' On 3rd March, 1971, the learned Single Judge granted certificate for leave to appeal against the impugned- judgment on the only ground that "the interpretation of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 has not been properly appreciated".
2. The respondent is the landlord of a multi-storeyed building consisting of several flats and the appellant is a contractual tenant of one of the flats from 22nd November, 1962. Although reference has been made to a written agreement it has not been exhibited and in order to determine the terms of tenancy reliance has been placed upon the pleadings and the letters filed by the parties.
3. The respondent filed application for ejectment against the appellant stating that he had demanded rent at the rate of Rs, 76 per month which was the latest assessment fixed by K. M. C.
However in para. 4 of the application the respondent alleged that on 6th March. 1963, he entered into an agreement with the appellant whereby the appellant agreed to pay the rent at the rate of Rs, 50 per month subject to adjustment. This was admitted by the appellant. It was alleged that the appellant was a habitual defaulter and did not pay rent at the rate of 'Rs, 50 per month from 8th December, 1963 till 7th December, 1964.
4. The appellant's defence as stated in paragraph 8 of the written statement was that the appellant "had been regularly paying rent at the agreed rate of Rs, 50 per month uptil 7th December, 1963, and by mutual consent stopped paying at that rate "as the assessment was being finalised". It was further pleaded that on 26th March, 1964 monthly assessment was fixed at Rs, 38 and the appellant started paying rent at the rate of Rs, 38 per month after deducting Rs, 6 for water charges.
'S. The assessm ent proceedings in the case seem to have a chequered history. At first the appellant seems-to have obtained an order on 14th June 1963, fixing the GARV of the flat in dispute at Rs, 156, that is, Rs, 13 per month. This order was made on the statement of the appellant that he was not paying rent to the landlord although on his own admission on 6th March, 1963, he had agreed to pay rent at the rate of Rs, 50 per month subject to adjustments. The respondent filed an appeal against the said order and the Director and Collector Excise and Taxation after hearing both the parties by his order dated 16th December, 1963, allowed the appeal and fixed the GARV at Rs, 600. It seems that earlier on a motion made by some of the tenants of the building the Commissioner by his order dated 14th October 1963, had remanded the case to the Assessing Authority for fixing the rent. This order of remand is not on record but a reference has been made, to it in a notice (Exh. D. W. 1/2) issued by the Assessing Authority inviting objections to the proposal to fix the annual rent at Rs, 360. The respondent filed objection and the Assessing Authority by his order dated 26th March, 1964 (Exh. D/2) fixed the GARV at Rs, 456. Again referring to the order of remand the Assessing Authority by his order dated 22nd February, 1966 (Exh. D. W. 1/1) fixed the GARV of the entire building consisting of eleven tenements at Rs, 5,760. Against the disputed flat under the column entitled "Monthly Rent" Rs, 30 has been mentioned but the column entitled "Assessed Rent" has been left blank whereas against all the remaining tenants amount has been mentioned. However, from the total of the assessed rent it seems that the disputed flat was assessed at Rs, 35 per month. Considering the foretasted orders passed by the Assessing Au thority the learned Single Judge has rightly remarked that "not only is it difficult to see how the Assessing Authority could have thus modified the order of the Director of Excise & Taxation but it is also difficult to see how the Assessing Authority could have modified its own alleged order of 26th March, 1964". Keeping this fact in view it has to be considered whether the appellant has defaulted in payment of rent as contemplated by section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
6. The appellant first wrote a letter on 1st May, 1964 stating that the rent for the period 22nd November, 1962 and 8th May, 1964, at the rate of Rs, 38 per month came to Rs, 665 out of which Rs, 625 had been paid for the balance of Rs, 40 due and payable, after deducting Rs, 30 towards waterman's pay for the last five months at the rate of Rs, 6 per month, paid by him on the basis of an alleged agreement between them, the appellant sent a money order for Rs, 10 in full and final settlement of all rents upto 8th May, 1964. This was not accepted by the respondent. As the respondent did not acknowledge this letter the appellant by his letter dated 11th August, 1964 reminded the respondent to which he replied on 24th August, 1964 stating that the Director of Excise & Taxation had fixed the rent at Rs, 50 per month and, therefore, the appellant had to pay the arrears for the period 8th December, 1963 to 7th August, 1964 which came to Rs, 400. He also repudiated the liability for payment of water charges as claimed by the appellant. The appellant then asked for a copy of the order of the. Director, Exise & Taxation. The respondent by his letter dated 12th September, 1964 supplied a photo copy of extract copy of Register P. T. I. (Exh. P. W. 1)- and demanded arrears of rent from 8th December, 1963 to 7th September. 1964 at the rate of Rs, 50 per month. The appellant did not tender any rent and, therefore, the respondent after waiting for 3 months filed an application for ejectment. The learned Rent Controller dismissed the application which was confirmed by the 1st Appellate Court. An appeal against that order was, however, accepted by the learned Single Judge.
