1981S C M R 1175 (PLP)

JAIR Ullah Khan, Advocate Supreme Court with Sh. Abdul Karim, Advocate-on-Record for Petitioner. Ch. Khalll-ur-Rahman, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Respondent No.

2. Date of hearing 24th August, 1981. M. S. H. QURASHI, J.--The petitioner bad challenged his ejectment ordered by the District Judge, Sargodha, by Writ Petition No. 8859 of 1980 but the same having been dismissed, he now seeks leave to appeal.

2. The petitioner had entered into an agreement of tenancy (Exh. R. 1) with the landlord for a period of five years ending on 31-12-1972 at a monthly rent of Rs.192. The lease was extended for another five years ending on 31-12-1977 at a monthly rent of Rs.300.00 according to the landlord, but at the same old rate of Rs.192. according to the petitioner. It was stipulated that the petitioner would vacate the premises at the end of the second five years period. However, he continued on with his occupation and started sending monthly rents at the rate of Rs.192.00 through money orders and Court callers for the period from 1-1-1978. This led to the institution of the ejectment proceeding against him on grounds of default in payment of rent by the petitioner and also personal use of the landlord. As no receipt had been brought into evidence by either side to establish the rate of rent for the second five years period, the Controller held that the rent had never been raised. He, therefore, found the issue of default against the landlord. He also found the other issue relating to personal use against the landlord and consequently dismissed the ejectment application.

3. In the appeal brought by the landlord, an objection had been taken on the ground of limitation. Admittedly, the appeal was within time if computed on the basis of the date of delivery of copy of the Controller's order but was late by one day if computed on the basis of the date of preparation of that copy. In view of this and the circumstances explained by the landlord in his affidavit, the learned District Judge held that the more convenient and justifiable view would be to compute the time from the date of delivery of the copy where the copying Department issued no notice, as in the present case. He, therefore, condoned the delay. On the issue of default he came to the view that as there had been a receipt (Exh. R. 2) for the lump sum payment of Rs.9,000 as rent for the initial period of five years and as the tenant had paid rent for the second five years period and it had not been his case that the landlord had never issued receipt, it was to be presumed that the payment of rent for the second five years had been reduced in the form of a written receipt which had deliberately not been produced by the tenant. He accepted the landlord's case that the rate was Rs.

300. Consequently the tenant's tender of rent at the rate of Rs.192 from 1-1-1978 did not, in the opinion of learned District Judge, relieve him of his liability and as such he was held guilty of default. The finding of the Controller on the issue of the landlord's need for personal use was also reversed.

4. The High Court, relying on Muhammad Hussain Munir v. Sikandar (P L D 1974 S C 139) held that there was no room to come to a different conclusion in the matter of condonation of delay from that arrived at by the learned District Judge. On merits, the learned Judge declined to intervene as the issues pertained to questions of fact.

5. We have heard learned counsel for the petitioner but find that the view taken by the High Court is not open to exception. All the points had been fully dealt with by the Appellate Court and cogent reasons had been A given for its decision with which the High Court had rightly refused to interfere. The petition is, therefore, dismissed. At the request of the petitioner's- counsel, he is, however, allowed one month's time to vacate the premises which he will do voluntarily and shall pay the rent for the period. Appeal dismissed.