' This second appeal is filed by appellant/tenant against the judgment dated 30th September, 1979 of learned VIIth Additional District Judge, Karachi whereby appeal filed against order dated 20th February, 1976 of the Rent Controller was allowed and the said order dismissing application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 was set aside and appellant/tenant was ordered to hand over the vacant possession of the premises in dispute to the respondent/landlord.
' Brief facts giving rise to this appeal are that application was filed under section 13 of the W. P. Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) seeking ejectment of appellant/ tenant from flat on second floor of the building bearing S. No, M. R. 4159, situate at Kazi Osman Street, near Achhi Qabar, Mithadar, Karachi on the grounds that the tenant had failed to pay arrears of rent at the rate of Rs, 20 per month from 1st February, 1957 to 30th September, 1965 which came to Rs, 2,080 and that the tenant ceased to occupy the tenement and locked the same for a period of nine months. It was also alleged that additions and alterations were made to the tenement, which impaired the value of the property. Written statement was filed by appellant/ tenant on 2nd April, 1968 in which allegations have been denied and the case of the tenant was that he had paid Rs, 1,000 to the landlord which was to be adjusted against the rent from February 1957 to March, 1961 and he further carried out repairs at the cost of Rs, 1,200 half of which that is Rs, 600 had to be paid by the landlord as adjustment against the rent. It is also stated that the tenant made another payment of Rs, 800 to the landlord, which had to be accounted for the rent as such no default was committed. The learned Rent Controller framed four issues relating to default, non occupation of premises, additions and alterations and relief. Landlord has examined his brother and attorney Haji Ali Mohd and another witness Suleman, who testified that the building in which tenant resides is in dilapidated condition and is likely to fall down. Rehmatullah tenant examined himself as opponent. The learned Rent Controller after assessing the evidence gave finding in respect of issues in the negative and dismissed the application. The 1st Appellate Court reversed the finding of the Rent Controller on issue of default. Issue No, 2 with regard to non-occupation of premises was not pressed and issue No, 3 with regard to additions and alterations was also found against tenant. In consequence the 1st Appellate Court set aside the order of the Rent Controller and ordered the tenant to hand over the possession of the tenement to the landlord.
' I have heard the learned Advocate appearing for each party. Since findings of the two Courts below are in conflict with each other on the evidence relating to the issues of default and additions and alterations in the tenement, the evidence brought on the record has been examined. It appears that the reasons given by the 1st Appellate Court to disagree with the findings of the Rent Controller are not consistent with the record. On the question of default the 1st Appellate Court has held that the assertion of the tenant that he has been making payment of rent in lump sum to the landlord is not substantiated. The relevant portion from the judgment of the Ist Appellate Court is reproduced as under :- "There is only oral evidence of respondent himself Exh.
11. The respondent has stated that he paid Rs, 1,800 on two occasions but no documentary evidence has been produced in support of his contention. He has only examined himself. It has also been admitted by the respondent that the appellant used to issue rent receipts in lump sum but no single receipt has been brought on the record."
' In this context apart from what the tenant has deposed before the Rent Controller wherein he has explained in details how the payments were made, there is admission in the evidence of Haji Ali Mohd attorney and brother of landlord who has been examined before the Rent Controller. He has produced counterfoil of the last receipt of payment of rent made by the tenant showing that last rent was paid up to the January, 1957. He has produced the counterfoil of the receipt which has been brought on the record as Exh.
11. Strangely enough in the record of the Rent Controller Exh. 11, is not shown as counterfoil of the receipt of rent paid by the tenant and produced by Haji Ali Muhammad and instead Exh. 11 is shown as deposition of Rehmatullah, who is the tenant. Deposition of Haji Ali Mohd. Has been shown as Exh. B and he has produced other documents which have been exhibited as Exh. 7 powers of attorney, Exh. 8 notice of Advocate, Exh. 9 postal receipt and Exh. 10 acknowledgment receipt. The deposition of Rehmatullah starts as Exh.
11. Deposition of Haji Ali Mohd. Clearly mentions production of counterfoil of the receipt of rent of tenant as Exh.
11. Which is not in its proper place. Any way in the cross-examination of Haji Ali Mohd. It is admitted by him that he and Fateh Moh. Permanently resided in Hyderabad and he recovered rent from tenants after many months. He has admitted therein that sometimes he recovered rent after l2 months and sometimes after two months as he resided in Hyderabad. He denied a suggestion as incorrect that he recovered rent after six months or even after a year. He was confronted with the counterfoil of the receipt Exh. 11 which was produced by him and he admitted that the said receipt Exh. 11 pertains to rent paid by Rehmatullah for a period of two years from 1955 to 1957. This admission clearly supports the case of the tenant that rent used to be collected from him in lump sum. The receipt book with Exh. 11 in it, is attached at the back of the file of the proceedings of Rent Controller. It contains receipts of rent paid by other tenants also. It shows that rent is collected by the landlord in lump sum for longer periods. This clearly shows that it is the practice of the landlord, who resides at Hyderabad, to collect rent after long intervals, whenever he came to Karachi from time to time.