7. Mr. Hassan A. Shaikh the learned counsel for the appellant referring to the various orders passed by the Excise & Taxation Authorities has argued that in view of the confusion created by these orders it was not possible to pay the correct rent and default, if any, had occurred due to this confusion which was not intentional and, therefore, it cannot be treated as a wilful default entailing ejectment. The appellant had actively participated in the proceedings before the Assessing Authortity and was aware of the orders passed from time to time otherwise he would not have offered to pay Rs, 38 instead of R.s. 50 as agreed and as fixed by the Director before whom the appellant had appeared. Leaving the entire controversy relating to the assessments fixed from time to time, if for arguments sake it is accepted that the monthly tent was fixed at Rs, 38 what was the justification for non-payment of rent from and after 1st May, 1964'? The appellant by his letter dated 1st May, 1964 (Exh. P. W. 1/2) claimed deduction of Rs, 6 per month for water charges and offered payment only at Rs, 32 per month. No evidence was produced by the appellant to prove his claim for water charges. Even the respondent was not cross-examined on this point, The appellant, therefore, failed to prove his claim for deduction of Rs, 6 per month. Accordingly it is established that the appellant did not make any valid tender of rent even at the rate of Rs, 38 per month.
Thereafter the rent for 3 months i. e. Upto 8th August, 1964 was tendered on 11th August, 1964 after deducting the water charges. There is no explanation for non-payment of rent between the periods 1st May, 1964 to 8th August 1964. Again after the tender made on 11th August, 1964 no rent was tendered till the ejectment application was' filed on 7th December, 1964. The appellant on his own footing did not tender the rent at the rate of Rs, 38 per month and further defaulted in payment of rent as indicated above. Such defaults- by the appellant were without any lawful excuse and were not unintentional. It is worth mentioning that the appellant in his written statement while admitting that the rent was fixed at Rs, 50 per month subject to assessment further pleaded that he had stopped payment of rent by mutual consent. This plea though pleaded has not been proved and the appellant has A neither referred in his deposition to the alleged agreement nor cross-1 examined the respondent on it. This reflects the state of mind of the appellant who was raising all possible objections and. Pleas to justify the default. But none could be proved. The plea of the appellant may have been bona fide if he would have continued to tender rent at the rate of Rs, 38 per month which he admitted to be the proper rent according to the assessment. Unfortunately on his own showing the appellant has not been able to justify the non-payment of rent. On behalf of the appellant it was feebly suggested that during the period 8th August, 1964 to 7th December, 1964 the- rent was effered but was refused. Mere offer or a pious desire to make payment is not sufficient to establish tender of rent unless the appellant could have proved with positive and definite evidence that the rent was actually tendered to the respondent. If the respondent was avoiding accepting the rent the appellant could have sent it by money order or deposited the same in Court.
