TAHER ALI and 2 others vs Messrs SH. MIRAN BUX, KARAM BUX and another

ORDER

1. ' ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dismissing petitioners' appeal and thereby upholding the order of the Rent Controller rejecting petitioners' application for respondents' eviction from the demised premises.

2. ' Petitioners applied for respondents' eviction on 24-4-1974 on the ground of non-payment of rent for the period from 1-1-1974 till filing of the rent case, at the rate of Rs,125 per month. In defence, respondents pleaded that it was the practice of the applicants to collect the rent in lump sum for a period of 12 months and since rent collector did not come to collect the rent till May 1974, they suspected that applicants were deliberately avoiding to collect the rent with a view to create ground of ejectment and, therefore, they deposited rent in Court through Miscellaneous Rent Case No, 1190 of 1974 filed on 15-5-1974.

3. ' Learned Rent Controller after recording evidence of the parties upheld the plea of the respondents and dismissed the application for the following reasons: "From the oral as well as documentary evidence the rent receipts Exs. A/B to A/D it is indicated that the applicants used to collect the rent in lump sum for a year sometime in February, March, April, May and June collectively without any protest or objection. Besides this, the applicants did not issue any notice to the opponent to pay the rent monthly and/or refused to accept the lump sum rent paid by the opponent. The applicants have filed this case on 24-4-1974 when the opponent were already in arrears of 3 months rent according to law. The opponent deposited the rent in M.R.C. On 15-5-1974 for a year rent after obtaining the permission from the Rent Controller concerned. The receipts Exs. A/B to A/D show the practice of the applicants to accept the rent for a year in the middle of the year. Admittedly the applicants did not issue any letter/notice before filing of this case demanding the rent alleging non-payment of rent to the rent collector. This shows that the applicants have filed this case in order to create the ground of default. Since the opponents have deposited the rent on 15-5-1974 in Misc. Rent Case and as the practice of the applicants was to collect the rent in a lump sum, I hold that the opponents have not committed a wilful as alleged by the applicants."

4. ' On re-appraisal of the case learned Judge in the High Court also upheld this plea for the following reasons:- "The rate of rent and relationship is not disputed between the parties. It is also an admitted position that rent of January to April 1974 was neither paid nor any attempt was made to tender but on 17- 5-1984 respondent deposited the rent from January 1974 to December, 1974 and no further default has been committed. It is argued that rent was not collected purposely to make out a case for default. On this he has referred to the conditions of tenancy of agreement. The condition No, 5 of the tenancy produced as Ex. A/A is as under:-

5. No rent shall be paid without the presentation of a bill and the signature of landlord or his agent shall always be obtained on payment. The landlord will not be responsible for any payment made for which signature is not obtained.'

5. ' In the present case nothing has come on the record that appellant presented a bill and respondent has refused to make payment. Receipts, Exs. A/B, A/C, A/E, A/F and A/D, have been produced through rent collector of appellant which show that rent was being received yearly from which it appears that on presentation of a bill as per terms and conditions of the tenancy the payment was made immediately and receipts were acknowledged. Rent for January to December 1969 was paid on 5th June, 1969, January to December 1970 on 23-2-1970, January 1971 to December 1971 on 1-4-1971, January 1972 to December 1972 on 14-2-1972 and January 1973 to December 1973 on 25-4-1983. These receipts have not been denied. It is clear that all along the rent was being collected on yearly basis. Not only this but respondent immediately under the circumstances feeling an apprehension went and deposited the rent in advance for the whole year 1974 in Misc. Rent Case on 17-5-1974."

6. After having heard the learned counsel for the petitioners in the light of the record before us we find no ground either in law or on merits is made out for interference with the impugned judgment of the High Court, for, the fording of fact recorded by the two Courts below that it was the practice of the petitioners to collect the amount in lump sum has been based on the admitted documents, namely, rent receipts Exs. A/B, A/C, A/E, A/F and A/D, which clearly prove payment of rent on yearly basis. There is, therefore, no merit in this petition and it is accordingly dismissed.