1993 PLP R1516 (SCMR)

Rasheed A. Rizvi, Advocate Supreme Court and MA.I. Qarni, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 24th April, 1990. ABDUL KADIR SHAIKH, ACTG. CJ. ‑‑‑This is a petition for leave to appeal from the judgment of the Sindh High Court dated 28‑1‑1990 whereby an appeal filed by the petitioner was dismissed and the order of the Rent Controller directing her eviction from the demised premises was upheld. Facts of the case, briefly stated, are as under: Respondent landlady applied for petitioner's eviction from the demised premises on the ground drat she had failed to ‑pay rent for the month of August, 1985 and also gas and other charges payable by her. Petitioner denied these assertions and asserted that she had paid the rent to the respondent for months of August to October, 1985 but she issued receipts for two months only i.e. for August and September, 1985 and failed to issue the rent receipt for the month of October, 1985 despite repeated demands. According to the petitioner she had tendered rent for the months of November and December, 1985 but respondent refused to accept the same and therefore, she remitted rent for the months of November and December, 1985 and January, 1986 in advance through money order dated 5‑1‑1986 which was returned to her on the refusal of the respondent to receive the amount. In the circumstances, therefore, petitioner deposited rent for the three months in Court and the rent for the succeeding months was also deposited in Court. On the basis of evidence produced by the parties learned Rent Controller held the petitioner guilty of default in the payment of rent for the month of October, 1985 and also for default in payment of water‑pumping and other charges and accordingly directed petitioner's eviction from the demised premises. On appeal at the instance of the petitioner learned Judge in the High Court, however, upheld the findings of the Rent Controller with regard to petitioner being a defaulter in payment of rent for the month of October, 1985 but he reversed the finding of the Rent Controller with regard to the allegation that petitioner was also a defaulter in payment of gas and other charges. It was pleaded on behalf of the petitioner before the High Court that it was at best a case of one month's default and hence the petitioner is entitled to indulgence of the Court with regard to discretion in her favour and the order of eviction in the discretionary exercise of jurisdiction should not be passed against her. Learned Judge in the High Court, however, took the view that "On the contrary the contention of Mr. Hussain Adil Khatri (learned counsel for the respondent landlady) that the appellant (petitioner herein) was a compulsive liar and because of taking up the false plea of having paid the rent of October, 1985 to the respondent disentitles her to the exercise of discretion in her favour, appears to be more appealing". On this view of the case learned Judge in the High Court dismissed the petitioner's appeal by the impugned judgment. Mr. Rasheed Rizvi, learned counsel appearing in support of the petition, submits that the observation made by the learned Judge in the High Court that the petitioner was a compulsive liar is not based on legal evidence on record and he has also misread the evidence proved in the case in reaching the finding that petitioner was a defaulter in the payment of rent for the month of October, 1985 when the respondent herself has initiated the ejectment proceedings on the ground of default in payment of rent for the month of October, 1985. This and other submissions raised in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Security in the sum of Rs.5,

000. M.BA./M‑1761/S??????????????????????????????????????????????????????????????????????????????? Leave granted.