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Civil Petition No.385 of 1981, decided on 12th January, 1984.

(On appeal from the judgment and order of the Sind High Court on let June of 1983 in IInd Appeal 188/1981).

‑‑‑Art.185 (3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss.13 & 15(4)‑‑Leave to appeal granted to consider (i) whether earnest money paid by tenant to landlord could be adjusted towards arrears of rent, and (ii) whether concurrent findings against tenant on question of default in payment was open to reversal in second appeal.

Shafaat Hussain, Advocate Supreme Court and Faizanul Haq,

Advocate‑on‑Record for Petitioner.

E. Rahimatullah, Advocate Supreme Court and S. M. Abbas,

Advocate‑on‑Record for Respondent.

Date of hearing: 12th January, 1984.

‑‑This petition is directed against the judgment and order of the Sind High Court passed in Second Appeal No.188 of 1981.

2. On 23‑3‑1966 the petitioner landladies filed an ejectment application against the respondents on the ground of default in the payment of rent from 1‑7‑1965 up to the date of filing the ejectment application and also on the ground of subletting and unauthorized construction. The respondents contested the ejectment application with regard to the default they took the plea that the petitioners had allegedly entered into an agreement of sale of the disputed premises with the predecessor of the respondents in July, 1966. It was further alleged that sum of Rs.1,000, in cash, and another sum of Rs.6,000 by a cheque, was received by the petitioners by way of earnest money; that the agreement for sale did not materialise and the cheque for Rs.6,000 was returned to the respondents whereas the amount of Rs.1,000 paid is cash, adjusted towards the arrears of rent from July, 1965 upto November, 1965.

3. The learned Rent Controller passed an ejectment order against the respondents. First appeal filed before the learned District Judge was dismissed but the second appeal filed in the High Court was allowed vide the impugned judgment.

4. Learned counsel for the petitioners has contended that the learned High Court Judge has erred in holding that the alleged amount of Rs.1,000 paid as earnest money, was adjustable towards the arrears of rent; that the payment of Rs.1,000 in cash has not been proved by the respondents to have been paid to the petitioners as there is no evidence on the record to substantiate this plea yet the learned Judge of the High Court believed the statement in his behalf; that the conclusion drawn by the learned Judge in the impugned order that the alleged amount of Rs.1,000 retained payable by the respondents to Fide Hussain and in the request of Fide Hussain this amount was adjustable towards the rent, is erroneous and lastly, the learned counsel urged that on the question of concurrent finding of facts by two Courts below is, favour of the petitioners for payment of Rs.1,000 in cash, should not have been disturbed by the learned High Court Judge.

5. We have considered the contentions raised by the learned counsel and we find that the submissions require re‑examination. Accordingly we grant leave. Security Rs.2,500. Record and proceedings of the Controller shall be summoned.

S.Q. Leave granted.

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