UNITED BANK LIMITED Versus IV COURT OF ADDITIONAL DISTRICT JUDGE EAST, KARACHI

NADEEM AKHTAR, J.--- The petitioner has impugned the judgment delivered on 27.03.2007 by the learned IVth Additional District Judge Karachi East in First Rent Appeal No.230/2001 (old No.334/2000), whereby the said appeal filed by the tenant respondent No.3 has been allowed and the order of his eviction passed on 10.03.2000 by the learned VIth Rent Controller Karachi East in the petitioner's Rent Case No.36/1997, has been set aside.

2. The relevant facts of the case, as averred in the petition, are that the petitioner-bank is the owner of building known as 'Chowrangi Mehal', constructed on Survey No.922, Survey Sheet No. J.M.2, situated at the junction of Clayton Road/Deepchand Oujah Road, Jamshed Quarters, Karachi, consisting of shops on the ground floor and flats on the four upper floors. Flat No.409 in the said building was rented out by the petitioner to respondent No.3 vide rent agreement dated 05.11.1976 at monthly rent of Rs.225.00 payable regularly in advance. The petitioner filed Rent Case No.36/1997 against respondent No.3 seeking his eviction on the grounds of default in payment of rent with effect from July 1996 and subletting. However, the ground of subletting was not pressed by the petitioner in its said case. After hearing the parties, the application of the petitioner on the ground of default was allowed by the Rent Controller vide order dated 10.03.2000, and respondent No.3 was directed to vacate the demised premises within sixty (60) days. The above order was challenged by respondent No.3 by filing an appeal, which has been allowed by the learned appellate Court through the impugned judgment dated 27.03.2007.

3. Mr. Asim Iqbal, learned counsel for the petitioner, strongly criticized the impugned judgment by contending that the same is contrary not only to the material that was available before the appellate Court, but is also against the well-established principles of law laid down by the Hon'ble Supreme Court on the point of default in payment of rent. He submitted that it was an open and shut case of default as respondent No.3 attempted to tender rent for the months of July to November 1996 to the petitioner admittedly on 11.12.1996. He further submitted that the finding of the learned appellate Court that default by respondent No.3 was not established as the petitioner used to receive accumulated rent for several months from him, is contrary to law. He contended that as per the rent agreement between the parties, respondent No.3 was obliged to pay the agreed rent to the petitioner in advance on monthly basis; and after expiration of the agreement, respondent No.3 became the statutory tenant of the petitioner and as such the rights and obligations of the parties were governed by the Sindh Rented Premises Ordinance, 1979. He submitted that under the provisions of the said Ordinance, non-payment of rent would constitute default after sixty days from the date when the rent became due and payable. Without conceding that there was any such practice, it was urged by him that if the petitioner had accepted accumulated rent in the past, even then such practice could not override the law. In support of his submissions, learned counsel relied upon (1) Mrs. Alima Ahmad v. Amir Ali, PLD 1984 SC 32, (2) M/s. Pragma Leather Industries v. Mrs. Sadia Saijad, PLD 1996 SC 724, (3) Mst. Hajiani Aisha and others v. Abdul Waheed, PLD 1989 SC 489, and (4) Messrs Abdul Razzaque Abdul Sattar v. Abdul Shakoor and another, 1999 SCMR 519.

4. He further submitted that even after expiration of the tenancy period, the terms and conditions regarding the mode and time of payment between the parties were to continue to remain in force, and if the parties had mutually agreed for advance payment of rent for each month, then the said condition was binding on the parties even after expiration of the tenancy agreement. In support of this submission, he relied upon Messrs Uzma Construction Co. v. Navid H. Malik, 2015 SCMR 642. He also submitted that under section 15 of the Ordinance of 1979, since tenancy between parties was admittedly based on a written agreement, respondent No.3 was liable to pay rent within fifteen days after expiration of period for payment of rent fixed in the agreement, and in the absence of rent agreement, within sixty days after the rent became due and payable failing which respondent No.3 was to face consequences of ejectment. He relied upon Saifuddin and another v. Senior Civil Judge/Rent Controller VIII, Karachi (South) and 7 others, 2007 SCMR 128, in support of this contention. In view of his above submissions, he prayed that the impugned judgment, being contrary to law, be set aside.

