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Second Appeal No. 7 of 1978, decided on 20th January, 1983.

Ss. 13 & 15‑Payment of rent‑Obligation to pay that of tenant either by money order or by depositing in Court‑Refusal of rent by landlord‑Held, duty of tenant to pay in each successive month whenever falling due‑Obligation of payment of rent on tenant besides being contractual is statutory as well.

Ss. 13 & 15‑Rent‑Tenant not paying rent due to reason that collector of landlord did not come to collect same as per practice Plea of tenant, held, hardly justifying non‑payment and this fact cannot compel Rent Controller to exercise his discretion in favour of tenant and refuse to grant ejectment‑Landlord when wanting to get premises vacated it is necessary that tenant should be more vigilant rather to be indolent and inactive.

Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56 rel.

‑‑‑ Ss. 13 & 15‑Default in payment of rent‑Deposit made after commission of "default", held, cannot wipe off "default".

Ss. 13 & 15‑Default in payment of rent‑Practice of payment of rent in lump sum, held, cannot substitute for statutory obligation of tenant to pay rent every month.

‑‑ Ss. 13 & 15(4)‑‑Second appeal‑Finding of fact‑Finding of fact, held, is liable to be set aside when it is based on no evidence or on misreading of evidence or on extraneous considerations which are not established by evidence on record or on evidence which is r‑)t legal or on mere surmises and conjectures‑High Court disagreeing with finding of fact not being result of correct apprecia tion of material on record.

Pir Bux v. Almas Begum P L D 1969 Pesh. 49; Firm Kirpa Ram v. B. Chint Ram A I R 1947 Lah. 301; G. M. E. Patil v. Tajmul Hussain 1980 C L C 443; Mahboob Ellahi v. Muhammad Zaman 1983 S C M R 37 and Amir Ali V. Alima Ahmed P L D 1981 Kar. 150 ref.

‑.‑ Ss. 13 & 15(4)‑Second Appeal‑Finding of first appellate Court reversing orders of ejectment based on misreading and mis-appreciation of evidence on record and not supported by evidence‑Finding set aside and order of ejectment passed by Rent Controller, restored.

S. A. Majid for Appellant.

Mustafa Lakhani for Respondent.

Date of hearing: 17th January, 1983 .

The appellant is the landlord of Godown No. 17 on Plot No. RY‑16‑1 Railway Quarter of which the respondent is a tenant on monthly rent of Rs. 180. The appellant filed ejectment case against the respondent on the ground that it had defaulted in the payment of rent for the months of November, 1972 to March, 1973, and further that it has also damaged the Godown. The respondent denied these allegations. The Controller by his order, dated 9‑8‑1974 allowed the application. The respondent filed an appeal against the said order, which was allowed by the impugned order, dated 19‑10‑1977 and the order of the learned Controller was set aside.

Before the Controller there were several issues of law and fact but in this appeal the parties have restricted their argument only on the issue whether the respondent has committed default in payment of rent. There is a conflict of decision on this issue between the order of the Controller and the order passed by the First Appellate Court. The dispute relates to the payment of rent from November, 1972, till March, 1973, and the ejectment application was filed on 4‑4‑1973. The respondent has pleaded that it was a practice between the parties that the Rent Collector used to regularly come and collect monthly rent and as be did not come to collect the rent for the month of November, 1972, the respondent sent its representative for payment of the rent for December, 1972, but the appellant refused to accept the same and told him that he would send the Rent Collector. Thereafter, in April, 1973, the respondent sent a cheque, dated 3‑4‑1973 which was returned by‑ the appellant as he had already filed the ejectment case. This plea was denied by the appellant. From this plea raised by the ‑respondent it is clear that the dispute relates to payment of rent from November, 1972 to March, 1973, and, therefore, the main question for decision, is, whether the respondent has defaulted. After examining the evidence, the Controller rejected the plea of 'the respondent. However, it was set aside by the First Appellate Court. The relevant observation of the impugned order is as follows:‑

