1988 PLP 1619 (SCMR)

(ii) The appellate authority has taken a wrong view of the law that only documentary evidence and the documentary evidence alone can establish; the payment of rent and in the absence of it payment of rent cannot be proved otherwise. (iii) The appellate authority has misread the statement of the attorney of the landlady to read an allegation of default therein. (iv) The High Court has taken a Goon statutory ground proceeding 1 of conciliation and arbitration) for sustaining the order of eviction and dismissing the writ petition when ejectment could to ordered only on statutory grounds and not otherwise." The respondent/ landlady applied for the ejectment of the appellant from the ground floor of House No.43, Street No.8, Old Sanda Road, Lahore. The pleas taken were that he had defaulted in the payment of rent and had not paid it since August, 1980 at the rate of Rs.700 per month. It was also pleaded that tenant had damaged the property, that the landlady required the premises in good faith for her own use and that of her son. It was also mentioned in the application for ejectment that there was the intervention of the local the damage caused to the property should application Ordinance. In resisting this application on the ground that it was mala fide, that the landlady had realised Rs.75,000 in two instalments as security and for the purposes of construction of market adjacent to the property in dispute, that she was not in bona fide need, that the rent has been increased time and again from Rs.160 per month to Rs.700 per month. As regards the question of default, the' tenant pleaded as follows:‑ "In the month of February 1983 the petitioner again pressurized the answering respondent to further enhance the rent. The answering respondent refused to do so and also demanded the receipt. The petitioner refused to give the receipt of the rent' of February 1983 and since then answering respondent started. to send the rent through money order. The money orders were received by the petitioner but in the month of September, 1983 he refused to receive the same and since then answering respondent is depositing the same in the treasury with the permission of Mr. Khalid Mahmood learned Rent Controller, Lahore. The answering respondent has not committed any default." , The Rent Controller framed the following issues on the pleadings of the parties: ‑-- (i) Has the respondent not paid the rent from August 1980 to December 1982 and had not tendered it? OPA. (ii) Is the property required bona fide by the landlady for her own use or for that of her family members? OPA. (iii) Has the respondent damage,], the property and reded its value? OPA. (v) Relief. The trial Court decided Issue No.1 in favour of the tenant on the following findings of fact:‑ "The Petitioner's witnesses P.Ws.1 and 2 deposed that the petitioner's husband had told them that the respondent had not paid the rent from August, 1980 to December, 1982 but the petitioner's attorney /husband examined as P.W.3 is silent in his examination‑in‑‑chief with regard to the said period of default. The bona fide need of the landlady was also not proved. The Issue of damage to the property was not pressed on behalf of the landlady. The result was that the application was rejected by the Rent Controller on 29‑7‑1986. An appeal was preferred which was accepted by the learned appellate authority reversing the finding of the Rent Controller on issue No.1 alone. The finding of the District Judge is based on the following observation contained in his judgment:‑ "Although the learned counsel for the respondent has drawn my attention to the fact that the rent of the disputed premises 'was paid to the petitioner by way of money order and subsequently it was deposited in the Court from August, 1983 onwards, yet the fact remains that no receipt whatsoever was ;1~y produced by him regarding his payment of the rent from August, 1980 to December, 1982. It is also worth mentioning here that the learned Rent Controller has also not discussed in the impugned order, while deciding issue No.1, regarding payment of rent by the respondent from August, 1980 to December, 1982. In absence of any documentary evidence on behalf of the respondent, regarding the payment of rent of the said period, it cannot be said that the rent of the disputed premises for that period was paid to the petitioner." A Constitutional Petition was then filed which was dismissed with the following observations:‑ "Default has been established by the evidence of P.Ws.1 to

3. Independent of the above, from their statements, it transpires that parties had expressed their grievances before Member of the Union Council, where petitioner gave an undertaking that he will hand over the residential portion to respondent No.1, within six months and shop within one year. T41lse witnesses have not been cross‑examined on `this point, thus it remains$ un rebutted; although it was a domestic type of settlement, but still the conduct of the petitioner goes to show that he did give an undertaking to this effect. No question of law is involved; nor any ground has been made out calling for inter ference with the impugned order The petition has no merit, and is dismissed in limine." Ch.Khalilur Rehman, Senior Advocate, the learned counsel for the appellant has stated before us that in the writ petition it was specifically mentioned that the order of the ,appellate authority was "clearly based on misreading of evidence and wrongly excluding from evidence" important facts which go‑ to the root of the matter. He has also drawn our attention to the provisions of the Qanoon‑e‑Shahadat made applicable to tribunals also in order to exclude in the matter of default the hearsay statements of the first two witnesses produced by the landlady. It is contended that the conduct of the landlady and her attorney/ husband clearly established that they had realized the rent and there was no legal ground available for getting the tenant evicted. Finding of fact recorded in such circumstances was rot immune from interference in constitutional jurisdiction and the learned Judge in the High Court could not place reliance on a non statutory ground for strengthening the case of the respondent when none otherwise existed. Ch.Hamiduddin, Senior Advocate, the learned counsel for the Respondent has relied on the statement of the husband /attorney of the landlady, where he stated that in 1979 the tenant had undertaken to vacate the premises within one year but not only h.: did not vacate it he picked up a quarrel and stopped paying the rent of the property. This according to the learned counsel should be taken to mean that the default started in 180; and the tenant was obliged to explain the payment of rent for every month within due date whir^: he had not done. The learned counsel has relied on decisions Allah Din v. Habib P L D 1982 S C 465 and Abdur Razzaq v. Saleem Hayat and 4 others P L D 1987 Lah.47, in order to contend that the onus shifted to the tenant and it was for him to prove the payment which he had failed to do. Issue No.1 limited the period of default to the period August, 1980 to December, 1982. The very first sentence of the Rent Controller's finding with regard to Issue No.'1 gives two grounds for rejecting the landlady's position with regard to the issue. The first was that the husband, the attorney of the respondent, was silent with regard to the default for the period August, 1980 to December, 1982. Secondly, what the other two witnesses stated was only what they heard from P.W.3. The P.W.3 having not stated anything on the subject, the testimony of the other two witnesses was rendered of no value. The Rent Controller also believed the statement of the tenant that he had been paying rent regularly up to December, 1982 and the receipts were not executed and thereafter he started making the payment through money order and deposited the rent with the Rent Controller. This conduct of the tenant established his credibility and the statement of the husband of the landlady/her attorney, and her witnesses destroyed their own credibility. As regards the statement referred to by the learned counsel for the respondent it has to be noted that according to the ejectment application para. 8, the handing over of the premises was agreed upon after 6 months from 12‑2‑1983. Therefore, the statement referred to by the learned counsel for the respondent will be relatable to the date 12‑2‑1983 and afterwards and not to the period August, 1980 to December, 1982. The appellate authority has clearly misread the evidence by stating that the Rent Controller has not discussed the evidence with regard to the payment of rent from August, 1980 to December, 19828 It is also erroneous view of the appellate authority on the legal Jurisdictional plains to hold that nothing else but documentary evidence, alone can satisfy with regard to payment of rent. In the Constitutional jurisdiction such a finding of fact could not be blessed and protected. The finding of fact had been recorded by misreading the evidence. It was against the evidence on the recover and on an erroneous view of the law that only documentary evidence and not oral evidence could be availed of for proving the payment of rent. The proceedings before the Councillor or the local Anjuman find no recognition in the rent control law and could not be invoked against the statutory provisions for getting the tenant evicted. In the circumstances, we accept this appeal, set aside the order of the appellate authority and restore that of the Rent Controller. M. B. A. /N‑85/S Appeal accepted.