' The 1st Appellate Court appears to be impressed by the fact that arrears were mentioned in the notice of Advocate which was served upon the tenant and since no reply was sent by him there is implicit admission of the outstanding dues. Tenant Rehmatullah in his deposition has explained that after receiving the notice he went to Hyderabad and saw landlord Fateh Mohd. Who admitted that the notice was sent by his brother Ali Mohd. Without his consultation. Rehmatullah further deposed that on the demand of landlord he made payment of Rs, 800 to him which was to be adjusted towards rent from April, 1961 to December, 1968. The landlord promised to send him the receipt later on. No suggestion was put to this witness in the cross-examination that he had not gone to Hyderabad and met Fateh Mohd. Landlord or paid Rs, 800 to him. Fateh Mohd. Has not examined himself and there is no denial of the assertion of tenant Rehmatullah as stated above.
' The 1st Appellate Court was wrongly impressed by the fact that tentative rent order was passed by consent in which the tenant agreed to deposit arrears of rent for three years prior to the filing of the case and the tenant actually deposited the arrears of rent. This is also in conflict with record. The tentative rent order was passed on 18th December, 1968. It is held in the said order that there is no dispute about the relationship of landlord and tenant and the rate of rent. The record further shows that on this date an application was made on behalf of the tenant by his Advocate showing rent account which according to him was due from February, 1968 to November, 1968 for ten months at the rate of Rs, 20 per month which came to Rs, 200. There is also statement of rent account filed on behalf of the landlord which shows arrears of rent for the period of 11 years and 10 months amounting to Rs, 2,840 out of which Rs, 1,440 has been declared to be payable. Both these statements were filed on the same day and the tentative rent order was also passed on the same day. There is no question of consent in regard to this order. Tentative rent order is passed by the Rent Controller to ensure payment of arrears of rent as well as further rent but the question of default is to be declared by the Rent Controller on the evidence. Default is neither condoned nor conceded when the rent is deposited under the tentative rent order.
' With regard to the repairs carried out by the tenant in response of notice from Health Department, K. M. C. The tenant deposed before the Rent Controller that after receipt of notice Exh. 7-A for repairs he sent a trunk call to Haji All Mohd. Brother of landlord at Hyderabad and told him about the notice and repairs, whereupon Haji Ali Mohd. Told him to carry out repairs and the amount to be incurred would be shared half and half between landlord and tenant. The tenant spent Rs, 1,200 on the repairs out of which Rs, 600 were payable by the landlord. In this context the learned Ist Appellate Court has observed that the tenant has not produced a single receipt towards expenses incurred by him on the repairs of the house. During the arguments when it was inquired from the learned counsel appearing for appellant/tenant as to what was the proof that trunk call was made at Hyderabad and repairs were carried out and were there available any receipts, upon which the learned counsel informed that he was engaged to appear in the second appeal only and when his client handed over the file of the case to him, he found that it contains the trunk-call bill and also the receipts relating to the repairs of the house which were carried out after notice was received from K. M. C. It is surprising how these documents were not produced in the evidence. Perusal of record further indicates that before the Rent Controller tenant was represented by Advocate, who had also appeared before the Ist Appellate Court and filed second appeal in the High Court. This Advocate Mr. Ahmed K. Musani died during the pendency of second appeal. Mr. G. M. Salim was engaged by the tenant after the death of Mr. Musani, the trunk-call bill and other relevant receipts have been found in the file of the late Advocate which was handed over to Mr. G. M. Salim. These documents are vital in nature and support the case of the appellant. How and why these documents were not produced in evidence before the Rent Controller and no mention of them was made before the Ist Appellate Court is unascertainable. However, in the interest of justice, I consider it necessary that opportunity be given for recording additional evidence. 1, therefore set aside the judgment of the 1st Appeal late Court for reasons mentioned above and remand the case to him with the direction that the appeal be reopened in its original number and he should re-examine the appellant/tenant to produce the document mentioned above with opportunity to the other side to cross examine and then decide the appeal in accordance with law.
' There will be no order as to costs.