1989 PLP 1227 (CLC)

P L D 1988 Kar. 372; 1975 S ,C M R 464; 1982 PSC 210 and PLD 1976 Lah. 594 ref. Niazi Abdul Khaliq for Appellants. Ibrahim Moosa Lakhanifor Respondent. Date of hearing: 23rd October, 1988. Mst. Khadija Bai had filed an ejectment application against Mst. Hajiani Sher Bano and others under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and had obtained an order of ejectment. The Ist appeal of Mst. Hajiani Sher Bano having been dismissed by the learned Ist Additional District and Sessions Judge, the tenants have come in this IInd Appeal before this Court. The facts as disclosed by the ejectment application are that the respondent Mst. Khadija Bai is the owner of the building and the appellants are the tenants in respect of a godown therein on a monthly rent of Rs.75 that they are irregular in the payment of rent and that on the date of filing the ejectment application (February, 1975) they were in arrears of rent for 13 months from January 1974 to January, 1975, the amount of the total arrears being Rs.975. The allegation of sub‑letting was also leveled against the appellants and it was alleged that the Godown had been sub‑let to M/s. Muhammad Khan and Karim. In their written statement, the appellants denied that they had been irregular in the payment of rent and stated that the respondent willfully avoided to collect rent in order to create a ground for ejectment and that the respondent was irregular in issuing receipts of rent right from 1969. As for the default for the period stated above, it was explained that when the respondent persistently avoided to collect rent it was remitted by money orders which were also returned due to the refusal of the respondent. As for the allegation of sub‑letting, it was explained that the appellants were doing their business on commission basis, implying that the persons said to be sub‑lessees were their agents. It was also stated by the appellants that they were old tenants in respect of this Godown and were carrying on their business in the same manner, on commission basis, long before the tenancy Ordinance became applicable to Karachi.

2. After recording the evidence adduced by the parties, the learned Rent Controller came to the conclusion that the allegation of sub‑letting had not been proved but it was proved that the appellants had committed default in payment of rent, as alleged and vide order dated 6th May, 1978, the ejectment application was accepted and order of ejectment was passed against the appellants. Their Ist Appeal was also dismissed by the Ist Additional District and Sessions Judge, Karachi on 31‑3‑1986.

3. Counsel of the parties have been heard and the record has been perused. The only point for consideration is as to whether rent for the period commencing from January, 1974, had been duly tendered by the appellants. Haji Haroon, the attorney of the respondent admitted to his cross‑examination that eight money orders sent by the appellants were not accepted by him because they were sent late. These money orders are on record as Exh.8/10 to Exh.8/7. Exh.8/10 shows that rent for 3 months, January to March, 1974, was sent on 27‑3‑1974. Money order coupon Exh.8/11 shows that rent for the period January, 1974 to June, 1974 was sent on 10‑6‑1974 and money order coupon Exh.8/12 shows that the rent for the entire disputed period (January, 1974 to January, 1975) was sent on 27‑1‑1975. Similarly rent was sent by money orders in the past also vide money order coupons l kh.8/13 to Exh.8/17. The crucial documents are the money order coupons .Exh.8/10, Exh.8/11 and Exh.8/12. They pertain to the disputed period and it is to be seen whether rent was tendered in time through these money orders.

