Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Constitutional Petition No. S – 678 of 2004
Petitioner : Mst. Zulekha Khanum,
through Mr. Imran Ahmed, Advocate.
Respondent No.1 : Pervaiz Akhter called absent.
Respondent No.2 : IVth Additional District Judge Karachi East.
Respondent No.3 : Vth Rent Controller Karachi East.
Date of hearing : 17.01.2019.
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J U D G M E N T
NADEEM AKHTAR, J. – The petitioner has impugned the judgment delivered on 27.03.2007 by learned IVth Additional District Judge Karachi East in First Rent Appeal No.334/2001, whereby the said appeal filed by the tenant / respondent No.1 was allowed and the order of his eviction passed on 05.11.1992 by learned VIth Rent Controller Karachi East in the petitioner’s Rent Case No.888/1986 on the ground of default, was set aside.
2. The main question involved in the present case is whether the order of eviction of tenant passed by the learned Rent Controller on the ground of default could be reversed by the learned appellate Court on the sole ground that default was not established as there was a practice between the parties that the landlady used to send her rent collector to collect the rent from the tenant after intervals of several months and she used to accept accumulated rent for such period from the tenant.
3. Relevant facts of the case are that the petitioner is the owner of first and second floors of the building constructed on Plot No.S.B.-1/2, Al-Hilal Cooperative Housing Society, University Road, Karachi (‘demised premises’). The demised premises were rented out by the petitioner to respondent No.1 vide rent agreement dated 02.06.1980 (‘the agreement’) at a monthly rent of Rs.4,500.00 payable in advance on or before the fifth day of each calendar month. The rent was enhanced to Rs.5,000.00 per month by mutual consent with effect from 01.07.1993.The above rent case was filed by the petitioner seeking eviction of respondent No.1 on the ground of default in payment of rent for the period May 1986 to October 1986. After hearing the parties, the application of the petitioner was allowed by the learned Rent Controller by directing respondent No.1 to handover vacant and peaceful possession of the demised premises to the petitioner within two months. The above eviction order was challenged by respondent No.1 by filing an appeal, which was allowed by the learned appellate Court through the impugned judgment.
4. Mr. Imran Ahmed, learned counsel for the petitioner, strongly criticized the impugned judgment by contending that the same is contrary not only to the material that was available before the appellate Court, but is also against the well-established principles of law laid down by the Hon’ble Supreme Court regarding practice of payment of rent by the tenant and default by him in its payment. He submitted that it was an open and shut case of default as respondent No.1 had admitted in paragraph 6 of his written statement before the learned Rent Controller that rent for the disputed period of six (06) months from May to October 1986 was paid by him to the petitioner in October 1986. He further submitted that the finding of the learned appellate Court that default by respondent No.1 was not established as the petitioner used to receive accumulated rent for several months from him, is contrary to law. He contended that as per the agreement, respondent No.1 was obligated to pay the agreed rent to the petitioner in advance on or before the fifth day of each calendar month ; and after expiration of the agreement, as respondent No.1 became the statutory tenant of the petitioner, the rights and obligations of the parties were to be governed by the Sindh Rented Premises Ordinance, 1979, (‘the Ordinance’). He submitted that under the provisions of the Ordinance, non-payment of rent would constitute default after sixty (60) days from the date when the rent became due and payable. It was urged by him that if the petitioner had accepted accumulated rent in the past as alleged by respondent No.1, even then such practice could not override the law. In support of his submissions, learned counsel relied upon (1) Messrs Tar Muhammad Janoo & Co. V/S Taherali and others, 1981 SCMR 93, (2) Allah Din V/S Habib, PLD 1982 SC 465 and (3) Haji Rozi Gul V/S Mst. Mumtaz Begum and others, 1999 SCMR 1915. In view of his above submissions, he prayed that the impugned judgment, being contrary to law, be set aside.
