7‑8‑1975 on the ground of default has been reversed and in consequence ejectment application has been dismissed.

2. Briefly stated the relevant facts are that appellants (hereinafter to be referred as landlords) filed ejectment application under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959, against respondent (hereinafter to be referred as tenant) on the grounds of default in the payment of monthly rent for five months from April 1973 to August 1973 and sub‑letting. Tenement to question is a shop situate in building known as Bastaki Manzil. On Plot No. 22 M.R. 6, Akhund Rehman Street, Karachi‑2, on monthly rent of Rs.42.50. So far as sub‑letting is concerned, it was alleged before the learned Rent Controller that the tenant had illegally and without permission of the landlords sub‑let the tenement to M/s. Saeed & Sons who are carrying on business in the disputed premises. Tenant contested the proceedings and filed written statement in which the allegations have been denied. About sub‑letting the plea taken by the tenant is that he is carrying on his trade and business in the name and style of M. Saeed & Sons and he did not sub‑let the premises to am one else. About default the plea taken in the written statement is that on behalf of landlords rent used to be collected by the rent collector who used to come to the shop irregularly to collect rent in lump sum. Accordingly, the learned Rent Controller framed two issues with regard to the sub‑letting and alleged default. Landlords examined Abbas s/o Muhammad Ali, attorney and one of the owners of the building in dispute and Abdul Qadir, who used to collect the. rent, Tenant examined himself. The learned Rent Controller passed the order of ejectment on the ground of default only while he found issue of sub‑letting as not proved. It is stated to the memorandum of second appeal in the High Court in paragraph 5 that issue with regard to sub‑letting was not pressed by the landlords before the learned Rent Controller. However, order of ejectment passed on the basis of default has been set aside by the 1st Appellate Court.

3. The only point urged in the second appeal is whether on the basis of evidence produced before the learned Rent Controller, default as alleged has been proved or not and whether the default was wilful and intentional rendering the tenant liable to be ejected. Mr. Peshori, the learned counsel for the landlords, contended that the non‑payment of rent for the period alleged stands admitted in the written statement filed by the tenant. On the other hand, Mr. Hassan Asghar Rizvi, Advocate for the tenant, has submitted that there was practice between the parties for collection of rent periodically by the rent collector who came to the shop of the tenant irregularly. He has further stated that this fact is further proved by evidence on the record and rent receipts produced by the tenant. The tenant has produced five such receipts Ex. 1/G, Ex. 1/H, Ex. 1/I, Ex. 1/J and Ex. 1/K. Ex. 1/G shows rent having been accepted for two months together i.e. for August and September, 1970. Ex. 1/H shows rent from May to September 1971, i.e. for five months was accepted in lump‑sum on 12‑10‑1971. Ex. 1/1 shows rent having been accepted on 6‑1‑1972 for two months i.e. for November and December 1971, Ex. 1/J shows rent for two months i.e. for January & February 1972 was accepted together on 6‑3‑1972. Ex. 1/K shows rent for three months i.e. October, November and December 1972 was accepted on 5‑1‑1973. Signatures on the receipts mentioned above are not denied by the landlords. On the other hand, it has been contended on behalf of the landlords that on these occasions delay in the payment of rent was condoned as acts of indulgence and there was no intention that the rent was to be accepted periodically. Additionally, the tenant has taken the plea that he did not know the address of the landlords as such he had to wait for the return of the rent collector who did not come during the period of default alleged.

4. On the other hand, Mr. Hassan Asghar Rizvi submitted that it has been proved by evidence produced on record that there was implied agreement between the parties that the rent would be collected periodically by the rent collector who went belatedly to the shop of the tenant to collect the rent most probably for the reason that the amount of monthly rent was as low as Rs. 42.50 for which the rent collector and the landlords did not care to collect the rent promptly every month. It was further submitted by Mr, Hassan Asghar Rizvi that copy of the notice allegedly addressed by the landlords to the tenant dated 28‑5‑1973 clearly shows that the landlords had a grievance against the tenant only on the ground of sub‑letting and no mention is made in it about non‑payment or delayed payment of the rent. This notice was allegedly sent to the tenant during the period of alleged default. Reliance is placed by Mr. Hassan Asghar Rizvi on the latest decision of our High Court in the case of Amir Ali v. Mrs. Alima Ahmed (.P L D 1981 Karachi 150) in which my learned brother Ajmal Mian, J. has discussed painstakingly the whole relevant case law on the subject of collection of rent in lump sum by the landlord and its consequences. Relying upon that reported case the learned counsel for the tenant has pointed out that in the instant case all the necessary requirements are fulfilled for exercise of judicial discretion in favour of the tenant, to say that default was not wilful and deliberate but the tenant was led by the landlords to genuinely believe that the only mode of payment acceptable to the landlords is that whenever the rent collector would come he would collect the rent periodically. In the instant case specific plea has been taken by the tenant in the written statement that rent collector of the landlords accepted rent periodically and not only this but in the evidence this fact has been reiterated in detail and further receipts issued by the landlords in the past have been produced to show that the rent had been accepted by the A landlords periodically. Perhaps this was the reason why in the notice sent by the landlords to the tenant alleging sub‑letting, no mention was made about non -payment of rent. My learned brother Ajmal Mian, J. in his elaborate judgment in the aforementioned reported case at page 162 has observed as under:‑‑

