1998 PLP 703 (CLC)

1. Consequently Civil Miscellaneous Application No.80 of 1997 is dismissed in default.

2. The respondent filed application under section 15 of the Sindh Rented Premises Ordinance, 1979 claiming in para. 3 of the said application that the appellant has not paid the rent for the months of September and October, 1992 while in the said para. he has stated that the rent for the month of August, 1992 has been received. This application was filed on 3‑11‑1992. There is no written agreement between the parties as such the effect of the law will hold the field. The appellant in written statement denied that he has committed any default. He stated that the rent for the month of September, 1992 was due in the month of October, 1992 while the rent for the month of October, 1992 was due in the month of November, 1992 and in order to be a defaulter in terms of section 15 the appellant should not have paid the rent within sixty days when it became due. According to him the rent was sent through money order for the months of September and October on 14‑11‑1992. When the landlord refused to receive‑the money order the same was deposited in the Court. In support of the application the respondent examined Muhammad Jamil as his attorney. In his affidavit‑in‑evidence he has stated in para. 3 that the rent up to the month of August, 1992 was received. In the cross‑examination he stated that I do not remember when the tenant has lastly paid the rent to the applicant. I do not remember the date of committed default of the rent by the opponent. I do not remember if the opponent has paid the rent to the applicant up to the August, 1992. He further denied that the money order was sent which was refused. He further stated that he had no knowledge that the rent is being deposited in the Court. The appellant examined himself. He produced money order sent to the respondent and the Court receipt, date 17‑11‑1992. The appellant in his cross examination stated as follows: On 12th or 14th September I had remitted rent through motley order collectively of three months from August to October, 1992. That money order came back. I do not know when I had submitted an application in the Court for deposit of rent. I do not remember also the date of deposit of rent in Court. First I had deposited the rent in Court of August to October, 1992. Voluntarily says that I am depositing thereafter continuously. It is correct that first time I had sent the money order on 14‑11‑1992, the rent for August to October; 1992. Learned Rent Controller was. impressed that the appellant has stated that he paid the rent for the three months from August to October, 1992. In the month of November according to him the default has been committed as the rent for the month of August was not sent in due time. Mr. Kamal‑ud‑Din, learned counsel for the appellant states that the learned Rent Controller has given the findings which is not sustainable on record. According to him by virtue of section 10 of the Sindh Rented Premises Ordinance, 1979 the rent is due by 10th of the next month. In order to be a defaulter in terms of section 15 the rent should not be paid for another sixty days. In this case the rent has been admitted to have been received by the landlord up to August, 1992. The rent for the month of September, 1992 was due by 10th October, 1992 and could be paid by 10th December, 1992 beyond 10th December, of course, it can be said that the appellant has committed wilful default. According to section 10 the receipt issued by the landlord, money order sent to the landlord and the receipt of deposit in the Court would be the evidence that the rent has been tendered by the tenant in accordance with law. The contention is that the learned Rent Controller ignored documentary evidence i.e., money order and the deposit of rent which is, dated 17‑11‑1992 in the Court of Rent Controller. The contention urged by the learned counsel for the appellant is proved from the record. The learned Rent Controller has ignored material evidence and has come to the erroneous conclusion that the appellant has committed default. It is not known from where the learned Rent Controller come to the conclusion that the rent for the month of August, 1992 was not paid. although it is an admitted position in para. 2 of the application and also affirmed in affidavit‑in‑evidence filed on behalf of the landlord, Even for the sake of arguments it is taken that in cross‑examination the appellant may have so stated but that does not absolve the Rent Controller from following the provisions of law and came to the conclusion on the basis of the documentary evidence. Ever. otherwise, when the oral evidence is contrary to the documentar<' evidence the documentary evidence is taken to be conclusive. Learned Rent Controller ignored the provisions of section 10 of the Sindh Rented Premises Ordinance, 1979. The findings given by him is contrary to the documentary evidence as such I would hold that the learned Rent Controller has come to an erroneous conclusion while passing the impugned order which is set aside and the appeal is allowed. Consequently, Rent Case No.832 of 1992 filed by the respondent is dismissed and it is held that no default has been committed by the appellant. H.B.T./M‑228/K Appeal allowed.