5. Record shows that respondent No.1 was being represented in this case by a counsel and on 27.02.2018 respondent No.1 himself had appeared before this Court in person. Thereafter, he and his counsel did not appear on any date of hearing to assist the Court although several notices were issued to them. In view of their continuous absence, it was observed by this Court on 09.08.2018 and again on 01.11.2018 that if they do not appear to contest this petition, the same shall be heard and decided in their absence. Despite being aware of these proceedings and despite the above observations by the Court, respondent No.1 and his counsel have chosen to remain absent.
6. Before dealing with the merits of the case, it may be noted that the agreement in respect of the demised premises was executed by the petitioner as landlady and one Syed Muhammad Sulaiman, Managing Director of Gallant Construction Company Karachi, as tenant. The above rent case was filed by the petitioner against the above named Managing Director, wherein evidence on behalf of the opponent / tenant was led by the present respondent No.1 Pervaiz Akhtar as Director of the above company, by deposing that he was managing all the affairs of the said company. First Rent Appeal No.563/1992 against the order of eviction arising out of the above rent case was also filed by the said Pervaiz Ahmed as Managing Director of the above company, and therefore, he has been cited as a respondent in the present petition. It may also be noted that no objection whatsoever was raised at any stage regarding non-joinder of the above company and/or joinder of the previous Managing Director of the company and/or substitution of the present Managing Director in place of the previous one.
7. I have heard learned counsel for the petitioner and have carefully examined the material available on record as well as the law laid down by the Hon’ble Supreme Court on the question involved in the instant petition. In her eviction application, it was pleaded by the petitioner that as per the agreement rent was payable by respondent No.1 in advance on or before the fifth day of each calendar month ; he was also liable to pay KMC dues and utility charges ; and he was bound by the terms and conditions of the agreement even after its expiration. It was alleged by her that respondent No.1 had committed default in payment of rent for the months of May to October 1986 (six months) as well as KMC dues and water charges. In his written statement, respondent No.1 defended his position by claiming that he used to pay accumulated rent for several months to the petitioner through her rent collector who, despite his repeated requests, did not come to collect the rent for the disputed period, and due to such delay on the part of the rent collector, rent was eventually paid by him in October 1986. For the purposes of the controversy involved in the instant case, paragraph 6 of his written statement is relevant and important, which is reproduced here for the sake of convenience and ready reference :
“6) That the contention of the applicant for non-payment of rent is vehemently denied. The system of collection of rent was that the Rent Collector of the applicant used to visit the office of the opponent firm in the first week of each month to collect the rent and it was duly tendered to him. As per custom, the Rent Collector of the applicant failed to collect rent in the month of May, 1986 to July, 1986. The opponent immediately informed the applicant/landlady about the absence of her Rent Collector vide its registered letter No.CCCP86/6739 dated 06-7-1986. Apart from this letter, the Accountant of the said opponent firm personally approached the representative of the lady to depute her Rent Collector to collect the rent. The rent for the 6 months was then paid to her rent collector in October, 1986. Consequently the delay in the payment of rent for these 6 months does not lie on the opponent.”
8. In his order dated 05.11.1992, whereby eviction application filed by the petitioner was allowed, it was held by the learned Rent Controller that a tenant cannot absolve himself of the responsibility of paying the rent every month by taking the plea that he was asked to pay the rent in lump sum after intervals ; mere fact that the landlord used to accept accumulated rent does not mean that he does not desire or expect the rent to be paid to him on time as required by law ; letters issued by respondent No.1 asking the petitioner to send her rent collector show that he was unaware of his duty to tender rent to the petitioner ; respondent No.1 was a willful defaulter as he did not tender rent for the reason that the petitioner’s rent collector had not come to collect the rent, nor did he make any attempt to tender the rent through money order or by depositing in Court ; and, default by respondent No.1 in respect of KMC dues and utility charges also stood proved as the petitioner’s allegation in this behalf was not rebutted by him at all.
9. The learned appellate Court, however, disagreed with the findings of the learned Rent Controller and set aside his order whereby eviction of respondent No.1 was ordered on the ground of default. The sole ground on which the order of eviction passed by learned Rent Controller has been set aside is that there was a practice between the parties that the petitioner used to receive accumulated rent from respondent No.1 in lump sum without any objection. It was held by the learned appellate Court that in view of such practice between the parties, the stipulation in the agreement regarding payment of rent in advance on or before the fifth day of each calendar month had become redundant ; if respondent No.1 had delayed the payment of rent, the petitioner would have served a legal notice to him ; and, in the absence of any such notice, the delay in payment of rent cannot be attributed to respondent No.1.