"It is an admitted fact that at the time of filing the rent case, the appellant was in arrears of rent for 4 months viz. November, 1972 to March, 1973. The respondent has to prove that the appellant was a wilful defaulter. It is a fact that the appellant is a tenant of this godown for last so many years. One document has been produced by the appellant that the rent was paid in lump sum and this amount was Rs. 1,080. The respondent has to prove that the appellant is a wilful defaulter. The case of the appellant is that the collector of the respondent used to come 'and collect the rent and this fact has been admitted by both the parties. The witness of the appellant viz. the Manager and Clerk have stated that the Rent Collector of the respondent did not come to collect the rent hence Mr. Tayyab, Clerk of the respondent was sent but the rent was not accepted. The appellant thereafter sent rent through a Cheque Exh. 15 which has not been accepted. The appellant has thereafter immediately filed Miscellaneous Application in which the rent has been deposited in Court. This shows that the appellant was all the time ready to pay the rent. In case the appellants were not paying the rent deliberately, then they could not have sent the rent by cheque or by depositing in Court. The oral as well as documentary evidence produced by the appellant shows that the appellant was ready to pay the rent, but the respondent was not accepting the rent and the documentary evidence has also came on record that some time the rent was being paid in lump sum. It appears that the respondent has taken the advantage of this practice and has filed this application that the appellant is defaulter. The evidence and circumstances of this case would show that the appellant all the times was ready to pay the rent and when the respondent refused to accept the rent hence the rent was sent through cheque which was not accepted by the respondent. The rent was, therefore, being deposit‑' in Court in Miscellaneous Rent Case as stated above. It appears that the appellant is not a wilful defaulter and the order passed by the learned Judge is not proper and legal."

Mr. S. A. Msjid the learned counsel for the appellant has contended that the First Appellate Court has misread the evidence as the respondent, has failed to establish that it has paid the rent and was not a wilful default. In these premises it is necessary to examine the evidence of the parties. From the evidence of the respondent it is clear that as the appellant did not send his Rent Collector to the appellant the respondent sent his representative to pay the rent, but he did not accept it and told him that he would send his Rent Collector to collect the rent. Thereafter, from the evidence of Tayab the representative of the respondent it seems that no steps were taken by the respondent upto the end of March, 1973. The cheque was sent on 3‑4‑1973 and there does not seem to be any valid explanation for the delay. On its own showing during this period of four months the respondent did not care to take any step to pay the rent to the appellant. The respondent's plea that the rent .was tendered through its representative, if at all accepted relates to the rent due and payable for the month of November, 1972, because, the representative was sent in December, 1972. Thereafter, according to the respondent's own evidence he tendered rent on 3‑4‑1972. It was open to the respondent to have either sent it by money order or deposited it in Court immediately. Even in cases where rent is refused by the landlord it is the duty of the tenant to pay the rent on each successive month whenever if falls due. This obligation on the tenant besides being contractual is statutory as well.

The other contention of the respondent was that if was a practice between the parties that Rent Collector used to come and collect the rent and as he failed to come he did not pay the rent. It has also been stated that the appellant had from long wanted the respondent to vacate the premises. The respondent has also produced a receipt Exh. 14 from which it seems that the rent was being collected immediately on the expiry of the month. If the Rent Collector of the appellant did no come to collect the rent and as according to the respondent, the appellant had an eye on the respondent's premises and wanted to get it vacated it was necessary for the respondent to be more vigilant rather to become indolent and inactive for months together. Mr. Majid, the learned counsel for the appellant has referred to Muhammad Alimullah v. Ziaul Islam P L D 1973 Kar. 56, where it was observed that "a tenant is required to pay the rent to the landlord, and the said Ordinance does not impose any obligation on the landlord to find his tenant and collect rent from him." Therefore, on respondents' own showing this plea can hardly justify the non‑payment of rent. This fact cannot compel the Controller to exercise his discretion in favour of respondent and refuse to grant ejectment.

