MOHAMMAD ALAM vs NOOR MOHAMMAD

ORDER

1. MUHAMMAD YAQUB ALI, J.-This appeal by special leave arises cut of an application filed by Noor Muhammad respondent, under section 13 of the Real Restriction Ordinance, 1959, for eviction of Mohammad Alam, appellant, from a hotel premises, in Shahdadpur, Inter alia on the ground of default in payment of rent for the months of August and September 1965.

2. The appellant admitted failure to pay rent by the 15th day of every month as required by section 13, but pleaded exemption from eviction on the ground that he used to pay rent after two or three months and thereby a practice had grown up for payment of rent periodically. In support of the plea, he filed receipt Exh. 48, evidencing payment of rent for November-December, 1964, and January 1965, together on 11-3-1965.

3. The Controller accepted the plea of defence and held that the appellant could not be said to have made default as the respondent landlord "already used to accept rent for threw months."

4. On appeal by the respondent the District Judge agreed with the findings of the Controller and maintained the dismissal of the application for eviction.

5. On further appeal, a learned Judge of the High Court reversed the concurrent findings of the Rent Controller and the District Judge in the view that one solitary instance of payment of rent for three months together in 3-- years of tenancy did not constitute a "practice" which will vary the statutory time fixed for payment of rent, namely, within fifteen days after the expiry of the time fixed in the agreement of tenancy or in the absence of such agreement within sixty days for the period for which rent is payable under the agreement of tenancy. Rent was payable in this case before the 5th day of every month as stipulated in the lease deed, Exh. 27.

6. The appeal was, accordingly, allowed by order dated 21 August 1972, and the appellant was given three months' tame to vacate the premises.

7. Leave to appeal was granted to consider whether High Court could. In a second appeal, interfere with the concurrent findings of the District Judge and 'the Rent Controller that there was no default in payment of rent by the appellant.

8. We have heard the learned counsel for the appellant and read the evidence placed on record by the parties. The question whether there was default within the purview of section 13 of the Rent Restriction Ordinance, 1959, was a mixed question of law and fact. The High Court could, therefore, displace the concurrent findings of the Courts below on this point. On merits we find that the appellant led no other evidence except appearing as his own witness. He was not definite about the "practice" for payment of rent periodically for he says: "I pay rent to the appellant at his shop monthly--sometimes after two months or three months and this was not objected to at any time".

9. In support of the statement he produced only one receipt, Exh.

48. It shows that the respondent gave a receipt to the appellant whenever rent was paid by the appellant. If rent was paid invariably after two or three months in the course of 31 years as alleged by the appellant he would have produced many more receipts similar to Exh.

48. As none was produced, it can be safely inferred that except the solitary instance, mentioned above, rent was paid by the appellant every month or else the respondent would have sued for his eviction earlier.

10. Another aspect of the case is that the appellant was required to pay rent by the 5th day of every month as stipulated in the rent deed Exh.

27. If he failed to pay rent within fifteen days after expiry of the date fixed in the agreement of tenancy he became liable to eviction. No practice to the contrary could whittle down the requirement of law. The Rent Controller could, however, condone the delay if he was satisfied that by agreeing to accept rent periodically the landlord had made the tenant believe that rent was not to be paid every month. In that case it could be said there was no deliberate default and the Court might exercise discretion against directing eviction of the tenant although, in law, default is proved on his part.

11. In the present case the appellant failed to prove the alleged "practice". Indeed he said he paid rent "monthly-sometime after two months or three months". Such a vague statement did not make oat a "practice" which would deviate from the date fixed in the agreement of tenancy. The solitary instance of payment of rent for three months on 11-3-1965 indicated condonation of default by the landlord for this period, but did not vouch for future defaults. The default being admitted, the appellant was liable to be evicted.

12. In the result we agree with the view formed by the learned Judge of the High Court and dismiss the appeal. In the circum--stances of the case there will be no order as to costs.

13. The appellant is, in view of the floods which we are told have ravaged the Shabdadpur area, given four months' time to vacate the premises and deliver possession to the respondent. He shall continue to deposit rent at the stipulated rate during this period in Court of the Rent Controller.

14. Failing that he will be evicted forthwith.