5. On the other hand, Mr. Muhammad Sadiq Hidayatullah, learned counsel for respondent No.3, contended that the eviction application filed by the petitioner was not maintainable as the same was filed by an incompetent person without any lawful authority from the petitioner. He submitted that this petition is liable to be dismissed on this ground alone. In support of this contention, he relied upon Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan, PLD 2004 Karachi 17. He contended that respondent No.3 had successfully proven the practice that the petitioner used to receive accumulated rent from him at its own will and convenience, and as such there was no default on his part. He further contended that the eviction order passed by the Rent Controller was based on misreading and non-reading of evidence; whereas, the impugned judgment of the learned appellate Court is well-reasoned and based on an authority of the Hon'ble Supreme Court. He also contended that the order of eviction was rightly set aside by the learned appellate Court and as such the impugned judgment does not require any interference by this Court. The learned counsel relied upon (1) Abdul Aziz v. Abdul Ghani, 1986 SCMR 1857, (2) Messrs Service Industries Ltd. v. Muhammad Raghib and others, 1986 SCMR 637, and (3) Inayat Ullah v. Zahoor-ud-Din and another, 1987 SCMR 1313, in support of his submissions.

6. I have heard the learned counsel for the parties at length and with their valuable assistance have carefully examined the material available on record, including the R&P and especially the order passed by the learned Rent Controller and the impugned judgment of the learned appellate Court, as well as the law cited at the bar. Following issues were settled by the Rent Controller:

"1. Whether the ejectment application is maintainable?

2. Whether the opponent has committed willful default in payment of rent?

3. Whether the opponent has subletted (sic) the demised premises without the permission/consent of the applicant?

4. What should the order be?"

7. In his written statement, respondent No.3 had raised an objection regarding the maintainability of the eviction application on the ground that the same "was barred under the Companies Ordinance". It was observed by the learned Rent Controller that in his written statement and affidavit-in-evidence, respondent No.3 had admitted that the officer who had verified the application was admittedly the Rent Collector of the petitioner; and, it was held that the definition of landlord in the Ordinance of 1979 also includes Rent Collector, who is competent to file a case against the tenant on the ground of default. In view of the above, issue No.1 was decided against respondent No.3 by rejecting his objection and holding that the petitioner's application was maintainable.

8. In his order dated 10.03.2000, it was observed by the learned Rent Controller that all the rent receipts produded by respondent No.3 pertained to the period July 1994 to June 1996; default by respondent No.3 was alleged with effect from July 1996, but no receipt was produced by him for the period of alleged default; respondent No.3 wanted to show that there was no default on his part and rent for the period of the alleged default was tendered by him through pay order dated 11.12.1996 in view of the practice between the parties that the petitioner used to accept, rent in lump sum; and, respondent No.3 had failed to bring any material on record to show that there was anything in writing from the petitioner or its Rent Collector that accumulated rent was to be paid for six months and not on monthly basis. In view of the above, it was held by the Rent Controller that practice of payment of rent cannot prevail over the law; rent for the months of July to September was not paid within time by respondent No.3, and the rent thereof was tendered by him after committing default; rent for the period of default was not tendered through money order; and since rent for the months of July, August, September, October and November 1996 was tendered on 11.12.1996, default for the months July to September 1996 by respondent No.3 had been established. In support of his findings, the learned Rent Controller had relied upon the cases of Messrs Abdul Razzaque Abdul Sattar, Mst. Hajiani Aisha and M/s Praqma Leather Industries (supra). Accordingly, issue No.2 regarding default by respondent No.3 in payment of rent was decided by the Rent Controller in favour of the petitioner.

9. As noted above, issue No.3 regarding subletting by respondent No.3 was not pressed by the petitioner. In view of the findings on issues 1 and 2, issue No.4 was decided in favour of the petitioner by allowing the eviction application.

10. The findings of the learned Rent Controller regarding maintainability of the petitioner's application were maintained by the learned appellate Court by holding that the rent proceedings were admittedly instituted by the petitioner through its authorized officer who was empowered through a power-of-attorney executed in his favour by the Executive Board of the petitioner; the Executive Board of the petitioner was vested with all such powers at the relevant time; the said power-of-attorney was filed by the petitioner along with the eviction application, the authenticity and veracity whereof was not challenged by respondent No.4 in his written statement; and, the rent proceedings could not be held to have been instituted without authority merely because the power-of-attorney was not produced in evidence.

