' This is a rent appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the rent Ordinance) from the order of the 1st Additional District Judge, Karachi dated 28th July, 1972 in Rent Appeal No, 424/69 whereby the learned. Judge allowed the appeal of the respondent from the order of the Rent Controller ordering ejectment of the respondent from a shop.
2. The respondent, Tajamul Husain, was tenant of the appellant G. M. E. Patel, in respect of shop no. 6 Sky view Building, A. M. 1, Frere Road, Karachi, on a monthly rent of Rs, 34.59. The appellant was a resident of South Africa and he had appointed an attorney to look after and manage the building and to collect the rent from the tenants. As the respondent/tenant had not paid the rent since Is t December, 1966, the attorney sent a notice to the respondent by registered post-dated 21st October, 1967 demanding payment of the arrears of rent and a month later, he filed application on behalf of the appellant under section 13 of the Rent Ordinance for the ejectment of respondent from the shop. The plea of the respondent in his written statement was that the rent was being offered to the attorney of the appellant but the same was refused, as he wanted to increase the rent. His other plea was that he was ready and willing to pay the rent and that he had in fact moved an Application No, 791/68 before the Rent Controller on 8th April, 1968 for permission to deposit the rent, even before receiving summons of the ejectment application. Only the attorney and the respondent were examined. By his order dated 10th July, 1969 the Rent Controller held that the respondent had committed default in payment of the rent from December, 1966. He disbelieved the respondent's plea that he had offered the rent to the rent collector and that he had declined to accept it and, in any case, if the appellant's man had refused to accept the rent, it was the duty of the respondent to send the same by money order. In the result, he allowed the application and ordered ejectment of the respondent from the shop.
3. The respondent preferred an appeal to the Ist Additional District Judge, Karachi. The Appellate Court accepted the version of the respondent and held that the appellant's attorney himself was not prompt in recovering rent as he had given notice after a lapse of 10 months and further that the respondent who was an old tenant of the shop since the year 1952 was paying a low rent of Rs, 35 per month at old rates for which the landlord could easily obtain such higher rent as the shop was situated on Burns Road, in a busy and valuable shopping area and therefore the respondents version that the rent" was tendered but appellant's attorney purposely did not accept the rent in order to make out a case for ejectment, was plausible. Moreover, the respondent had voluntarily deposited the rent in Court before receiving notice of the ejectment application, although it was filed earlier. This last circumstance was misconstrued by the Rent Controller who failed to realize that the deposit of the arrears of rent was made by the respondent in Court before receiving notice of the ejectment application. In these circumstances the Appellate Court held that the appellant had failed to establish wilful default by the respondent in the payment of rent. Accordingly, he allowed the respondent's appeal by the impugned order dated 28th July, 1972. Being aggrieved thereby the appellant had filed this present appeal.
4. It is well settled that the question whether the respondent had committed default in payment of rent is a question of fact on the evidence. The Appellate Court after considering the evidence and other circumstances of the case held that no wilful default in the payment of rent by the respondent has been established. This finding of fact of the Appellate A Court cannot, therefore, be reviewed in second rent appeal unless the Appellate Court has misconstrued the evidence, as held in a number of reported decisions of this High Court, which-were relied on in recently in Mst. Motibai Boman Irani v. Abbasbhoy Mossaji (1) cited by Mr. Mustafa Lakhani learned counsel for the respondent. The contention of Mr. Muhammad Shafi learned counsel for the appellant is that the appellate Court misconstrued the evidence in respect of two important matters, firstly, with regard to the admission of the respondent that the rent was in arrears, from 1st December, 1966 and secondly, that the respondent failed to prove his assertion that he had tendered the rent due but the same was refused by the attorney. In support of these submissions, Mr. Mohammad Shafi referred to Hail Fida Husain v. Mohammad Ibrahim Khan (2). In that case the tenant had admitted in his written statement that he had not paid the rent for two months but pleaded that there was an agreement as well as a practice that the rents for several months should be paid in a lump sum and that the landlord used to send his man for collecting the rents. The tenant, however, failed to prove the alleged agreement or practice. This finding was upheld in first appeal and also by the High Court. In these circumstances the Supreme Court refused to grant leave to appeal to the tenant. The case is, therefore, distinguishable as the respondent in the present case has not pleaded any such agreement or practice but merely a tender of the rent and its refusal by the appellants. Mr. Muhammad Shafi also cited Muhammad All Mullah v. Ziaul Islam (3) a judgment of this High Court. In that case the tenant had not paid the rent for some 21 months before the ejectment application was filed against him and his plea was that the landlord used to collect rent in a lump sum instead of petty rent of Rs, 19 per month. This plea was accepted by the Appellate Court but the High Court allowed the second appeal on the ground that the tenant had failed to establish the case of estoppel under law, by the indulgence shown by the landlord in collecting rent at times in a lump sum. This case is, therefore, also distinguishable.
5. The Appellate Court found that certain circumstances existed which explained the admitted non-payment of rent by the respondent since December, 1966. It was held that as the landlord was an absentee landlord as he resided in South Africa, leaving Ismail Muhammad as his attorney to look after his property in Karachi and that it was not unusual in such circumstances for attorneys to be less prompt in the matter of recovering rents for their absent principals. In fact, Ismail Mohammad did not give notice to the respondent demanding the arrears of rent until after the lapse of some 10 months. Moreover, the respondent perhaps suspecting the improper motive of the attorney in demanding rent through legal notice, which rent he had refused to accept when it was tendered, himself applied to the Rent Controller for permission to deposit the rent even before service of the notice of the ejectment application. There was another circumstance favoring the respondent, namely, that, he had been regularly paying the rent in the past from the year 1952 until December, 1966 and that, therefore, it could not be understood why the respondent should have deliberately stopped paying rent after December, 1966 except for the plausible reason put forward by the respondent in his written statement, as well as in his evidence, that he had tendered the rent but the same was refused by the attorney in order to create evidence to obtain his ejectment and give the shop on PUGGRI or higher rent.
6. With regard to the point that the respondent had failed to prove his assertion that he had tendered the rent to the attorney, it was submitted (1) PLD 1978 Kar. 861 (2) 1962 SCMR 262 (3) PLD 1973 Kar. 56 by Mr. Muhammad Shafi that this plea was not established as the respondent did not give the name of attorney, whom he had approached and therefore there was only the word of the respondent against the word of the appellant's attorney. However, in my opinion, this submission relates to the appreciation of evidence which is beyond purview of the High Court in second rent appeal. As rightly submitted by Mr. Mustafa Lakhani, the appreciation of evidence was a matter for the Appellate Court and the High Court should not interfere even if another view was possible.
7. For the foregoing reasons, I find no force in this appeal which is accordingly dismissed with no order as to costs.