MALKA BEGUM vs MEHR ALI HASHMI

M. S. H. QURAISHI, J.-The question for decision in this appeal for which leave had been granted is whether in view of the denial by the landlord of the tenant's assertion as to the past practice of collection of rents at intervals through rent collector and also in the absence of any proof thereof the tenant was liable to ejectment on the admitted position that the rents had not been paid to the landlord.

2. In the proceeding instituted on 22-5-1971 for ejectment of the tenant upon the allegation of default in payment of rent for the period from December 1970 to April 1971, his defence was that according to the past prevailing practice rent was collected by the rent collector of the landlord for 2-3 months or more at a time ; that the rent collector had failed to collect the rent in question and that when the rent was tendered, the landlord refused to accept the same, with the result that the tenant had to remit the arrears by money order on 27-8-1971. In support he produced eight rent receipts, some of which showed that rent was collected in lump sum for a period of more than one month at a time. The Controller, thereupon, decided the issue against the landlordy and dismissed her application on 30-8-1975. Her appeal, however, succeeded and an order of ejectment was passed by the Additional District Judge on 31-1-1977. The tenant preferred a second appeal in the High Court which succeeded on 7-4-197.9 upon the view that though the question was not one of vested right of the tenant but it was of the practice of the landlord of collecting rent in lump sum which was a good defence for rebutting the allegation of default.

3. It is by now well-established that tender of rent after the period prescribed by law, is no proper tender and that the tenant is guilty of default though the acceptance of delayed payment can mean a condonation of that default. See Fida Hussain v. Muhammad Ibrahim (1) and Alif Din v. Khadim Hussain (2), However, since the Controller has a discretion to direct or not the ejectment of the tenant in spite of the latter's default, the conduct of the parties may be of relevance. A defence based merely on the c ground of the landlord receiving or collecting rents at intervals of several months has, however, not been considered as a good defence. See Textile Trading Co. Ltd. v. Jalilur Rehman (3) and Muhammad Hasan & Co. v. Mahmood Ahmad (4). In any case, since the tenant is under a legal obligation to pay rent to the landlord and not that the landlord should go to collect, the rent, the onus to establish the practice as a defence lies heavily on the$ tenant.

4. In the case in hand, the landlord had denied the practice, in repudiation of which the tenant had produced eight receipts Exhs. 0/2 to 0/9, only for of which, according to learned counsel, showed receipt of intervals as given below : {{TABLE TEXT}}

(i) Exb. 0/5 dated 5-11-1968 for three months, i. e. 8/68 to 10/68; (11 1972 SCMR 262 (2) 1980 SCMR 767

(3) 1972 SCMR 384 (4) 1975 SCMR 355

(ii) Exh. 0/4 dated 14-3-1969 for three months, i. e., 12/68, 1/69 and 2/69.

(iii) Exh. 0/2 dated 16-1-1970 for three months, i,e,, 10/69 to 12/69 ; and

(iv) Exh. 0/6 dated 10-7-1970 for two months i. e., 5/70 and 6/70. {{FOOT NOTE}} The other receipts relate to rents for a single month. The tenant, who has been in the property for more than twelve years, was not able to produce any other evidence to establish the practice. On the contrary, he admitted in his cross-examination : "It is correct to suggest that all the receipts with me, which have not been produced, are receipts for each single months." On E such evidence, the defence based on the plea of the landlord's practice of collecting rent at intervals was not a good defence. The tenant was clearly in default and his tendering the rent subsequent to the institution of the ejectment proceeding was of no avail. The High Court had thus fallen in error in reversing the order of the Additional District Judge.

5. We accordingly allow this appeal, set aside the order of the High Court and restore that of the Additional District Judge.