1983 PLP 297 (SCMR)

MUHAMMAD AFZAL ZULLAH J.‑This appeal through leave of this Court is directed against the judgment of the Lahore High Court dated 3‑10‑1979 whereby the second appeal arising out of a rent matter w4s dismissed, The appellant, a tenant, was directed to be evicted on ground of default in payment of rent. Leave to appeal was granted to consider the effect of a payment made and accepted by the respondent/landlady and also of pleadings in connection with the period and amount of default. The period of default is from 10th March, 1975, to 30th May, 1975. The tenancy period was from 10th of one calendar month to the 9th of the next calendar month. The rent was to be paid in advance for each tenancy month before the 15th of calendar month. One monthly payment by cheque was admittedly made to the respondent during the month of March, 1975. It was issued on 18‑3‑1975 and was cashed on 27‑3‑1975. According to the above facts the rent for the month of March should have been paid before 15th March, 19'75, but it was paid on 27th March, 1975. However it will not constitute a default in law because in this case admittedly 15 days time would be allowed over and above the date fixed in the agreement for payment of the rent. Thus, there was no default for the month of March. The rent of April, 1975, was not paid before 15th April, 1975, nor it was paid till the 30th April, i. e. within the grace period. This was one default in payment of monthly rent. Similarly the rent for the month of May was payable before 15th May, 1975, but the same, not having been paid by then no within the grace period of 30th May, 1975, the petition for ejectment was instituted on the said date. Thus, there was this second default in the payment of monthly rent. Learned counsel for the appellant has tried to argue that the payment made on 27th March, 1975, should be treated as the payment of monthly rent for April, 1975, as being advanced before 15th April, 1975. There is no material or support for such a supposition except the silence of the respondent/landlady in her application to the averment made in this behalf in the written statement of the appellant. This by itself would not be sufficient for this Court to interfere with the finding of fact particularly when no question was asked from the landlady in cross‑examination suggesting to her the plea now being taken. Learned counsel for the appellant also contended that although the respondent's case was that there was a written agreement between the parties on the question of the advance payment of rent as also on the question of the dates regarding tenancy month, but the written agreement was not placed on record of the learned Rent Controller. Even if it is correct that the agreement was not retained by the learned Rent Controller on his file, the record does not show that the parties and the learned Rent Controller were not aware of the said agreement. Admittedly the provisions of the Evidence Act are not attracted. The point raised by the learned counsel is not such as to lead a necessary conclusion of a prejudice to the appellant. After hearing the learned counsel, we do not find any justification for interference on the finding of fact with regard to the default in payment of rent. This appeal accordingly fails and is dismissed. There shall, however, be no order as to costs. On undertaking by the learned counsel that the appellant would volun tarily surrender vacant possession after payment of due rent to the respondent till the date of the delivery of the possession, the appellant is allowed two months time to vacate the premises. Appeal allowed.