It seems that the First Appellate Court was influenced by the fact that lump sum of Rs. 1,080 was paid and that the money had been deposited in Court in Miscellaneous Application No. 954 of 1973. This amount was deposited on 17‑4‑1974. It was not deposited immediately when in December, according to the respondent, the appellant avoided to accept the rent. This deposit was made after the default had been committed, and therefore, such deposit cannot wipe in off the default. The learned First Appellate Court has held that the respondent was all time ready to pay the rent, but there is a clear mis reading of evidence as the events that have happened after March, 1973, namely the despatch of cheque and deposit of rent in Court, can hardly establish that the respondent had termed the rent and had made genuine attempts to pay it. As these actions were taken after the default had been committed they cannot help the respondent. The learned First Appellate Court has relied on the fact that as the rent was being paid in lump sum the appellant taking advantage of this practice has filed ejectment application. The evidence on record can hardly justify this finding. In fact no such practice has been established and even if the practice would have been established it cannot be a substitute for any statutory obligation, where a tenant has to pay rent every month. I am of the clear view that the learned First Appellate Court has given his finding which cannot be supported by the evidence on record.

Mr. Mustafa Lakhani the learned counsel for the respondent realising these difficulties raised a technical obligation that in Second Appeal, the finding of fact by an appellate Court, however, erroneous it may be, cannot be disturbed. Reliance has placed on Pir Bux v. Almas Begum P L D 1969 Pesh, 49. This observation was made on the basis of Firm Kirpa Ram v. B. Chint Ram A I R 1947 Lah. 391. Witty due respect the observation made in Pir Bux's case is too wide to be accepted. Further Kirpa Ram's case does not support this observa tion. In that case A I R 1547 Lah. 301; the concurrent finding of fact was set aside by a learned Single Judge and in these circumstances the Letters Patent Bench observed that the Senior Civil Judge (who had heard appeal against the order of the Trial Court)" after a consideration of the entire evidence on behalf of the plaintiff came to the conclusion that the plaintiff had not established that he has reasonable and bona fide need for the shops in dispute for his own purpose. This finding, however, erroneous it may be, cannot be challenged in Second Appeal."

Mr. Lakhani referred to G. M: E: Patil v. Tajmul Hussain198A C L C 443, where it was observed that "the finding of f4ct of the Appellate Court cannot, therefore, be reversed in Second Rent Appeal unless the Appellate Court leas misconstrued the evidence." In this regard reference can be made to 'Mahboob Erllahi v. Muhammad Zaman I983 S C M R 37, where the High Court had et aside the concurrent finding of the appellate Court, while refusing to grant leave, it was observed that "it is true that on mainly High Court s not competent to interfere with the concurrent finding of fact by the learned Courts below, but in the present case, there is sufficient material to show that the Courts below had misread the evidence on record and the Fist Appellate Court had based its conclusion on extraneous consideration which are not borne out or established by evidence on record. Further, reference can be made to Amir Ali v. Alima Ahmed P.L.D 1981Kar 150, where the 1st violate Court had set aside the order of the Controller, it was observed. In my view as in the instant case the learned Ist Appellate Court was not, interfering with the discretion exercised by the learned Rent controller, this Court is competent in the above second appeal to rectify the error committed by the 1st Appellate Court".

From a perusal of the aforestated authorities it seems well‑sewed that a finding of fact is liable to be set aside when it is based on no evidence or on misreading of evidence or on extraneous considerations which not established by evidence on record or on evidence which is riot legal, or on mere surmises and conjectures. Further, as held in Ghulam Nabi v. Jan Muhammad P L D 1950 8 J 90, where the finding of fact is not the result of the correct appreciation of the material on record, the High Court can disagree with such. findings."

As discussed the finding pf the leaned Ist Appellate Court is based on in is reading and misperception of evidence on record and further finding cannot be supported by the evidence.

I, therefore, set aside the order of the 1st Appellate. Court and restore the order of the Controller the appeal is allowed.

M. Y. H. Appeal allowed.

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