June 1963, fixing the GARV of the flat in dispute at Rs, 156, that is, Rs, 13 per month. This order was made on the statement of the appellant that he was not paying rent to the landlord although on his own admission on 6th March, 1963, he had -agreed to pay rent at the rate of Rs, 50 per month subject to adjustments. The respondent filed an appeal against the said order and the Director and Collector Excise and Taxation after hearing both the parties by his order dated 16th December, 1963, allowed the appeal and fixed the GARV at Rs, 600. It seems that earlier on a motion made by some of the tenants of the building the Commissioner by his order dated 14th October 1963, had remanded the case to the Assessing Authority for fixing the rent. This order of remand is not on record but a reference has been made to it in a notice (Exh. D. W. 1/2) issued by the Assessing Authority inviting objections to the proposal to fix the annual rent at Rs, 360. The respondent filed objection and the Assessing Authority by his order dated 26th March, 1964 (Exh. D/2) fixed the GARV at Rs, 456. Again referring to the order of remand the Assessing Authority by his order dated 22nd February, 1966 (Exh. D. W. 1/1) fixed the GARV of the entire building consisting of eleven tenements at Rs, 5,760. Against the disputed flat under the column entitled "Monthly Rent" Rs, 30 has been mentioned but the column entitled "Assessed Rent" has been left blank whereas against all the remaining tenants amount has been mentioned. However, from the total of the assessed rent it seems that the disputed flat was assessed at Rs, 35 per month. Considering the aforestated orders passed by the Assessing Authority the learned Single Judge has rightly remarked that "not only is it difficult to see how the Assessing Authority could have thus modified the order of the Director of Excise & Taxation but it is also difficult to see how the Assessing Authority could have modified its own alleged order of 26th March, 1964". Keeping these fact in view it has to be considered whether the appellant has defaulted in payment of rent as contemplated by section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959.
6. The appellant first wrote a letter on 1st May, 1964 stating that the tent for the period 22nd November, 1962 and 8th May, 1964, at the rate of Rs, 38 per month came to Rs, 665 out of which Rs, 625 had been paid for the balance of Rs, 40 due and payable, after deducting Rs, 30 towards waterman's pay for the last five months at the rate of Rs, 6 per month, paid by him on the basis of an alleged agreement between them, the appellant sent a money order for Rs, 10 in full and final settlement of all rents upto 8th May, 1964. This was not accepted by the respondent. As the respondent did not acknowledge this letter the appellant by his letter dated 11th August, 1964 reminded the respondent to which he replied on 24th August, 1964 stating that the Director of Excise & Taxation had fixed the rent at Rs, 50 per month and, therefore, the appellant had to pay the arrears for the period 8th December, 1963 to 7th August, 1964 which came to Rs, 400. He also repudiated the liability for payment of water charges as claimed by the appellant. The appellant then asked for a copy of the order of the. Director, Exise & Taxation. The respondent by his letter dated 12th September, 1964 supplied a photo copy of extract copy of Register P. T. I. (Exh. P. W. 1)' and demanded arrears of rent from 8th December, 1963 to 7th September, 1964 at the rate of Rs, 50 per month. The appellant did not tender any rent and, therefore, the respondent after waiting for 3 months filed an application for ejectment. The learned Rent Controller dismissed the application which was confirmed by the 1st Appellate Court. An appeal against that order was, however, accepted by the learned Single Judge.
7. Mr. Hassan A. Shaikh the learned counsel for the appellant referring to the various orders passed by the Excise & Taxation Authorities has argued that in view of the confusion created by these orders it was not possible to pay the correct rent and default, if any, had occurred due to this confusion which was not intentional and, therefore, it cannot be treated as a wilful default entailing ejectment. The appellant had actively participated in the proceedings before the Assessing Authortity and was aware of the orders passed from time to time otherwise he would not have offered to pay Rs, 38 instead of Rs, 50 as agreed and as fixed by the Director before whom the appellant had appeared. Leaving the entire controversy relating to the assessments fixed-from time to time, if for arguments sake it is accepted that the monthly rent was fixed at Rs, 38 what was the justification for non-payment of rent from and after 1st May, 1964 ? The appellant by his letter dated 1st May, 1964 (Exh. P. W. 1/2) claimed deduction of Rs, 6 per month for water charges and offered payment only at Rs, 32 per month. No evidence was produced by the appellant to prove his claim for water charges. Even the respondent was not cross-examined on this point, The appellant, therefore, failed to prove his claim for deduction of Rs, 6 per month. Accordingly it is established that the appellant did not make any valid tender of rent even at the rate of Rs, 38 per month.
