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Second Appeal No. 59 of 1981, decided on 25th October, 1984.

---S. 21--Ejectment--Default in payment of rent--Order set aside on ground that delay in payment was due to bona fide mistake--Order impugned-Bona fade mistake not established ---- Respondent s plea that finding of the fact accepting explanation offered by respondent, could nut be disturbed in second appeal, repealed--Read: Such rule could be applied in cases of concurrent finding of fact-Further held: Even in case where there is a concurrent finding of fact, it can be disturbed in second appeal if Court conies to conclusion that Courts below have ignored material evidence on record or that it is arbitrary or perverse--respondent having failed to establish that default was caused due to reasons beyond its control, order of ejectment maintained---Appeal allowed.

1983 C L C 1959 ref;

P L D 1966 Kar. 523 and P L D 1983. Lah. 252 ref,.

Muhammad Ali Jan for Appellant.

Usman Issa Bhai Memon for Respondent.

Date of hearing : 15th October, 1984.

By order, dated 10-8-1976 the Controller ordered the respondent to deposit the rent from September, 1976 before 15th of every month at the rate of Rs.350 per month. The respondent deposited the rent in the following manner:

On 4-9 -1976 Rs.1400

On 7-12-1976 Rs.700

On 17-2-1977 Rs.1400

On 3-6-1977 Rs. 700

On 1-10-1977 Rs. 350

On 18-1-1978 Rs.1050

On 25-1-19713 the appellant filed an application for striking off the defence on the ground that the order, dated 20-8-1976 has not been complied with. It was specifically alleged that the rent from October to December, 1976 has not been deposited within the prescribed time. In the counter affidavit the respondent offered explanation for delay as follows :

"That thereafter on or about September, 1977 said accountant Mr. Farooq A. Majid left the service of the opponent No. 1 and handed over the charge of the accounts and responsibility for paying the rent to me.

That while handing over the charge by the former accountant and taking over the charge, by me, I was informed by the said former accountant that four months i.e. Oct. Nov. Dec. 1977 and January, 1978 rent has been already paid and I was asked to pay advance rent. That I was therefore. under the impression that rent for the months of October, November, December, 1977 and January, 1978 was already paid, and therefore, I paid the advance rent for the months of February, March and April, 1978 in advance vide receipt No. 35350 dated 18-1-1978 and again paid sum of Rs.1050 vide receipt No. 41000 dated 23-2-1978 being the advance rent for the months of May, June and July, 1978.

The appellant filed a rejoinder denying these allegations. The learned Controller held that default has been committed and struck off the defence. The respondent filed an appeal which was allowed by the impugned order. The learned Ist Appellate Court held that the delay was due to bona fide mistake as a new accountant had been appointed by the respondent.

Mr. Muhammad Ali Jan the learned counsel for .the appellant has contended that the respondent has failed to establish bona fide mistake on his part. He further contended that by shifting the burden on the employee the employer cannot escape the liability. The main defence is that on or about September, 1977 accountant Farooq had left the service of the respondent and new accountant Maqbool who had taken charge was informed by Farooq that the rent for the months of October, November, December, 1977 and January, 1978 has already been paid. According to the respondent acting upon this information rent for these months was not deposited and he paid advance rent for the months of February, March and April, 1978 on 18-1-1978. The entire defence rests on the internal working of the respondent's office about which the appellant could not have any knowledge and therefore, the entire burden was upon the respondent to establish these facts. Mr. Memon the learned counsel for the respondent relying or 1983 C L C 1959 contended that as specific averments were made to explain the default and merely the rejoinder was filed without seeking any permission of the Court to cross-examine the witness, the statement of the respondent's witness should be accepted as it has not been effectively challenged. I doubted that such a proposition of law can be applicable on the facts and circumstances of this case. Even if the statement has not been challenged in cross-examination although it has been denied in rejoinder, it is completely contradicted by the facts on record. From the deposits made by the respondent it is clear that on 1-10-1977 rent for the month of September was deposited. As on respondent's own showing Farooq had left the service in September and handed over charge to the present accountant the rent deposited in October would have been made by him, If the new accountant was labouring under the impression that the previous accountant had deposited the rent from October to January, 1978, then there was no necessity to go and deposit the rent for September on 1-10-1976. The respondent has not explained how and in what circumstances the rent for September was deposited on 1-10-1977, on which date admittedly the previous accountant was not in the service. The only conclusion that can be drawn is that the new accountant or any other employee or partner of the respondent would have' deposited the rent on 1-10-1977. In view of this fact on record the entire defence set up by the respondent is completely falsified. If lit October the respondent could have deposited rent for the month of September there was no occasion to rely upon the statement of the previous accountant that rent for October to January had been deposited. If rent for September had not been deposited now advance .rent from October could have been deposited. Once it was known that rent for the month of September had not been deposited inquiries should have been made about the alleged deposit for the months of October to January.

It was open to the respondent to have produced account books and other documents to show that the mistake was due to misrepresent ation made by the previous accountant. No such effort has been made by the respondent.

Mr. Memon, the learned counsel contended that as the First Appellate Court has given findings of fact accepting the explanation offered by the respondent, it cannot .be disturbed in second appeal. Such rule can be applied in those cases where there is a concurrent finding of fact. The learned counsel has referred to P L D 1966 Kar. 523, P L D 1983 Lah. 252. In both the cases there were concurrent findings of fact. Even in a case where there is concurrent finding of fact, in second appeal it can be disturbed if the Court comes to the A conclusion that the Courts below have ignored the material evidence on record or that it is arbitrary and perverse. The learned Ist Appellate Court has merely gone by the statement in the counter affidavit and has completely ignored the admitted evidence on record regarding deposit of rent which contradicts the statement of the respondent. The respondent has, therefore, failed to establish that the default was caused due to reasons beyond its control. The impugned judgment of the learned Ist Appellate Court is set aside and the order of the learned Controller is maintained. The respondent is allowed six months time to vacate and hand over vacant possession of the disputed premises to the appellant.

M. I.

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