1. ' This second rent appeal is directed against the order of IIIrd Additional District Judge, Karachi dated 28th April, 1978 exercising jurisdiction as first appellate authority under the provisions of the Sind Urban Rent Restriction Ordinance, 1959.
2. ' The appellant instituted Rent Case No, 1158 of 1975, before the Vth Rent Controller, Karachi against the respondent on grounds of default, personal requirement and impairment of the value and utility of the property. The Rent Controller allowed the application of appellant on the ground of default only. The first appellate authority however did not agree with the Rent Controller and set aside the finding of the Rent Controller on the ground of default also and consequently dismissed the ejectment application of appellant.
3. ' The admitted position in the case is that the ejectment application was filed on 14th February, 1975 and default was alleged in the application from December, 1974. It is also an admitted position that the respondent before institution of the rent case deposited arrears of rent in Court in Misc. Rent Case No, 385/75 on 19th February, 1975. The Rent Controller held the respondent a defaulter in payment of rent on the' ground that the rent was payable in advance according to the agreement between the parties and since it was not paid before 15th of each month, he was a defaulter in payment of rent. The first appellate Court however, did not agree with the finding of the Rent Controller and held that the lease agreement executed between the parties was inadmissible in evidence as it was not properly stamped and, therefore, it could not be looked into for any purpose.
4. It was accordingly held by the first appellate authority that in the absence of an agreement between the parties providing for payment of rent by a specified date the respondent/tenant could pay the same within 60 days of it becoming due. The rent for the months of December, 1974, January, 1975 and February, 1975, which was deposited in Court on 19th February, 1975 by the respondent was accordingly found to be in order and it was held that no default was committed by the respondent.
5. ' The learned counsel for the applicant contended before me that the finding of the first appellate authority that the tenancy agreement (Exh. 3) could not be looked into for any purpose because it was inadmissible in evidence being improperly stamped is based on a misconceived view of law, as the document was already exhibited on record without any objection by the appellant at the time of its production and, therefore, subsequently its production could not be objected on the ground. It is further contended that even an inadmissible document could be looked into by the Court in evidence for collateral purpose. It is pointed out by the learned counsel that in the ejectment application in paragraph 1 the agreement regarding payment of advance rent was specifically pleaded and the respondent admitted the same, in his reply. In these circumstances the Rent Controller rightly took into consideration the term of tenancy agreement which provides for payment of rent in advance. It was accordingly contended by the learned counsel for the appellant that the order passed by the Rent Controller was set aside on insufficient ground by the first appellate authority. The learned counsel for the respondent very fairly stated before me that the finding of the first appellate Court that the agreement of tenancy between the parties could not have been considered in evidence as it was inadmissible in evidence is based on a erroneous view of law. He, however, contended that the finding of the Rent Controller that the rent was to be paid on the 1st of each month in advance in accordance with the agreement was based on a misinterpretation of the terms of tenancy agreement relating to payment of rent. It is contended that the agreement of tenancy did not fix any date for payment of rent but only provided that the rent was payable in advance and, therefore, the case did not fall under the first part of section 13(2)
(i) of the Sind Urban Rent Restriction Ordinance, 1959 , but was governed by the later part of this section which provided that in the absence of such an agreement the rent could be paid within 60 days of it becoming due and, therefore, the first appellate authority rightly held that no default was committed by the respondent and set aside the finding of Rent Controller which was based on a misconstruction of the terms of tenancy agreement. It was alternatively contended by the learned counsel for the respondent that in any case the respondent had given an explanation for not sending the rent by money-order or depositing it in Court and, therefore, in view of the explanation offered by the respondent the discretion should have been exercised by the Rent Controller in favour of the tenant. In so far the contention of the learned counsel for the respondent that the rent was to be paid within 60 days of it becoming due by the respondent in the circumstances of the case and, therefore, no default was committed by him is concerned it has not impressed me at all.
6. In paragraph 1 of the rent application filed by the appellant it is specifically pleaded that the monthly rent is Rs, 300 per month payable in advance as per agreement and this was admitted in the written statement by the respondent. The tenancy agreement (Exh. 3) also provides that rent is to be paid every month in advance. There is, therefore, no doubt that the rent in respect of the premises in occupation of the respondent was to be paid in advance. It is, however, contended by the learned counsel for the respondent that the word "advance" is vague and cannot be interpreted so as to mean that the rent was to be paid on the 1st of each month. In the case of Khalifa Hussain Ahmed v. Mst. Sat Bharai a learned Single Judge of Lahore High Court (as he then was) while examining a similar contention of appellant in that case held as follows :- "I have already stated that the learned District Judge has not taken into consideration the rent note Exh. P. 1 in order to determine the question of default in the payment of rent for the months of August and September, 1969. According to this rent note, which was executed on the 9th September, 1967, the rent of every month was payable in advance. That this rent was payable in advance, is further corroborated by the written statement of the respondent herself that she had1 paid the rent for the month of May, 1969 in advance. It is, therefore, a case where there was a contract for the payment of advance rent. The rent for the months of August and September, 1967, therefore became due on the first of August and the first of September, 1969 and after the expiry of 15 days period in each case, the respondent became a defaulter in the payment of rent for both the months of August and September, 1969. The tender having been made on the 17th October, 1969 it was a clear case of default in the payment of rent for the period from June, 1969 to September, 1969. The basis for exercise of the discretion in favour of the respondent is, therefore, gone."
7. The above case fully supports the contention of appellant in the case before me and I am in respectful agreement with the view expressed in the above case. I accordingly hold that the rent for the months o December, 1974 and January and February, 1975 should have been paid or tendered by the appellant before 15th of December, 1974 and 1St of January and February, 1975 respectively. The respondent was, therefore, in clear default in payment of rent for the months of December, 1974 and January and February, 1975 as the rent for these months was deposited in Court on 19th February, 1975. The Rent Controller did not accept the explanation offered by the respondent for nonpayment of rent by the respondent and ordered his eviction. The reasoning given by the Rent Controller could not be described either a perverse or contrary to evidence on record. The first appellate Court had, however, reversed the order of the Rent Controller on the ground that no default was committed by the respondent which is based on an incorrect view of law. I accordingly set aside the order of first appellate Court and restore the order passed by the Rent Controller. In the circumstances of the case I will make no order as to costs. The respondent is allowed four months' time to vacate the premises. 1980 CLC 648