The appellant above named, being aggrieved by judgment dated 27th August, 1980 passed by Additional District Judge, Court No. 5, Karachi in Rent Appeal No. 53 of 1979, by which he confirmed the order dated 29th November, 1978 passed by IVth Rent Controller and Civil Judge, Karachi, in Rent Case No. 2361 of 1976, has preferred this appeal, inter alia on the following facts and grounds :- The appellant is a tenant of the respondent, in respect of residential premises bearing No. 5.
Situated at Safooran Compound, New Kumbharwara, Lyari Quarters, Karachi, on a monthly rent of Rs. 25 per month. The respondent above named, on 26th May, 1976 filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for ejectment of the appellant, on the ground, that the appellant had failed to pay the rent for a period of 40 months and that he had made additions and alterations in the premises, without the permission of the respondent, which had adversely affected the utility of the tenement. The respondent, in the said application further alleged, that the appellant had made himself an undesirable tenant because of his bad temperament and picking up quarrels with the respondent and her minor children. The appellant above named, filed his written statement in the said proceedings,, in which he admitted relationship of the landlord and tenant, but denied the allegations of default in payment of rent and making additions and alterations in the disputed premises. The appellant further pleaded, that he had paid rent regularly and receipts were issued to him duly, but when the respondent avoided to issue rent receipts, he deposited the rent in the Court. On the basis of these pleadings of the parties, the learned Rent Controller framed the following issues :-
(1) Whether the opponent is a wilful defaulter ?
(2) Whether the opponent has made additions and alterations which have diminished the value of the disputed property ?
(3) What-should the order be ?
3. The respondent examined herself and so also did the appellant, but the latter produced some documents in support of his contentions. The learned Rent Controller also inspected the site on 18th November, 1978 and thereafter taking into consideration the evidence adduced by the parties, the learned Rent Controller came to the conclusion, that the appellant was a wilful defaulter and answered Issue No. 1, accordingly. However, the learned Rent Controller as far as Issue No. 2 was concerned, decided the said issue against the respondent. In view of this the learned Rent Controller granted the application of the respondent on ground of default only, vide his order dated 29th November, 1978.
4. The appellant above named, being aggrieved by the above--mentioned order dated 29th November, 1978 of the learned Rent Controller, filed appeal No. 53/79 in the Court of District and Sessions judge, at Karachi, which appeal was ultimately heard and disposed of by Vth Additional District Judge, Karachi, vide his Judgment dated 27 August, 1980 by which he confirmed the finding of the learned Rent Controller on ground of default and consequently dismissed the said appeal.
5. The appellant above named, being aggrieved by order dated 29th November, 1978 and judgment dated 27th August, 1980 of the learned Rent Controller and Vth Additional District Judge, Karachi, respectively, has preferred this appeal, on the grounds mentioned in the memo. Of appeal.
6. The main contentions raised by the learned counsel for the appel--lant before me were, that both the learned lower Courts have misread the evidence produced by the appellant and have seriously erred in law and facts and have failed to appreciate the authorities cited by the appellant in sup--port of his contentions. According to the learned counsel for the appellant, no rent was due from the appellant on 22nd May, 1976 when ejectment application in question was filed by the respondent, in the Court of the learned Rent Controller, as appellant had deposited upto date rent in Miscellaneous Rent Case No. t086/ 1974, on account of respondent's failure to accept the rents as and when tendered. The learned counsel for the appellant further submitted, that when the appellant insisted for issuance of the rent receipts, the respondent refused to accept the rents, which compelled the appellant to first remit the same by money order and then by depositing the same in Miscellaneous Rent Application No. 1086/ 1974 and as such even if default is technically established, respondent was equally responsible for the same for having refused to issue receipts and as such the learned lower Courts ought to have exercised discretion which is vested in them, in favour of the appellant. The learned counsel also challenged rejection of certain rent receipts produced by the appellant, by both the learned lower Courts, on the ground, that the said receipts were forged.
7. 1 have taken into consideration the above submissions made by the learned counsel for the appellant and have also gone through the record and proceedings of both the learned lower Courts as well as their respective judgments and their reasoning for having arrived at the con-- clusions regarding default in their respective judgments.
8. My learned brother Sajjad Ali Shah, J. By his order dated 8th November, 1980 called for the record and proceedings of Miscellaneous Rent Case No. 1086/1974, which are also before me and I have go through the said record and proceedings.