Thereafter the rent for 3 months i. e. Upto 8th August, 1964 was tendered on 11th August, 1964 after deducting the water charges. There is no explantion for non-payment of rent between the period 1st May, 1964 to 8th August 1964. Again after the tender made on 11th August, 1964 no rent was tendered till the ejectment application was' filed on 7th December, 1964. The appellant on his own footing did not tender the rent at the rate of Rs, 38 per month and further defaulted in payment of rent as indicated above. Such defaults by the appellant were without any lawful excuse and were not unintentional. It is worth mentioning that the appellant in his written statement while admitting that the rent was fixed at Rs, 50 per month subject to assessment further pleaded that he had stopped payment of rent by mutual consent. This plea though pleaded has not been proved and the appellant has neither referred in his deposition to the alleged agreement nor cross-examined the respondent on it. This reflects the state of mind of the appellant who was raising all possible objections and pleas to justify the default. But none could be proved. The plea of the appellant may have been bona fide if he would have continued to tender rent at the rate of Rs, 38 per month which he admitted to be the proper rent according to the assessment. Unfortunately on his own showing the appellant has not been able to justify the non-payment of rent. On behalf of the appellant it was feebly suggested that during the period positive and definite evidence that the rent was actually tendered to the 8th August, 1964 to 7th December, 1964 the- rent was offered but was refused. Mere offer or a pious desire to make payment is not sufficient to establish tender of rent unless the appellant could have proved with respondent. If the respondent was avoiding to accept the rent the appellant could have sent it by money order or deposited the same in Court.
8. Mr. Nizam A hmad, the learned counsel for the respondent has relied upon the case of Mohammad Hussain v. Amtul Batul (1) where it was held that merely because a dispute is going on between the parties is no ground for non-payment of rent. Further in the case of Yousuf Shah v; Haji Ghulum Jan Khan (2) it was held that refusal by landlord does not absolve the tenant from payment of rent. He should continue to pay the entire rent successively every month. In view of the aforesaid dictum of the Supreme Court, which squarely applies to the facts of this case it can hardly be said that the conduct of the appellant in defaulting to make payment of rent was justified or unintentional. The narration of facts mentioned above prove wilful default on the part of the appellant.
9. Mr. Hassan A. Shaikh the learned Advocate for the appellant has argued that as the Rent Controller and the First Appellate Court had given a concurrent finding that no default was committed by the appellant, the same could not be disturbed in Second Appeal. No doubt the concurrent finding of fact is usually not disturbed in Second Appeal but where the concurrent finding was based on misinterpretation of documents, misreading of evidence, misstatement of facts and the documents produced were either ignored or rejected on flimsy grounds the force of concurrent finding is lost and is not binding. To this effect reference can be made to S. Muhammad Matin Mirza v. Jehangir Rustamji (3) and Messrs Friends Cloth Store and other v. Syeda Amtul Aziz (4). On an assessm ent cf the documentary and oral evidence it seems that the learned Rent Controller and the First Appellate Court had misread the evidence and misinterpreted the various orders of Assessm ent.
10. We, therefore, do not find any ground for interference with the judgment passed by the learned Single Judge and dismiss the appeal with no order as to costs. The appellant is allowed two months time to hand over the vacant possession of the flat in dispute to the respondent. {{FOOT NOTE}}
(1) 1979 SC MR 286 (2) 1975 SCM R 464
(3) 1971 SCM R 575 (4) PLD 1971 Kar. 739 {{FOOT NOTE}}