ABDUL AZIZ vs ABDUL GHANI

ORDER

ALI HUSSAIN QAZILBASH, J.--Leave is sought by Abdul Aziz petitioner against the judgment of a learned Single Judge of the Sind High Court, dated 20-10-1985, whereby the order of the Rent Controller, Karachi, dated 26-5-1984, was set aside and the order of eviction of the respondent was reversed.

2. The facts are that Abdul Ghani respondent is a tenant under the petitioner in the upper portion of bungalow No.77, Garden West, Karachi, at a monthly rent of Rs.260. It is alleged in the petition that the respondent was a habitual defaulter in the payment of rent with the result that the petitioner's wife filed an ejectment application No. 465 of 1977 against the respondent on 28-1-1977 for his ejectment for being in default in the payment of rent from 1st July, 1976. The respondent was served, he appeared, apologised and paid ten months rent and requested that the application for his ejectment should not be pressed and that he would pay the rent regularly.

The request was accepted and the ejectment application was allowed to be dismissed on 28-3-1977. Thereafter the respondent again defaulted in the payment of rent. Another petition bearing No. 263 of 1979 for the ejectment of the respondent for non-payment of rent was moved but this application was withdrawn on 14-4- 1979 because the wife of the petitioner was not the landlady of the suit premises. Meanwhile on the 1st of April, 1979 the present application for the ejectment of the respondent under section 13 of the West Pakistan Urban Rent Restriction Ordinance was filed on the ground of default by the respondent in the payment of rent from 1st July, 1978. This application was resisted by the respondent who denied the allegation of being a defaulter and took a stand that it was the petitioner who used to collect rent after a lapse of six to eight months. The pleadings of the parties resulted in the framing of three issues of which issue No.2 is material and is as follows:- "Whetherthe opponent is defaulter in the payment of rent?"

The learned Rent Controller after recording the evidence of the parties on this issue came to the conclusion that since the tenant had contravened the terms and conditions of the agreement and had not paid the rent regularly, he is a wilful defaulter and thus, ordered his ejectment from the suit flat. On appeal to the High Court, however, this finding of the learned Rent Controller was reversed with the following observation: "I am of the view that conditions appear to be unilateral because the original tenancy agreement between the parties was oral. The terms and conditions printed on the back of the receipts are generally signed by the landlord and not by the tenant. In these circumstances it cannot be said that the tenant accept the terms and conditions printed on the back of the receipts. There is nothing on record to suggest that the appellant had agreed to abide by such conditions. From the evidence it appears that the respondent used to collect the rent in lump" sum from the appellant. It also appears from Exh.12 that the respondent collected rent for the months of July to November, 1977 on 2-12-1977 and rent for the months of March, April, May and June was collected on 18-9-1978. In these circumstances it has come - on record that the respondent himself did not abide by the terms and conditions on the back of the receipts. It seems that not a single question was put to the appellant about payment of rent by 15th of each month. In the instant case the respondent himself accepted the rent in lump sum. If a landlord himself does not stick to the terms and conditions printed on the back of the receipts, then the tenant cannot be blamed for the same."

3. We have heard the learned counsel for the petitioner and gone through the judgments of the two Courts below. There is sufficient evidence on the record that it was the landlord who had adopted a practice of receiving the arrears of rent in lump sum. The perusal of the details of the receipts covering the period July, 1974 to May, 1978 given in the judgment of the High Court shows that on two occasions the landlord received the arrears of rent after eight months, on one occasion after ten months and on four occasions after a period of more than two months without any objection. This practice was in vogue from the very beginning of the tenancy.

Though the rent had not been paid by the respondent to the landlord as required under the law but the conduct of the petitioner himself was such which furnished sufficient justification to the appellate Court to exercise its discretion against him in dismissing his eviction petition. We also find that soon after the dismissal of the ejectment petition filed by Mst. Hamida Khanum, wife of the petitioner, the respondent started depositing the rent in the Court of the concerned Rent Controller and thus under the circumstances it cannot be said that the respondent is a wilful defaulter. Finding no merit in the petition, the same is dismissed.