9. In Miscellaneous Rent Case No. 1086/1974, the appellant has stated, that from October, 1973 the respondent refused accepting rent from him, as she wanted the appellant to vacate the premises in his occupation. 1n this application, the appellant further stated, that respondent had failed to issue rent receipts for a period of six months prior to October, 1973 i.e, from.1st April, 1973 to 30th September, 1973, and consequently, he sought permission to deposit rents from 1st October, 1973,th and onwards by said application. The appellant in reply to the statement of the respondent, stated that he had failed to pay rent from January, 1973 he produced four receipts, Exh. B/t to Exh. B/4 allegedly issued by the respondent for the months of January, 1973 to April, 1973. However, in his deposition, he further stated, that after payment of rents due upto April, 1973 in support of which he produced Exh. B/1 to Exh. B/4, the appellant stated, that the respondent refused to accept the subsequent rents and, therefore, he sent money order Exh. B/5 for Rs. 75 and since the respondent refused to accept the said money order, he filed Miscellaneous Rent Application No. 1086/1974 on 29th April, 1974 in which he deposited rents. He produced details of the deposits made by him in Miscellaneous Rent Application No. 1086/1974 vide Exh. B/7. From this statement of the appellant, it is clear, that the respondent allegedly refused to accept rents from 1st May, 1973 directly from him as well as by money order, which was sent to her, which does not bear any seal, to show the date when it was sent nor appellant has produced any evidence to show in which year this money order was sent and for what period. In the face of this evidence, even if I accept the rent receipts Exh. B/I to Exh. B/4 as genuine, still it is not clear from the evidence of the appellant about payment or tender of rent from 1st May, 1973 till 29th April, 1974 when Miscellaneous Rent Application No. 1086/1974 was filed by him for depositing of rent.
10. The appellant in his Miscellaneous Rent Application No. 1086/1974 in para. 2 had mentioned, that prior to October, 1973, he had paid rents for six months to the respondent but she had failed to issue any receipts and as such he was in arrears of rents from 1st October, 1973 only. However, in his written statement in the Rent Case No. 2361/1976, he has made no such averments nor in his deposition before the learned Rent Controller, he has made such averments. On the contrary, in his deposi--tion before the learned Rent Controller, he had stated that on refusal of the respondent to accept. The money order Exh. B/5 for Rs. 75, he moved Miscellaneous Rent Application No. 1086/1974 and started depositing rents in the said application. In view of this, it is clear that even if Exh. B/1 to Exh. B/4 are accepted as genuine receipts, the appellant was in arrears of rents from Ist May, 1973 upto 31st March, 1974 before filing of Miscellaneous Rent Application No 1086/1974. The money order Exh. B/5 in the absence of any evidence or statement of the Appellant cannot be said when it was sent to the respondent. No doubt Exh. B/5 shows that date of issue 2/2 without specifying the year and obviously the year cannot be 1973, as according to the appellant, he had paid rents upto 30th April, 1973, for which he has produced respondent's receipts Exh. B/1 to B/4 and consequently one can safely presume, that the money order in ques--tion was sent in February, 1974 only, when appellant was in arrears of rents from 1st may, 1973 up to 31st January, 1974. i.e. For a period of 10 months and the amount of Rs. 75 sent by money order could only have covered arrears of rents from 1st May, 1973 upto 31st July, 1973 only. In view of these conclusions of mine, I am of the opinion, that appellant had failed to tender or pay rents at least from 1st August, 1973 till filing of Miscellaneous Rent Application No. 1086/1974 and as such he was defaulter in payment of rents from 1st August, 1973 till 31st January, 1974 for which he has offered no explanation whatsoever. In this view of mine, I see no reason to interfere with a concurrent findings of both the learned Lower Courts in respect of Issue No. 1, on default.
11. The learned counsel for the appellant has relied upon unreported judgment of this Court in Second Appeal No. 58/1965, M/s. Sadiq Traders v. Kaloo Khan, dated 18th February, 1966 and unreported judgment in second Appeal No. 440/1969, Syed Jalilur Rehman's and others. v. M/s. Johar Trading Co. Dated 7th May 1976. I have gone through both these judgments and I find that the facts of both these cases are quite different from the present case and in these two cases, there were no concurrent findings of the lower Courts and as such, in my opinion, these two judgments are of no help to the appellant. This is a second appeal in which, in my opinion, the concurrent findings of fact, of both the learned Lower Court its in respect of default, which are based on cogent reasons, cannot interfered with by this Court. In this view of mine, I am supported by PLD 1976 Kar. 277 and case reported In PLD 1977 Kar. 1031 as well as by case reported in PLD 1977 Kar. 1073.
12. In view of the above conclusions and findings arrived at by me, I dismiss the above appeal in limine, and vacate ad-interim stay granted by this Court. However, I allow appellant four months time to vacate the premises in his occupation and hand over its vacant possession to the respondent.