' This second appeal has been preferred against the order passed on 29th January, 1979 by the learned II Additional District Judge in Rent Appeal No, 433i78 whereby he reversed the order of the learned Rent Controller, Hyderabad passed in R. A. No, 494/77.
1. The brief facts of the case are that the appellant landlord filed application for ejectment against the respondent in the Court of the Rent Controller/III Senior Civil Judge, Hyderabad, on the ground that the respondent had failed to pay rent to him since January, 1977 in respect of shop premises No, 307/C-1 Unit No, 11, Latifabad, Hyderabad. The appellant served a notice dated 20th November, 1977 wherein he complained that the respondent tenant had not paid him rent since January, 1977.
The respondent in reply sent on 4th December, 1977 Exh. 17 through his counsel wherein after denying the several allegations made in the notice, pointed out that respondent had paid rent to the appellant till July, 1977 regularly and thereafter the appellant refused to accept the rent from the respondent and accordingly rent for the month of August,. 1977 to November, 1977 was deposited in the Court of the Rent Controller.
2. The ejectment application mentioned above thereafter filed, was contested by the respondent.
Upon the pleadings the learned Rent Controller framed the following issues.
(1) Whether the opponent is a defaulter in payment of rent ? If so since when ?
(2) What should the order be ?
3. The appellant examined himself as Exh. 15 while the respondent (Exh. 21) gave evidence on his behalf and also produced one Muhammad Ashraf Ali (Exh. 22) as a defence witness.
4. The Rent Controller by order passed on 24th October, 1978 allowed the application holding that the respondent was a defaulter in payment of rent from January to July, 1977 and accordingly directed the respondent to hand over the possession of the premises to the appellant.
5. Against the aforesaid order the respondent filed appeal (Rent Civil Appeal No, 433/78) which was heard by the learned IInd Additional District Judge, Hyderabad who by judgment passed on 29th January, 1979 allowed the appeal, and set aside the order passed by the Rent Controller.
6. Against the aforesaid order of the learned 1st Appellate Court the present appeal has been filed.
7. The learned counsel for the appellant argued that the findings given by the learned lost Appellate Court are not based upon the evidence as the burden of proof was upon the respondent to prove that rent for the period from January, 1977 to July, 1977 was paid by him to the appellant.
He further submitted that Muhammad Ashraf Ali D. W. 2 was a friend of the respondent and therefore his evidence ought not to have been believed.
8. I have considered the arguments of the learned counsel and have also perused the record with the assistance of the learned counsel for the appellant. It is contended by the learned counsel for the appellant that receipts for the rent paid by the respondent used to be issued by the landlord (Appellant). In his evidence in reply to a suggestion made in the cross-examination, the appellant stated that it was incorrect that he did not issue receipts for rent paid by the tenants. However no counterfoils were produced by the appellant in his evidence before the learned trial Court in support of his plea that the respondent tenant had not paid from January, 1977 to July, 1977. The learned First Appellate Court has taken notice of this fact in the impugned order passed by him. It has been observed by the learned appellate Court that the appellant has not produced counterfoils of the receipts issued by him for payments made by the tenant.
' On the other hand the contention of the respondent was that in fact no rent receipts were issued to him or even to other tenants for rent paid to the appellant. The respondent in his deposition (Exh.
21) stated that he had paid rent to the appellant personally upto the month of Ramzan last year, i. e. When the case was filed and that thereafter the landlord did not accept rent and asked him to vacate the shop, whereupon rent was sent by money order which was refused by the appellant.
The respondent further deposed that in the circumstances he started depositing rent in the Court.
Muhammad Ashraf Ali (Exh. 22) who was examined as a witness on behalf of the respondent, frankly admitted that he was a close friend of the respondent and that he had advised the latter to obtain the shop on rent from the appellant. He in his evidence stated that he is also a tenant of one of the shops in the building owned by the appellant since 1973 and that the appellant was not issuing any receipt for payment of rent made to him. He further deposed that in fact all the three tenants in the building were not issued any receipt for the payments of rent made to the appellant.
In his evidence he also supported the respondent that the latter used to pay rent to the appellant in his presence. In cross-examination, the above statement of this witness Muhammad Ashraf Ali was not challenged.
9. On the basis of the above evidence and material on record the learned 1st Appellate Court held as follows :- "The appellant has not only examined himself on this point but examined his witness Muhammad Ashraf, also at Exh. 22 in the lower Court who is also the tenant of respondent in respect of another shop. This witness, has stated that the respondent never issued the receipts for the rent paid by him also. The learned lower Court, rejected his evidence on the ground that he happens to be the friend of appellant but did not consider the fact that he is not, inimical to the respondent and is at the same time his tenant. His evidence should have been given due weight specially when the respondent has admitted in his deposition recorded in another matter in between the same parties that he never used to issue the rent receipts. The appellant has thus proved the fact, that the respondent never used to issue the receipts of rents received by him and therefore the appellant had no documentary evidence to prove the payment of rent, by him upto July, 1977. At the same time respondent was also not absolved from proving the non-payment of rent by the appellant from January, 1977, and on the contrary the admission of the respondent that he had refused to accept the rent sent by the appellant through the money order without showing that he had not accepted because it was not for the months from January, 1977, shows that he has falsely set up the claim of rent being due from appellant since January, 1977 else he would have definitely stated that he had not accepted the rent through the money order because it was not from the month of January, 1977. The fact that the appellant had sent the rent for months of August and September to the respondent by money order and deposited the rent in the Court after refusal of the respondent to accept the money order shows, that he was keen to pay the rent and could not be a wilful defaulter."
10. In the light of the arguments advanced by the learned counsel the appellant, I have also perused the judgment of the learned Rent Controller, I however find that the learned Rent Controller has not given due weight to the non-production of the counterfoils of the rent receipts alleged to have been issued by the appellant landlord to substantiate his statement that the respondent had paid rent only upto the period of January, 1977. The learned Controller has also not discussed the evidence of the respondent as well as his witness Muhammad Ashraf Ali, both of them had deposed that the appellant was not issuing any rent receipts to any of the three tenants occupying the building owned by the appellant. The learned R. C. Ignored the evidence of the witness on the mere ground that he had not mentioned in his deposition that rent from January. 1977 to July, 1977 was paid by the respondent and that the respondent has not produced any receipt in support of his contention that he had paid the rent to the appellant from January to July, 1977. It is obvious that the learned Rent Controller failed to appreciate that according to the respondent no receipts were issued by the appellant and that this statement o the respondent as well. As witness Ashraf Ali was not challenged in thei cross-examination. On the other band even if it be assumed that the appellant used to issue rent receipts then the non-production of the counte foils as rightly observed by the learned 1st Appellate Court would raise presumption against the appellant.
11. Having compared the reasonings of the two Courts below I am of the opinion that the findings of facts given by the Ist Appellate Cour are supported by cogent reasons and are based on the material on record. These findings of the learned Ist Appellate Court, in the circumstances, cannot be challenged in the second appeal as the appellant has not been able to point out any impropriety or illegality so as to call for any interference in the findings of facts given by the learned 1st Appellate Court. Reference may here be made to the case of Abdul Majid v. Khalil Ahmed. In the said case though there was conflict of findings between the two Courts below the Honourable Judge of the Federal Court held :- ".........a 4.........a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others, where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri and Wall Muhammad v. Muhammad Bakhsh, which lay down this proposition in clear and unmistakable terms."
12. The upshot of the above discussion is that no interference is called for in the findings of the facts given by the 1st Appellate Court. The appeal is accordingly dismissed with no order as to costs. PLD 1955 P C 381 1