Rent Case No. 289/71 was filed by the appellant/landlord before the Rent Controller on 14-10-1971 on the ground of default in the payment of rent by the respondent/tenant for the period from November, 1969 to October, 1971 and on certain other grounds. The Rent Application was granted by order dated 23-10-1973 on the ground of default only and the respondent was ordered to be ejected. As far as other grounds are concerned, both learned counsel agree that they are not relevant and the only point which is involved here is the question of default. Against the order of ejectment dated 23-10-1973 of the Rent Controller the tenant/respondent filed a First Appeal No. 246/73 which was allowed by order dated 28-9-1974 of the learned III Additional District Judge, Hyderabad, who set aside the order dated 23-10-1973 of the Rent Controller and dismissed the Rent Application. Against this order dated 28-9-1974 passed in First Appeal, the present Second Appeal has been filed by the appellant/landlord.
2. I have heard Mr. M. Zahiruddin Khan, learned counsel for the appellant, and Mr. S. Lnayat Ali, learned counsel for the respondent. According to Mr. M. Zahiruddin Khan, the First Appellate Authority has based his order on two pieces of cvidence and these are a "Faisala" by the Sarrafa Bazar Association Hyderabad dated 22-12-1971, and secondly the defence of the respondent/tenant had been accepted by the First Appellate Authority that the rent had been paid upto July, 1971 by the respondent on the basis that rent receipts were not issued by the appellant and that it had been proved that the appellant was also not issuing rent receipts to other tenants in the premises. It may be mentioned that a money order dated 28-8-1971 was sent by the respondent] tenant to the appellant being the rent for August, 1971 but the same was refused by the appellant.
3. As regards the "Faisala" (Exh. 44), learned counsel for the appellant has attacked the same on the ground that this decision of the Sarrafa Bazar Association was not proved and that it was a concocted document. A perusal of the Exh. 44 shows that it is dated 22-12-1971, that is, after more than two months of, the filing of the Rent Application on 14-10-1971 by the appellant. Then its title shows that a case was filed by the appellant against the respondent which appears to be unbelieveable as the appellant had already filed a Rent Application before the Rent Controller and there was no earthly reason for the appellant to file an application before the Hyderabad Sarrafa Bazar Association for a decision. It is then mentioned in Exh.
44. That after making inquiries it was found that the rent had been regularly paid by the respondent to the appellant upto July, 1971 and that a sum of Rs. 600 was offered to the appellant as the rent from August, 1971 to November, 1971 but he refused to accept Rs. 600 on the ground that he wanted vacant possession of the shop as otherwise his case was already pending in the Court. As observed earlier, after having filed the Rent case, there was no reason for the appellant to move the Hyderabad Sarrafa Bazar Association for a decision. Even otherwise there is no admission on the part of the appellant in the said Exh. 44 that he bad received rent upto July, 1971. 1n the judgment of the First Appellate Authority it is observed that respondent's witness Abdur Rehman's, who had written Exh. 44, had stated in his evidence before the Rent Controller that the appellant had admitted in the meeting of the Sarrafa Association that he bad received rent for the period ending July, 1971. However after this observation the learned First Appellate Authority adds-"no such question was put to P. W. Suleman Exh. 30 (appellant) and hence whatever statement he is alleged to have made was not admissible in evidence". In the circumstances the First Appellate Authority was of the view, and it may be stated correctly, that as such question was not put to the appellant in cross-examination, his admission about receipt of rent upto July, 1971 according to witness Abdur Rehman's is inadmissible in evidence. Further it is strange that in Exh. 44 it is nowhere mentioned that appellant Suleman had admitted that he had received rent upto July, 1971 but in his statement before the Rent Controller witness Abdur Rehman's had stated that in the meeting of the Association the appellant had admitted that he had received rent upto July, 1971. If that were so, this fact should have been mentioned in Exh.
44. Further according to Exh. 44, on the basis of the statements of the parties and witnesses of the respondent (and not the witnesses of the appellant) it was found that the rent had been paid till July, 1971 by the respondent. In the circumstances, no reliance could be placed on Exh. 44 for proving that rent had been paid up to July, 1971 by the respondent or that the appellant had agreed to the decision of the Hyderabad Sarrafa Association as far as this dispute with the respondent was concerned. It may again be mentioned that having filed the Rent Case for ejectment it would be a conduct which would be unnatural for the appellant to approach the Sarrafa Bazar Association for a decision. Further Exh. 44 does not state that it was admitted by the appellant that rent had been paid upto July, 1971 by the respondent. In the circumstances Exh. 44 cannot be used against the appellant for establishing that rent had been paid upto July, 1971 .By the respondent.
4. As regards the rent receipts not being issued, the First Appellate Authority has found that as the appellant was not issuing receipts to the other tenants of the premises, there was nothing extraordinary as far as the non-issuance of receipts to the respondent and if the respondent could not produce receipts it did not affect his defence. Further it was found by the First Appellate Authority that counter-foils of the rent receipts were not produced by the appellant. Firstly it may be mentioned that the Rent Controller came to the wrong finding that there was evidence that rent receipts were not being issued by the appellant to other tenants. Two witnesses examined on behalf of the appellant namely P. W. Muhammad Iqbal and P. W. Zahoor Ahmad have stated that they were tenants of the same building of the appellant and that on rent being paid by them, the appellant has been issuing receipts to them. Admittedly no cross-examination of these witnesses on this point was done on behalf of the respondent and, therefore, this fact goes uncontroverted that as far as two other tenants were concerned, the appellant was issuing receipts to them. As regards the production of counterfoils, the appellant had stated that he did not keep any counterfoils. From this fact alone no adverse inference could be drawn that the appellant did not issue any receipts.
5. The plea of the respondent before the Rent Controller was that he was paying rent and that in fact he had paid the rent upto July, 1971 but receipts were not issued by the appellant. In Exh. 34, which is reply of the respondent dated 17-8-1971 of the two notices dated 11-8-1971 and 13-8-1971 (Exhs. 32 and 33) issued by the appellant to the respondent, the respondent had referred to disputes between the parties over several matters. If there were disputes between the appellant /landlord and respondent/tenant, there was all the more reason that the respondent should have been on guard as a reasonable tenant to obtain receipts or also he should have sent the rent through money orders or deposited the rent with the Rent Controller. In the circumstances, on the basis of the evidence on record, in my view, the Rent Controller had come to the correct conclusion that the ejectment application should have been allowed on the ground of default and the order dated 28-9-1974 of the First Appellate Authority cannot be maintained and is liable to be set aside.
6. As a result this II Appeal No. 255/74 is allowed, the order dated 28-9-1974 in First Appeal No. 246 of 1973 is set aside and the order dated 23-10-1973 of the Rent Controller in Rent Case No. 289/71 is maintained. The respondent is however, granted time till 31st March, 1982 t o vacate the premises.