1986 PLP 1519 (MLD)

Abdul Aziz Khan for Respondent. Dates of hearing: 15th and 16th January 1986. This review petition has been filed by the appellant for reviewing the order, dated 1‑10‑1985 passed by me in F.R.A. No.840 of 1984 by which the appeal was dismissed as time‑barred. The facts leading to the filing of this review petition are that the learned Senior Civil Judge and Rent Controller passed an order, dated 6‑5‑1984 in Eviction Application filed by the appellant. The appellant applied for certified copy on 10‑5‑1984. The cost was estimated on 22‑5‑1984 and the copy was made ready on 5‑7‑1984. The appellant supplied stamps on 8‑7‑1984 and the copy was delivered on 10‑7‑1984. The appellant presented an appeal in this Court on 6‑8‑1984. The appeal came up for hearing on 16‑9‑1985 which was dismissed by me as The appellant appeared himself in support of the application and has contended that the office did not issue any notice for submission of the stamps and, as such the same could not be submitted within time. He has placed reliance on the case of Mst. Aishabai and 3 others v. Mian Akber Hussain reported in P L D 1981 Kar. 52 wherein a Division Bench of this Court held as follows:‑ "On a consideration of the above case it would seem that the guiding principle for determining 'time requisite' for obtaining the copy is that if the delay in obtaining the copy was cause by circumstances over which the litigant had no control the same has to be included in the time required for obtaining the copy." In my view, therefore, the delay has been satisfactorily explained an I would accordingly condone the delay. The appellant has contended that the learned Rent Controller has misread the evidence on record. On the other hand Mr. Abdul Aziz Khan, learned counsel for the respondent, has submitted that the order of the learned Rent Controller is in accord with the evidence on record. The appellant in his eviction application stated that the respondent is a habitual defaulter in payment of monthly rent and had not paid rent since 1‑12‑1977 in spite of repeated demands and requests. The respondent filed written statement and stated therein that he was depositing the rent in Court vide Miscellaneous Rent Application No.2940 of 1978 at the rate of Rs.125 per month. The appellant in support of the Eviction. Application filed his own affidavit‑in‑evidence and stated therein that the respondent had paid a sum of Rs.3,500 out of the total rent and taxes dues of Rs.6,350 in cash on 30‑8‑1977 in the Martial Law Court. It may be observed that the appellant in his cross -examination admitted that the respondent is a defaulter in payment of rent since‑ 1‑6‑1978. It may be further observed that, in his cross- examination, the appellant has admitted that "it is incorrect that in my affidavit I have shown the opponent as defaulter since 1977". The appellant also admitted in cross‑examination that he had mentioned the rate of rent as Rs.172. It included rent, taxes, etc. As per agreement, the taxes are payable by the tenant. It is the case of the appellant that the agreed rate of rent is Rs.172 per month including taxes. He has placed reliance on the receipt for the month of November. I have perused the photostat copy of the receipt, dated 12‑11‑1977. According to this receipt the rate of rent is Rs.125 and the amount of taxes is Rs.47.50. The appellant also placed reliance on the agreement, dated 28‑10‑1977. The original agreement was not placed on file but a photostat copy thereof is at page 125 of the record of the Rent Case. According to this document the rate of rent is Rs.125 per month and Rs.47.50 are on account of taxes. The' appellant sought time to produce copy of the agreement executed between himself and the respondent but he did not produce the same. The appellant has vehemently argued that the rate of rent is Rs.172.50 instead of Rs.125. Mr. Abdul Aziz Khan, the learned counsel for the respondent has submitted that these two documents are forged documents. It seem that this point was not raised before the learned Controller. The learned Controller should have decided this issue by a reference to the evidence on record including counterfoil of receipt and the agreement. In the circumstances, it was for the appellant to establish the fact that the rate of rent and, taxes is actually Rs.172 and not Rs.125 as submitted by the respondent. It seems that the learned Rent Controller has misconstrued the legal position. In the interest of justice I remand the case to the learned ‑Rent Controller to determine this issue on the basis of the evidence on record and further allowing the parties an opportunity to adduce additional evidence if so desired. The learned Rent Controller should give priority to this rent case and decide the same within a period of four months from the date of the receipt of the R and P from this Court. In the circumstances of the case the appeal is allowed and remanded to the learned Rent Controller for disposal in accordance with law. In the circumstances of the case the parties will bear their own costs. A.A. Appeal allowed.