1980 PLP 601 (SCMR)

This means that the Rent Controller dismissed the respondent's eviction application on an erroneous view of the law, and, we are, therefore, not impressed by Mr. Iqbal Qazi's submission that the High Court was not justified in a second appeal in interfering with the concurrent findings of the Courts below. Learned counsel then submitted that Nusrat, J., was not justified in interfering with the appreciation of evidence by the first appellate Court, because the learned Additional District Judge had dismissed the respondent's appeal after a careful examination of the evidence. But, Nusrat, J., had reversed the concurrent findings of the Courts below, because he was of the view that this concurrent finding was based on an erroneous view of the law and on a perverse appreciation of the evidence. Therefore, we would explain here that although the respondent had failed to give any assistance to the Rent Controller, her learned counsel had drawn the attention of the first appellate Court to the law declared by the Sind Baluchistan High Court in Alimullah's case and by this Court in Muhammad Alam v. Noor Muhammad (2). The Additional District Judge distinguished Alimullah's case with the observation that it would "suffice to observe that in the first authority the plea of alleged practice was neither pleaded nor proved and this argument was advanced for the first time (at) the appellate stage which was repelled." Then, as to. The declaration of law by this Court in Muhammad Alam's case, the Additional District Judge observed "in the second case during 3 1/2 years period of tenancy, only a single instance of late payment of rent was brought in evidence, to prove the practice." Now, strangely enough the Additional District Judge purported to follow Muhammad Alam's case, although as pointed out by him, the default by the tenant in the payment of rent had occurred only once during a period of 3J years, whilst in the instant case, there was never a time when the petitioner was not in default in the payment of rent. Similarly, his attempt to distinguish Alimullah's case, which was binding on him, was based on a misreading of that judgment, because it was expressly pointed out in paragraph 4 of the judgment in Alimullah's case that "the respondent's plea in his written statement was that the appellant wanted to collect rent in large amounts." As the petitioner before us was the respondent in the first appellate Court, the facts in the instant case were on all fours with those in Alimullah's case, therefore, the view of the Additional District Judge was based on a misreading of the law. Similarly, as Mr. 1qbal Qazi repeatedly submitted that we could not interfere in a concurrent finding of fact, we have to observe that the concurrent finding on the question of the petitioner's default was, in the first place, a mixed question of law and fact, and secondly, the finding of the First Appellate Court was based on total misreading of evidence. In this connection, we may point out that the Additional District Judge referred to the rent receipts and observed that they established "the practice between the parties to receive the rent after long intervals of three to eight months." We have to state with regret that this observation is not even factually correct, because, as we pointed out, on two of the', nine occasions, when the petitioner had paid rent, he had paid rent for one month only. Secondly, the receipts merely proved that the petitioner used to pay rent at irregular intervals, but because he paid rent at irregular intervals, the Additional District Judge held that rent was paid at irregular intervals at the request of the respondent's husband. The inference thus drawn by the Additional District Judge is not correct, because it was for the petitioner to prove that he had paid rent at irregular intervals at the request of the respondent's husband. And, the mere fact that he had been paying rent at irregular intervals was not by itself sufficient to prove his plea that the respondent's husband did not wish to receive rent from him at the end of every month. Mr. Iqbal Qazi then submitted that the finding of the Additional District Judge was supported by the correspondence exchanged between the parties, and in this connection, learned counsel placed great reliance on a letter written by the respondent's husband on 18‑1‑1972 to the petitioner. This letter reads: ‑ "Please pay me the arrears of rent already due. I have been waiting your promises to fulfil for the last two months. I hope you will not disappoint me now. Thanks. Yours sincerely, 18‑1‑1972." (Sd.) Illegible. This letter reminds the petitioner of his promises to pay "for the last two months," and, if there had been any truth in the petitioner's plea that he had withheld the payment of rent at the request of the respondent's husband in order to pay it in large lump sums, he would immediately have replied accordingly to the respondent's husband; but even Mr. Iqbal Qaz did not contend that the petitioner had repudiated the stand of the respondent's husband about the petitioner's default in the payment of rent. Learned Counsel then referred us to the petitioner's letter dated 19‑5‑1972 to the respondent's husband. This letter reads: ‑ "Dear Mirza Sahib, I quite understand your patience. On Monday evening I will definitely send you the amount. I will be obliged, as I am always, if you would wait till a bit final date. Thanks, Yours 19‑5‑1972." (Sd.) Illegible Learned counsel thought that this letter supported the petitioner's plea, and that was also the view of the fist appellate Court. But the petitioner's plea was that he paid rent at long intervals at the request of the respon dent's husband. Therefore, as it is clear that the letter is in answer to a request for payment by the respondent's husband, if there had been any truth in the plea advanced by him in his written statement, the petitioner would have informed the respondent's husband that he had not paid the rent earlier, because of his request. Instead he wrote an apologetic letter asking for time. We are not able to understand how any Court could have taken the view that this letter corroborated the petitioner's plea. We were also referred to two other undated letters. Both these letters are written in a supplicating tone and begged the respondent's husband for time to make the payment. Therefore, far from supporting the petitioner's plea, they falsify it. In these circumstances, the view of Nusrat, J., that the, First Appellate Court had misread the evidence is correct, and, in our opinion, no other view is possible. Finally, Mr. Iqbal Qazi relied on an observation of Muhammad Yaquob Ali, J. (as he then was) in Muhammad Alam's case, which reads: ‑ "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." As this observation was followed in Muhammad Shafi v. Zahir Hussain and another P L D 1,978 Lah. 862, 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 cabe that a practice by a tenant to pay rent at irregular intervals made him liable to eviction, 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 aceept 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 all the end of every month. However, as was explained in Alimullah's case, g 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 a irregular intervals, therefore, the observation of Muhammad Yaqoob AF, 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. The petition is without merit, but as the petitioner is running his dispensary in the demised premises, we give him four months' time to hand over the vacant possession of the demised premises to the respondent provided he continues to deposit the monthly rent in accordance with the law. Petition dismissed.