1980 PLP 637 (CLC)

Date of hearing: 22nd September, 1979. Learned counsel for the respondent has sent an application for an adjournment of the case on the ground that ht; will be out of Lahore on 22-9-1919. This is no ground for the absence the learned counsel or for his inability to make proper arrangement for representation. I, therefore, decline to adjourn the case.

2. The relevant facts are that by a rent deed (Exh. P. 2) dated 19-4-1969 the respondent obtained Shop No. 1'-1$6/W-4 between Anlilipura and Chiniot bazar known as 6aili Machhli Rani, Lyallpur (baisalatad) at a rent of Rs. 150 per month payable in advance on the 20th of each month, The appellant filed a petition for ejectment of the respondent from the said shop on 22-3-197: on the grounds of default in payment of rent from the 20th of November, 1972, and personal requirement. of the shop for the petitioner's business which he wanted to run through his son Saleem Ishrat.

3. The respondent contested the petition for ejectment and refuted both the grounds. On the ground of default he pleaded that be had paid the rent for the period 20-11-72 to 20-12-72 on an oral promise of the appellant to send its receipt later. According to him the rent for the period of 20-12-1972 to 20-1-1973 had also been similarly paid to him on his promise to give the receipt. Since the receipts for the rent of these two months were not given, the respondent sent the rent to the appellant by money orders twice but the same were returned. Thereafter the unpaid rent was deposited before the Rent Controller. It was stated that the shop was not required for the business of the son but this plea has been taken since the appellant wanted to enhance the rent. The following issues were framed:-- (1) Whether the application is not maintainable? (2) Whether the respondent is a rent defaulter? (3) Whether the disputed property is bona fide required by the petitioner for his personal use and occupation? (4) Relief.

4. Issue No. 2 was decided by the learned Rent Controller in favour of the appellant while Issue No. 3 was decided against him. Issue No. 1 was also decided against the respondent. As a result of finding on Issue No. 2 the learned Rent Controller accepted the application and directed the respon dent to vacate the shop in dispute before 25-5-1976.

5. In appeal the learned Additional District Judge set aside the finding on issue No. 2 and dismissed the application for ejectment. Hence this appeal. 6. 1 have gone through the record. The learned counsel for the appellant raised contentions on both the issues No. 2 and

3. The appellant cannot, however, be allowed to urge anything 4gainst the finding on issue No. 3 in the second appeal since it appears from the impugned judgment of the learned Additional District Judge that the finding on this point given by the learned Rent Controller was not challenged by the appellant before the learned Additional District Judge. The only question in this case is whether the finding as regards default in the payment of rent can be sustained. The learned Additional District Judge relied upon the evidence of R. Ws. 3, 4 and 5 in regard to the payment of rent for the two months which was payable on the 20th of November, 1972, and 20th of December, 1.972, and held that the respondent was not at all in default. It is very strange that the earned Additional District Judge while relying upon the oral evidence of payment in a case in which admittedly except for these two months, receipts had always been issued b5 the appellant to the respondent ignored completely the weaknesses in the statement of R. W. 3 and R. W.

4. It is proved by Exh. P. 2 that the rent of ach month, was payable in advance. In his statement the respondent as R. W. 5 stated that the rent was paid on the 20th of each month. From this the appellant's contention that the rent was payable and was always paid on the 20th of each month is established. - Now the case of the respondent was that in the 11th month of 102 the rent was paid to the appellant on promise to send the receipt from home. Again in the second month when the receipt is demanded 'ht, appellant promised to send both months' receipts together.

12. W. Z who was examined on 10-3-1976 stated that the rent for which receipt was given was paid three years back, which means that he was referring to 'the rent of February or March, 1973. He also stated that twice the receipts were not given and on payment of the rent for the second month, the appellant had promised to send the two receipts together. R. W. 4 Ghulam Mohyud Din was not positive about the time. He stated that about 3J years ago the rent was first paid without receipt bit then he fixed the date as 20-I1-72. This waivering is not, therefore, material. However, according to him at the time of second payment without receipt the appellant had promised to give three receipts together on payment of the next month's rent. It is, therefore, clear that the two witnesses, R. W. 3 and R. W. 4 contradicted each other, on the point whether two months receipt had to sent or three receipts had to be given or whether the receipt for rent already paid had to be sent from home or they bad to be given on receipt of rent of the third months. These contradictions have been ignored by the learned Additional District Judge. His finding of fact cannot, therefore, be considered to be a finding of fad which may be binding upon this Court. The finding is liable to be set aside on this ground alone and it is set aside.

7. Even if it is considered that this finding is a finding of fact, it will hardly be of any help to the respondent since obviously the learned Additional District Judge did not take another point into consideration. As stated above it was admitted that the rent was payable on 20th of each month. The advance rent up to 19th to December, 1972, was admittedly payable on the 20th of November, 1972. The rent up to the 19th of January, 1973, was payable on the 20th of December, 1972. The rent up to the 19th of February, 1972, was payable on the 20th . of January, 1973, and similarly the rent up to the 19th of March, 1973, was payable on the 20th of February, 1973. Since there was a written agreement fixing the date and time of payment, the respondent became a defaulter if he` did not pay the rent within 15 days thereof. He, therefore, clearly became a defaulter when be failed to pay the rent on the 20th . of January, 1973, and 20th of February, 1973. In regard to the rent payable orb the 20th of January, 1973; he became a defaulter by the 3rd or 4th of February, 1973. Similarly for the rent payable on the 20th of February, he became defaulter on 6th of March, 1Q

73. The money order for two months was sent by the respon dent on 8th of March, 1973. There is nothing in the money order Exh. R. 3 that the 'rent of these two months had ever been tendered before nor is it the case of the respondent in his statement nor in the statements of his witnesses. This was, therefore, a clear case of default at least in regard to the rent payable on the 20th of January, and 20th of February, 1973. The respondent was rightly ordered to be ejected by the Rent Controller. 8. 1 allow this appeal with costs, set-aside the impugned order of the learned Additional District Judge and restore the order of ejectment passed by the learned Rent Controller. The respondent shall vacate the premises in dispute up to 15-10-1979 failing which he shall be ejected by execution of the order. M. Y. M. Appeal allowed.