11. It is to be noted that the above concurrent findings of the two Courts below regarding the maintainability of the petitioner's application were not challenged by respondent No.3, and as such the same attained finality long ago. In my view, respondent No.3 cannot agitate this ground in this petition, filed by the petitioner. Even otherwise, this objection has no force in view of the unreported order passed by the Hon'ble Supreme Court on 01.03.2011 in Civil Appeal No.4-K/2009, wherein a copy of the power-of-attorney was available on record. After perusing the same, it was observed by the Hon'ble Supreme Court that it may not have been produced at the time of filing the Suit due to inadvertence, and it was held that the defect of non-production of power-of-attorney at the time of filing the Suit was technical in nature and was curable. In my humble opinion, the instant case stands on a better footing because the power-of-attorney was admittedly filed with the eviction application, it was available on record before both the Courts below, and it is available in the present proceedings before this Court also.

12. On the issue of default, the learned appellate Court disagreed with the findings of the learned Rent Controller and set aside his order whereby eviction of respondent No.3 was ordered on the ground of default. The sole ground on which the order of the learned Rent Controller has been set aside is that it was incomprehensible that in the long duration of tenancy the petitioner never objected in receiving arrears of rent in lump sum. By relying upon Abdul Aziz v. Abdul Ghani, 1986 SCMR 1857, the learned appellate Court observed that it was held in the said authority by the Hon'bie Supreme Court that landlord himself had adopted practice of receiving arrears of rent in lump sum and such practice was in vogue from very beginning of the tenancy; though rent had not been paid by the tenant to landlord as required under law, yet conduct of the landlord himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction application; and, conduct of the tenant did not make him a willful defaulter. Following the above authority and observing that there was a longstanding relationship of landlord and tenant between the parties without any history of previous default, it was held by the learned appellate Court that the Rent Controller ought to have exercised the discretion in favour of respondent No.3; and accordingly, the appeal filed by respondent No.3 against his order of eviction was allowed.

13. I have closely examined the case of Abdul Aziz (supra) relied upon and followed by the learned appellate Court. It reveals that not a single question was put to the tenant in the said case about payment of rent by the 15th of each month, and the landlord himself accepted the rent in lump sum. Whereas, in the instant matter a specific question was put to the tenant/respondent No.3 in his cross-examination when he specifically admitted that it was correct that as per the agreement he was liable to make payment of rent every month; and, the witness of the landlord/petitioner had specifically stated in his affidavit-in-evidence/examination-in-chief that respondent No.3 had committed default with effect from July 1996, and in his cross-examination he denied the suggestion that accumulated rent for one year or two years was being accepted from respondent No.3. In my humble opinion, the case of Abdul Aziz (supra) was clearly distinguishable and thus inapplicable in the instant case in view of the above, and as such it could not have been applied or followed in the instant case.

14. I shall now discuss the cases cited and relied upon by the learned counsel for the petitioner.

A. In the case of Mrs. Alima Ahmad (supra), the landlady filed an eviction application against her tenant seeking his eviction on the ground of default in payment of monthly rent. The tenant resisted the application by alleging that the landlady intentionally delayed the receipt of payment of rent from time to time. He claimed that the landlady used to receive accumulated rent from him. The application was dismissed by the Rent Controller by holding that the landlady had failed to prove default on the part of the tenant; the conduct of the landlady showed that she had been accepting accumulated rent from the tenant sometimes in cash and sometimes through cheque, and therefore, there was no willful or deliberate default on his part nor could he be called a persistent defaulter. Appeal filed by the landlady was allowed by the learned first appellate Court by directing the tenant to vacate the demised premises within two months. However, the second appeal filed by the tenant before the High Court was allowed by holding that the Rent Controller did not exercise discretion in favour of the tenant; it is the statutory duty of a tenant to pay rent to the landlord in terms of the provisions of section 13(2)(i) of the Ordinance of 1959, but if a landlord by his representation/conduct omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance of 1959 is not to be adhered to, and thereafter the landlord wishes to enforce the said provision strictly, in that event 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 the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein; and, any other view will result in miscarriage of justice. The judgment of the learned High Court allowing the second appeal of the tenant in the above terms was assailed by the landlady before the Hon'ble Supreme Court.