4. At the bottom of page 3 and in the earlier part of page 4 of the order of the learned Rent Controller it is stated that the money order coupon Exh.8/10 does not bear any date and it is therefore, not proved that rent for January, February and March, 1974 was sent by the appellants on 27‑3‑1974 as alleged by the appellants. A similar observation was also made in respect of money order coupon Exh.8/11 and it is stated that this money order coupon also does not bear any date. It was however conceded that money order coupon Exh.8/12 does bear the date of 27‑1‑1975. As a result, the tender of rent, or its remittance, through the first two money order coupons Exh.8/10 and Exh.8/11 was not accepted as being in time and, therefore, tender of the rent for the entire disputed period (January, 1974 to January, 1975) vide money order coupon Exh.8/12 was held to‑ be too late and, therefore, of no consequence. The learned Additional District Judge in his order, whereby he disposed of the first appeal, also observed that "As one money order does not bear any date, therefore, the finding of the learned Trial Court is proper". The learned Additional District Judge then specifically referred to money order coupons Exh.8/10 and Exh.8/11 and stated that both of them do not bear any date and that, therefore, it was not proved that the rent was tendered by the first money order coupon on 27‑3‑1974. It was however conceded that there being no written rent agreement stipulating the mode of payment, the rent for the period January to March, 1974 could have .been tendered upto 30‑4‑1974. A minute examination of the money order coupons Exh.8/10 and Exh.'8/11 reveals that both the Courts below have committed an error of fact in concluding that these money order coupons do not bear any date. As a matter of fact both of them bear the dates and the money order numbers. The reason why both the Courts below fell into the error of holding that these two money orders coupons did not bear any date appears to be that both these money order coupons are printed in Urdu and the column for writing the money order number and the date on which the money order was received by the Post Office are on the left side of the money order coupons. This portion of the money order coupons was stitched in the file and was not visible and no effort was made either by the Presiding Officers of the Courts or by the counsel of the parties to undo the stitching and examine the coupons properly. A similar argument was made before this Court as well that these two money orders coupons did not bear any dates but when the stitching was removed it was found that both of them did bear the dates on which they were tendered in the Post Office. This is also clear from the fact that counsel of the respondents as well as both the Courts below concede that the third money order Exh.8/12 was dispatched on 27‑1‑1975 and is to be noted that this money order coupon is in English and the relevant column for writing money order number and the date of issue are on the right side of the coupon which was not affected by the stitching of the coupon in the file and were easily visible.

5. The postition which, crystallizes now is that the rent for the months of January, February and March, 1974, was tendered on 27‑3‑1974 and it was thus tendered in time. The respondent had also filed another ejectment application against all the tenants of the building on the ground‑that he wanted to reconstruct the premises and also on the ground of default and an order of eviction was passed against all the tenants who had gone in appeal and vide order dated 12‑10‑1983 in FRA No.98/1982 all such appeals had been disposed of by the High Court and it appears from page‑3 of this judgment that counsel of the respondent had conceded in respect of some of the tenants the practice of collection of rent in lump sum and on that ground eviction of those tenants was dropped on the ground of default. There does not appear to be any reason why the respondent should not be following the same practice in respect of the appellants. I am, therefore of the view that there is sufficient evidence on record to conclude that there was practice between the parties whereby rent was collected by the respondent periodically. Thus there is no default as held in PLD 1988 Kar.

372. The learned counsel for the respondent referred the Court to the observation in 1975 SCMR 464 wherein it has been held that mere refusal of the landlord to accept rent tendered on an earlier occasion does not absolve the tenant of his continuing liability to tender the same for each successive month. It is‑of course true but the circumstances show that the appellants had not committed a wilful default. They were continuously offering the rent for the disputed period through money orders which were returned. It was next contended by the learned counsel for the respondent that the allegation of default having been decided n favour of the respondent by the learned Rent Controller and having been upheld by the Ist Additional District Judge, the concurrent findings of the two Courts may. not e set aside in second. appeal and reliance was placed on 1982 PSC 210 in which it is held hat concurrent findings of fact by two .Courts shall not be touched in second appeal and in this regard reference was also made to PLD 1976 Lah. 594 wherein it is further held that if the findings of the two Courts are manifestly unjust and based on no evidence or inadmissible evidence then the concurrent findings of fact by two Courts may also be set aside in second appeal. 1 am in respectful agreement with the observations in there authorities but I am of the view that since both the Courts have made a mis‑statement of fact that money order coupons Exh.8/10 and Exh.8/11 do not bear any date and were, therefore, of no consequence in showing that the rent was tendered in time through, them, and since they have acted on this misstatement of fact, their findings are liable to be set aside. For the reasons given above, the appeal is accepted, the': order of learned Rent Controller dated 6‑5‑1978 and judgment of the Additional District Judge dated 31‑3‑1986 are set aside and the ejectment application of Mst‑ Khadija Bai is rejected. The parties are left to bear their costs. M. Y. H./S‑280/K Appeal allowed.