10. After carefully examining the impugned judgment, I am of the considered view that the above findings of the learned appellate Court are contrary to the law laid down by the Hon’ble Supreme Court on the issue at hand, which is briefly discussed below :
A. In Mrs. Alima Ahmad V/S Amir Ali, PLD 1984 SC 32, the landlady filed an eviction application against her tenant seeking his eviction on the ground of default in payment of monthly rent. The tenant resisted the application by alleging that the landlady intentionally delayed the receipt of payment of rent from time to time and she used to receive accumulated rent from him. The application was dismissed by the Rent Controller by holding that the landlady had failed to prove default on the part of the tenant ; the conduct of the landlady showed that she had been accepting accumulated rent from the tenant sometimes in cash and sometimes through cheque, and therefore, there was no willful or deliberate default on his part nor could he be called a persistent defaulter. Appeal filed by the landlady was allowed by the learned first appellate Court by directing the tenant to vacate the demised premises within two months. However, the second appeal filed by the tenant before the High Court was allowed by holding that the Rent Controller did not exercise discretion in favour of the tenant ; it is the statutory duty of a tenant to pay rent to the landlord in terms of the provisions of Section 13(2)(i) of the Ordinance of 1959, but if a landlord by his representation / conduct / omission leads to a tenant to believe that the time mentioned in the above provision of the Ordinance of 1959 is not to be adhered to, and thereafter the landlord wishes to enforce the said provision strictly, in that event the landlord should first put the tenant to notice by serving a notice or otherwise to the effect that henceforth he should make payment of rent regularly month to month in terms of the above provision, or the ejectment proceedings in such a case should be preceded with the service of a notice calling upon the tenant to clear the arrears of rent within reasonable time specified therein ; and, any other view will result in miscarriage of justice. The judgment of the learned High Court allowing the second appeal of the tenant in the above terms was assailed by the landlady before the Hon’ble Supreme Court.
In appeal, the Larger Bench of five Hon’ble Judges of the Supreme Court was pleased to hold inter alia that the alleged practice of the attorney of the landlady of collecting accumulated rents was of no avail in explaining the delays and defaults as held in Syed Waris Ali Tirmizi V/S Liaquat Begum, 1980 SCMR 601 ; the Rent Controller was clearly in error in holding that there was no persistent or willful default and in ignoring the law laid down in Syed Waris Ali Tirmizi (supra) ; first appellate Court rightly reversed the finding on default and discovering no mitigating circumstances, directed ejectment of the tenant ; learned High Court was under a misapprehension that it was a case of exercise of discretion by the Rent Controller, which was proper one, and the first appellate Court interfered in the exercise of that discretion and that such interference was unjustified, and hence merited interference in second appeal ; the law protects the tenants against eviction and enhancement of rent, thereby curtailing the plenary power of the landlord to deal with his property and tenant thereof ; if promptness in payment of rent with option to the tenant to deposit it with the Rent Controller is a condition precedent for enjoying such protection, it cannot be relaxed or diluted on the grounds of economic well-being, fairness or in the name of justice ; the tenant was clearly in default in paying or tendering the rent, there was no plausible explanation for such default, and therefore he was liable to ejectment ; and, the learned High Court should not have superimposed a new procedure extraneous to the statute whose provisions were to be interpreted and applied. The appeal filed by the landlady was allowed with costs by the Hon’ble Larger Bench of the Supreme Court by directing the tenant to handover vacant possession of the premises to her.
B. In M/s Pragma Leather Industries V/S Mrs. Sadia Sajjad, PLD 1996 SC 724, the authoritative pronouncement of the Hon’ble Larger Bench in Mrs. Alima Ahmad (supra) was followed by the Hon’ble Supreme Court by observing that the same directly deals with the question of practice of making payment of accumulated rent of several months, and further observing that it was held therein that such practice cannot negate the express provision of law.
