Mst. HAJIANI AISHA and others vs ABDUL WA HEED

1. ' NAIMUDDIN, J.--The respondent/landlord filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 against the appellants/tenants for their eviction from shop bearing No,B-689/2 Choori Bazir, Sukkur, in the Court of Controller, on the groonds of subletting; non-payment of rent from January , 1974 to 31st May, 1974 and personal requirement of the shop, which was dismissed by him by order dated 8-4-1977. The respondent preferred an appeal against the order with the first Additional District Judge, Sukkur who dismissed the same vide judgment dated 2-10-1979. Thereafter, the respondent took the matter to the High Court and succeeded there and the High Court ordered the 'eviction of the appellants only on the ground of default in payment of rent for the period from the 1st January, 1974 to the 30th April, 1974. The High Court did not accept the plea of the appellants that the respondent was receiving the rent in lump sum and as such a practice had developed between the parties. In this connection it observed as follows: "It is only Exhs. 25-B-10, '25-B-9 and 25-B-3 where the rent was not paid in advance, therefore, the finding that there was practice of payment of arrears of rent in lump sum was not justified as the rent had been paid in advance on number of occasions . "

2. Leave was granted by this Court vide order dated 1-9-1979 to consider the question; "Whether, when there is enough material on the record to create a reasonable but uneasy impression and doubt that a landlord when accepting rent for several months in lump sum (on several occasions) was in reality trying to trap the tenant so as to seek his ejectment subsequently on the ground of default in payment of monthly rent on time, the application for eviction on ground of default should not be dismissed in exercise of discretion allowed by law."

2. ' We have heard Mr. Abdul Khair Ansari learned counsel for the appellant in support of the plea that the respondent was receiving the rent in lump sum as a practice, and, therefore, the Controller and the first appellate Court exercised their discretion properly. We note that the High Court, in its judgment, has mentioned only three receipts Exhs. 25-B-10, 25-B-9 and 25-B-3 where the rent was not paid in advance otherwise the appellants were always paying rent in advance. The learned advocate for the appellants was able to point out from the record only two receipts. The first is dated 1-12-1973 for Rs,3,177.74 paid through cheque being the entire balance for the period from 1- 6-1972 to 31-12-1973, and the second receipt is dated 8-4-1966 which is from January, 1966 to November, 1966 which acknowledges the adjustment of Rs,1,400 being rent @ Rs,350 from December, 1966 to the 31st March, 1967 and which further acknowledged that a sum of Rs,600 was then lying to their credit with the respondent. The learned counsel, however, admitted that except two all other receipts, placed on record, are for payment of rent in advance. Even one of the two receipts dated 8-4-1974 is partly for payment of rent in advance, the High Court was, therefore, right in, holding as under: "Mr. Abdul Latif Memon, the learned counsel for the appellant wanted to argue that the three agreements of rent Exhs.25-C-1 to 25-C-3, which his client has produced, showed that the rent was to be paid of eleven months in advance and he has also shown me the receipts No,25-A, where rent of December was paid in advance in November, 1965, Exh.25-B where rent of January, 1966 to November, 1966 was paid in advance in November, 1965, Exh.25-B-2 where rent of April, 1967 to February, 1968 was paid on 4-5-1967 showing advance rent paid of ten months, Exh.25-B-4 where rent of July, 1968 to May, 1969 was paid in advance and Exhs.25-B-5, 25-B-6, 25-B-7 and 25-B-8 where the rent from 1st June, 1969 to 30th April, 1970 and of 1st May, 1970 to 31st March, 1971 and from 1st April, 1971 to 30th June, 1971 and 1st July, 1971 and 31st May, 1972 was shown to have been respectively paid in advance by the respondent to the appellant."

3. ' Learned counsel, however, relied on Abdul Aziz v. Abdul Ghani 1988 SCM R 1857. In this case the landlord had adopted a practice of receiving arrears of rent in, lump sum which was in vogue from the very beginning of the tenancy. Relief was denied to the landlord because of his conduct in exercise of the discretion but in the present case the appellants have failed to prove any such practice. On the contrary, practice was to pay the rent in advance except on One or two occasions.

4. Therefore, no such practice would be proved. Moreover, it has been consistently held by this 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 the Ordinance, Haji Muhammad Qasim v. Mehran Ali 1983 SCM R 1205; defence 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 the rent, Malka Begum v. Mehr Ali Hashmi 1984 SCM R 755. Production of one solitary receipt showing lump sum payment of the arrears of rent would not lead to the presumption that practice of receiving rent periodically was adopted by the landlord, Muhammad Alam v. Noor Muhammad 1973 SCM R 606. We may also usefully quote a passage from the judgment of this Court in Dr.Syed Waris Ali Tirmazi v. Mst. Liaqat Begum 1980 SCM R 601 which appears at page 606 of the report. It reads as under: "As this observation was followed in Muhammad Shafi v. Zahir Hussain and another, we would clarify for the guidance of the Courts that Muhammad Yaqoob Ali, J (as he then was) gave a warning in Muhammad Alam's case that a practice by a tenant to pay rent at irregular intervals made him liable to eviction, E because such a practice was contrary to the provisions of the West Pakistan Urban Rent Restriction Ordinance, 1959. Then after giving this warning his Lordship went on to make an observation that the Court could condone delay in the payment of rent if the landlord had agreed 'to accept rent periodically. Now, if a landlord agrees 'to accept rent periodically' this can only be the result of a fresh agreement between him and the tenant, and if he enters into such an agreement, he would no doubt be bound by his representation to the tenant not to pay rent at the end of every month. However, as was explained in Alimullah's case the burden of proving such an agreement between the landlord and the tenant is not to be inferred lightly and cannot generally be inferred from the mere fact that the landlord had received rent from his tenant at irregular intervals, therefore, the observation of Muhammad Yaqoob Ali, J. (as he then was), does not help the petitioner's case, because he has failed to prove that the respondent through her husband, had agreed to alter the terms of the tenancy with the petitioner and to receive rent from him at long intervals."

5. ' We, therefore, find no merit in this appeal, and, accordingly, dismiss it with no order as to costs.