"I may observe that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of the Ordinance, but if a landlord by his representation/conduct/omission leads a tenant to believe that the time mentioned in the above provision of the Ordinance is not to be adhered to and, thereafter the landlord wishes to enforce the above provision strictly, in that event, in my opinion, the landlord should first put the tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of the above provision or in any case the ejectment proceedings in such a case should be proceeded with service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein. Any other view will result in miscarriage of justice. It is a matter of common knowledge that during the last few years in Karachi occupancy values inter alia of commercial premises and their rental have been enormously increased, which has generated desire on the part of some landlords to cause eviction of their tenants and in order to achieve the said object, they deliberately cause the commission of default in payment of rent by the tenants."

5. Another point argued by Mr. Peshori is that there was an agreement between the parties and the tenant cannot be allowed to prove a practice of acceptance of rent periodically by the landlords in variation of the terms of that agreement. He has drawn my attention to paragraph 3 of the application for ejectment filed by the landlords in the Court of learned Rent Controller in which it is stated that the shop has been rented to the tenant on the terms and conditions contained on the reverse of rent receipt and a specimen photo‑copy of which has been attached as annexure for ready reference. Now, the question arises whether terms and conditions printed on the back of rent receipt can be assumed to be an agreement between the parties. Tenant in his written statement has categorically denied in paragraph 3 that there were any terms and conditions settled between the parties at the time when he was inducted in possession as a tenant of the shop in dispute. Agreement in normal sense is understood to be the terms and conditions, whether in writing or oral, agreed upon by both the parties. An agreement is always bilateral in nature and can never be unilateral. Printing of rent receipts is exclusive privilege of the landlord and some times he does so during the subsistence of tenancy. Landlord never consults the tenant on the terms and conditions which he intends to have printed on the back of receipts. Rent receipts on the back of which terms and conditions are printed are not signed by the tenant but are only signed by the landlord. It, therefore, becomes doubtful whether the tenant accepts the position that terms and conditions on the back of rent receipts are binding on him. In the instant case, the tenant has denied this fact in the written statement that there was any agreement. Now, it is for the landlords to prove that there was agreement with the consent of both the parties. Since this assertion is made by the landlords then burden lies upon them to prove as is required under the basic provisions of the Evidence Act. These rent receipts cannot be proved as bilateral agreement between the parties and then if the landlord claims that there was implied agreement or oral agreement for that also burden lies upon the landlord to prove the fact which he asserts. In the instant case, the landlords have failed to prove this fact by any evidence and that there was written or oral bilateral agreement between the parties binding the tenant with terms and conditions on the back of rent receipts. In support of this proposition reliance can be placed on the case of Dr. Sakina Tapal v. Mst, Rashida Banu (1981 C L C 560). One other thing which goes against the argument on behalf of the landlords in this regard is the fact that there is sufficient evidence on record produced by the tenant to show that landlords themselves have not followed the alleged terms and conditions printed on the back of the rent receipts with regard to the payment of rent every month, as the landlords themselves have accepted rent in lump sum on various occasions in the past. If a landlord himslef does not follow what he desires the tenant to follow then no blame can be placed upon the tenant. For these reasons, I am of the view that terms and conditions printed by the landlord unilaterally on the back of rent receipts shall not make a binding agreement unless it is proved by the landlord that there is such agreement which is bilateral in nature and has complete consent of both the parties. In the instant case, therefore terms of tenancy would be governed by the relevant rent law.

6. In view of what is stated above my considered opinion is that in the instant case exercise of judicial discretion would be in favour of tenant as he appears to have committed default not wilfully and intentionally as such it should be treated as technical default. In the result, impugned order passed by the learned IInd Additional District Judge, Karachi, is hereby maintained and no interference is called for. Appeal is dismissed with no order as to costs.

MA.K./2519/K , Appeal dismissed .