1993 PLP 2083 (MLD)

2. Nazir Ahmad, respondent‑petitioner brought an application in the Court of Controller of Rents, Nowshera Cantt. for eviction of the appellant respondent from Shop No.783/784 situate in Ghafoor Khan Mandi on the ground of default in payment of rent from September, 1987 to February, 1988. It was alleged in the petition that the tenant is in occupation of the shop at the rate of Rs.200 p.m. and that he has defaulted in payment of rent for the above period and, as such, is liable to ejectment. In the written statement the tenancy was admitted but the rate of rent and the default was disputed. It was stated therein that the monthly rent of the shop is Rs.50 p.m. and that when the landlord stopped receiving rent from February, 1988 then the rent of that month was sent through money order and also rent for the month of March, 1988 was tendered through money orders, but both were refused. The rent for the said 2 months was then deposited in the Court of Controller of Rents. It was further clarified that the petitioner has never issued rent receipt to the respondent. On the basis of the pleadings of the parties the following issues were framed: ‑‑ (1) Whether the respondent is rent defaulter from September, 1987 up to the date of filing the ejectment application i.e. 6‑3‑1988? (2) What is the monthly rent of the premises? (3) Whether the respondent has offered the due rent to the petitioner in time? (4) Relief. At the trial of the case Nazir Ahmad appeared as P.W.1 who reiterated what was stated in the petition. On the other hand the respondent himself appeared as R.W.1 and stated that he has occupied the shop in question as tenant right from 1957 at the rate of Rs.30 p.m. However, when he insisted for issuance of receipt then the landlord informed him that if the rent was enhanced from Rs.30 to Rs.40 only then the receipt would be issued. But in spite of that no receipt was issued. The rent was sul‑scquently enhanced to Rs.100, but no receipt had been issued. When the receipt of the rent was refused then the same was sent through money orders Exh.R.W.l/1 and R.W.1/2 and thereafter the rent is being deposited in Court in pursuance of the order. Shamsher Khan and Khan Gul were examined in support of the stand taken by the respondent.

4. The learned Controller decided issues No.l and 3 against the respondent and while giving finding on issue No.2 the monthly rent was held to be Rs.100 per month.

5. The learned counsel arguing for the appellant submitted that no receipt was ever issued to his client and when the receipt of rent by the land lord was stopped from February, 1988 then the rent of February, 1988 and March, 1988 was sent through money orders which have been exhibited as R.W.1/1 and R.W.1/2 on record. This submission was controverted by the learned Advocate of the other side and submitted that the respondent has no printed receipts and issues the receipts on a simple paper.

6. I went through the record in the light of the above submissions.

7. It is by now well‑settled that only wilful default in payment of rent renders the tenant liable to ejectment, and if the Court cannot definitely resolve the point as to whether the default for a particular period was wilful or otherwise and as to whether the tenant can be declared as defaulter or not then the doubt should be resolved in favour of the tenant. In this case it was specifically pleaded in the written statement that the landlord never issued receipt for rent which was paid to him. On the other hand the landlord while appearing as P.W.1 stated that he regularly issued the receipts. It was admitted by him that the appellant is in occupation of the shop as tenant for the last 15/16 years. However, in spite of it the landlord did not deem it proper to produce the counterfoils of the receipts in Court to show the veracity of his plea. In the application for ejectment the rate of rent was shown to be Rs.200 p.m. but the Court while deciding the relevant issue No.2 regarding the rate of rent held it to be Rs.100 p.m. The appellant also, produced money order receipts R.W.1/1 and R.W.1/2 indicating that the rent at the rate of Rs.100 was sent to the petitioner on 25‑2‑88 and 5‑3‑

88. The factum of the sending of the rent through money order by the tenant was not denied by the landlord in his examination‑in‑chief in spite of the fact that he knew that point of tendering rent through money order has been specifically raised in the written statement although in the cross‑examination it has been stated that no money order was received by him from the side of the tenant. However, presumption of correctness is attached to official acts and the receipt of money orders will g show that these were sent to the landlord. The tendering of rent through money order has in a way been admitted by the landlord as would be apparent from the trend of the cross‑examination of the respondent‑appellant and his witnesses on behalf of the landlord. The answer to a question put to the tenant in cross‑examination was: The statement of R.W.2 who is entirely an independent witness also supports the plea of the appellant‑respondent that in spite of his insistence no rent receipt was issued. The material on record indicates that all along the tenant desired to pay the rent on issuance of the receipt to him but the landlord never accepted this demand. The record also bears out that rent was tendered through money orders but was not received by the landlord. In these circumstances, the anxiety of the tenant to pay the rent was manifest and he could not be dubbed as defaulter on the basis of the evidence on record. The learned Rent Controller has not drawn correct inference from the facts proved on record and, therefore, his conclusion of ordering the ejectment of the appellant was unwarranted. This appeal is, therefore, accepted the impugned order of Controller of Rents ‑is set aside and the ejectment application is dismissed. However, the parties are directed to bear their own costs. M.BA./1465/P Appeal accepted.