1991 PLP 1953 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to the landlady to examine whether the impugned judgment of the High Court of Balochistan dated 4‑12‑1988 reversing the order/judgment of the Rent Controller was justified in law particularly so when it was based on evidence of doubtful admissibility.

2. The appellant instituted an application for the eviction of the respondent from what is described as Shop bearing Municipal No.1‑22/5A situate on Sarafa Bazar, Quetta City, mainly on the ground that there had been a default in the payment of rent @ Rs.200 per month from 1‑1‑1981 to 31‑5‑1982, default being of 17 months and of Rs.3,

400. The tenancy was claimed on the basis of a written agreement, dated 23‑8‑1965 wherein the rate of rent was shown to be Rs.60 per month which was said to have been subsequently enhanced to Rs.200 per month. The respondent admitted the rent deed and also the rate of rent at the rate of Rs.60 per month initially fixed but denied any enhancement. She instead stated that she had always been paying rent in advance and has made a payment of Rs.1,000 on 7‑5‑1980 in addition to Rs.130 as tax and another sum of Rs.1,200 as advance rent on 11‑10‑1981. She denied being in default and stated that she had been obtaining the receipts on a diary from the appellant who had been refusing issuance of proper receipts to her. The following issues were framed on the pleading of the parties:‑‑ "(1) What is the agreed rate of rent between the parties? (2) Whether the respondent has committed default in payment of rent w.e.f. January 1981 upto May, 1982? (3) Relief?"

3. During the course of the proceedings, by an application dated 12‑2‑1983, the appellant called upon the, respondent to admit or deny the execution of (i) lease deed dated 23‑8‑1965 and (ii) receipt dated 30‑8‑1991. By another application of the same date, the appellant called upon the respondent to produce the original of the note‑book/diary, in which receipts of payment of rent had been recorded. On denial of the respondent of having executed any receipt dated 30‑8‑1991 while admitting the lease deed dated 23‑8‑1965, by another application the appellant corrected the clerical mistake in the date of receipt in mentioning the year to be 1991 instead of 1981. The respondent denied the execution of the receipt. Subsequently the execution of the receipt, dated 30‑9‑1981 was presented which too the respondent denied.

4. After recording of the evidence, the Rent Controller held that the exact rate of rent was Rs.200 per month, that the respondent had failed to prove the payment of it for the period in dispute and ordered her ejectment. On appeal, the High Court by the impugned judgment reversed the finding and the reversal was based on the following conclusions:‑‑ "(i) It is nowhere mentioned in Exh.R/1 i.e. lease agreement that regular receipts shall be issued to the tenant after payment of rent. (ii) The enhancement in the rate of rent could not be proved from an isolated receipt. (iii) The rent was paid in lump sum, without any objection by the landlady. (iv) The receipts recorded on the diary Exh.R/2 to Exh.R/4 were proved. (v) The default alleged against the respondent was not established.

5. After hearing the learned counsel for the parties and going through the entire record we find that there has been a gross misreading by the High Court in coming to the conclusion that "it is nowhere mentioned in Exh.R/1 i.e. lease agreement that regular receipts shall be issued to the tenant after payment of rent". Not only the lease deed contains such a recital in clause (3), in the eviction application it was so mentioned in clause (b) of paragraph

1. In reply to the eviction application, the respondent had admitted that such was the condition but claimed that the appellant was not issuing such receipts. The evidence led at the trial indicated, and it was also the defence of the respondent that whenever she paid the rent, she used to get the fact recorded in her diary and get it signed from the appellant. As there was no objection to giving of such a receipt by the appellant, that fact stands established that as and when the rent was paid to her she executed the receipt on the diary. The diary itself would, therefore, be the indication as to at what interval the rents were paid and whether the respondent was in default or not. Though the production of the diary was denied but two facts make the evidence admissible. In the first place, the photo copies of the relevant entries were filed with the reply to the eviction application and secondly it was never withheld from the Rent Controller. The Diary contains only those receipts of which the photo copies have been exhibited. They do not cover by specific mention the period for which default is alleged. Therefore, such payment could not be read against the period for which the default had taken place. As these receipts in the diary were executed without any objection or hesitation, it could not be said by the respondent that the appellant was avoiding giving receipt, or delaying receipt or collecting rent at intervals.

6. As early as in 1971 in the case of Syed Riaz Ali v. Shabbir Ahmad Khan (1971 S C M R 598) the following law was laid down:‑‑

"In the agreement of lease it was specifically provided that rent for each month will be paid in the next succeeding month. Under section 13 of the Rent Restriction Ordinance the petitioner was liable to be evicted in case of default in payment of rent for a single month. The Rent Controller and the District Judge, however, condoned the delay in view that the respondent was responsible for giving a false impression to the petitioner that rent will be collected periodically. Reliance was placed on receipt of rent by the respondent for several months together. In law the petitioner could not lead evidence in variation of the terms and conditions of the written agreement of lease (sections 91 and 92, Evidence Act). Moreover, the receipt of rent by the respondent for several months at a time showed that the landlord had condoned the default and not that he had consented to vary the terms and conditions of lease regarding payment of rent. In this view the High Court has properly set aside the orders of the lower Courts and allowed application for eviction." In the case of Mst. Hajiani Aisha and others v. Abdul Waheed (P L D 1989 SC 489) the law laid down was reiterated in the following words:‑‑

" .... it has been consistently held by this Court that the mere fact that the landlord accepts rent from the tenant periodically does not mean that he does not desire or expect rent to be paid in time as required by the Ordinance, Haji Muhammad Qasim v. Mehran Ali 1983 S C M R 1205; defence based on the ground of landlord receiving or collecting the rent at intervals of several months is not a good ground because the tenant is under legal obligation to pay rent to the landlord and the landlord is not supposed to go and collect the rent from the tenant, Malka Begum v. Mehr Ali Hashmi 1984 S C M R 755."

7. In the circumstances, vie find that the High Court's judgment is unsupportable on the finding of fact as well as on the point of law. Hence, we accept the appeal, set aside the judgment of the High Court and restore the order of the Rent Controller. AA./S‑630/S Appeal accepted.