In appeal, the Larger Bench of five Hon'ble Judges of the Supreme Court was pleased to hold inter alia that the alleged practice of the attorney of the landlady of collecting accumulated rents was of no avail in explaining the delays and defaults as held in Syed Waris Ali Tirmizi v. Liaquat Begum, 1980 SCMR 601; the Rent Controller was clearly in error in holding that there was no persistent or willful default and in ignoring the law laid down in Syed Waris Ali Tirmizi (supra); the first appellate Court reversed the finding on default and discovering no mitigating circumstances, directed ejectment of the tenant; the learned High Court was under a misapprehension that it was a case of exercise of discretion by the Rent 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; the law 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; 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 protection, it cannot be relaxed or diluted on the grounds of economic well-being, fairness or in the name of justice ; the tenant was clearly in default in paying or tendering the rent, there was no plausible explanation for such default, and therefore he was liable to ejectment; and, the learned High Court should not have superimposed a new procedure extraneous to the statute whose provisions were to be interpreted and applied. The appeal filed by the landlady was allowed with costs by the Hon'ble Larger Bench of the Supreme Court by directing the tenant to handover vacant possession of the premises to her.

B. In the case of M/S Pragma Leather Industries (supra), the authoritative pronouncement of the Hon'ble Larger Bench in Mrs. Alima Ahmad (supra) was followed by the Hon'ble Supreme Court by observing that the same directly deals with the question of practice of making payment of accumulated rent of several months, and further observing that it was held therein that such practice cannot negate the express provision of law.

C. In Mst. Hajiani Aisha (supra), the Hon'ble Supreme Court was pleased to hold that it has been consistently held by the Hon'ble Supreme Court that the mere fact that the landlord accepts rent from the tenant periodically does not mean that he does not desire or expect rent to be paid in time as required by law; and, defense based on the ground of landlord receiving or collecting the rent at intervals of several months is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent from him.

D. In Messrs Abdul Razzaque Abdul Sattar (supra), the earlier decisions in the cases of Tar Muhammad Janoo v. Tahirali, 1981 SCMR 93, Shezan Ltd. v. Abdul Ghaffar, 1992 SCMR 2400 and Pragma Leather Industries (supra), were reaffirmed by the Hon'ble Supreme Court that practice of accepting accumulated rent or sending monthly rent bills by a landlord, in no way, absolves the tenant from discharging his statutory obligation of paying the rent under the provisions of rent laws.

15. The learned counsel for respondent No.3 has placed reliance upon Abdul Aziz (supra), which was clearly distinguishable and inapplicable and thus I ought not to have been applied or followed by the learned appellate Court, as already held by me in paragraph 13. He also relied upon Inayat Ullah (supra), which is also distinguishable as it was found that the landlord in the said case had deliberately created difficulties for the tenants by not accepting the rent in the hope that some omission or slip on the part of the tenants may enable him to carve out a ground for their eviction; and, conduct of the tenants indicated no element of negligence on their part. He also referred to Messrs Service Industries Ltd. (supra), which reference was misplaced and irrelevant with profound respect to him, as the issue therein related to personal need of the landlord on the ground of reconstruction. Thus, the cases cited and relied upon by him are of no help to him.

16. In view of the law laid down by the Hon'ble Supreme Court, particularly the authoritative pronouncement by the Hon'ble Larger Bench in Mrs. Alima Ahmad (supra), it can be safely concluded that if the landlord accepts accumulated rent from the tenant periodically or with intervals, it does not mean that he does not desire or expect rent to be paid within time by the tenant as required by law, or that he has waived his right to claim rent within time; such practice by the landlord, in no way, overrides or negates the express provisions of law, nor can it absolve the tenant from discharging his statutory obligation of paying the rent to the landlord within time under the provisions of rent laws; even the Court has no power to superimpose any new procedure or method for payment of rent extraneous to the statute; it is the duty of the tenant to pay rent to the landlord within time as required by law through any of the modes prescribed by law, and it is not the duty of the landlord to collect rent from the tenant or to remind or chase him for payment of rent; and, payment of accumulated rent even once by a tenant would make him liable to eviction.

17. In view of the above discussion, the impugned judgment is liable to be set aside as it cannot be allowed to remain in the field. Consequently, this petition is allowed with no order as to costs, the impugned judgment of the learned appellate Court is hereby set aside, and the order passed by the learned Rent Controller for eviction of respondent No.3, is upheld/restored. There will be no order as to costs.

Foregoing are the reasons of the short order announced by me on 21.05.2015, whereby this petition was allowed.

SL/U-3/Sindh Petition allowed.