C. In Mst. Hajiani Aisha and others V/S Abdul Waheed, PLD 1989 SC 489, the Hon’ble Supreme Court was pleased to hold that it has been consistently held by the Hon’ble Supreme 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 law ; and, defense 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 him.
D. In Messrs Tar Muhammad Janoo V/S Taherali, 1981 SCMR 93, cited and relied upon by learned counsel for the petitioner it was held by the Hon’ble Supreme Court that it is the duty of the tenant to pay or at least tender the render to landlord ; he cannot be allowed to plead that the landlord did not make any effort to collect the rent ; the mere fact that a tenant has made it a habit not to pay the rent regularly every month and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals, cannot in any way be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collect it, nor does it absolve the tenant from paying the rent every month ; and, the tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent within time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent.
E. In Messrs Abdul Razzaque Abdul Sattar V/S Abdul Shakoor and another, 1999 SCMR 519, the earlier decisions in the cases of Messrs Tar Muhammad Janoo (supra), Pragma Leather Industries (supra) and Shezan Ltd V/S Abdul Ghaffar, 1992 SCMR 2400, were reaffirmed by the Hon’ble Supreme Court that practice of accepting accumulated rent or sending monthly rent bills by a landlord, in no way, absolves the tenant from discharging his statutory obligation of paying the rent under the provisions of rent laws.
11. It may be observed that even after expiration of the period of tenancy stipulated in the agreement, the terms and conditions between the parties regarding the mode and time of payment of rent were to continue to remain in force, and if the parties had mutually agreed for advance payment of rent for each month, then the parties would be bound by such condition even after expiration of the tenancy agreement ; and under Section 15 of the Ordinance, if the tenancy is based on a written agreement, the tenant would be liable to pay rent within fifteen days after expiration of period for payment of rent fixed in the agreement, and after expiration of the agreement, within sixty days from the date when the rent became due and payable, failing the tenant shall have to face consequences of ejectment. The above views expressed by me are fortified by Messrs Uzma Construction Co. V/S Navid H. Malik, 2015 SCMR 642, and Saifuddin and another V/S Senior Civil Judge / Rent Controller VIII, Karachi (South) and seven others, 2007 SCMR 128.
12. In view of the law laid down by the Hon’ble Supreme Court, particularly the authoritative pronouncement by the Hon’ble Larger Bench in Mrs. Alima Ahmad (supra), it can be safely concluded that if the landlord accepts accumulated rent from the tenant periodically or with intervals, it does not mean that he does not desire or expect rent to be paid within time by the tenant as required by law, or that he has waived his right to claim rent within time ; such practice by the landlord, in no way, overrides or negates the express provisions of law, nor can it absolve the tenant from discharging his statutory obligation of paying the rent to the landlord within time under the provisions of rent laws ; even the Court has no power to superimpose any new procedure or method for payment of rent extraneous to the statute ; it is the duty of the tenant to pay rent to the landlord within time as required by law through any of the modes prescribed by law, and it is not the duty of the landlord to collect rent from the tenant or to remind or chase him for payment of rent ; and, payment of accumulated rent even once by a tenant would make him liable to eviction. In the present case, it is an admitted position that accumulated rent for six months (May to October 1986) was paid by respondent No.1 to the petitioner in October 1986. This shows that there was a clear default on his part for the months of May, June and July 1986, and, therefore, the order passed by the learned Rent Controller for his eviction was in accord with the law laid down by the Hon’ble Supreme Court.
13. In view of the legal position discussed above, the impugned judgment delivered by the learned appellate Court, being not sustainable in law, cannot be allowed to remain in the field. Consequently, this petition is allowed with no order as to costs, the impugned judgment of the learned appellate Court is hereby set aside, and the order passed by the learned Rent Controller for eviction of respondent No.1, is upheld / restored.
14. Foregoing are the reasons of the short order announced by me on 17.01.2019, whereby this petition was allowed with no order as to costs by directing respondent No.1 to hand over vacant and peaceful possession of the demised premises to the petitioner within thirty (30) days.
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J U D G E