1. ' The appellant is the landlord of Godown No, 17 on Plot No, RY-16-1 Railway Quarter of which the respondent is a tenant on monthly rent of Rs,
180. The appellant filed ejectment case against the respondent on the ground that it had defaulted in the payment of rent for the months of November, 1972 to March, 1973, and further that it has also damaged the Godown. The respondent denied these allegations. The Controller by his order, dated 9-8-1974 allowed the application. The respondent filed an appeal against the said order, which was allowed by the impugned order, dated 19-10-1977 and the order of the learned Controller was set aside.
2. ' Before the Controller there were several issues of law and fact but in this appeal the parties have restricted their argument only on the issue whether the respondent has committed default in payment of rent. There is a conflict of decision on this issue between the order of the Controller and the order passed by the First Appellate Court. The dispute relates to the payment of rent from November, 1972, till March, 1973, and the ejectment application was filed on 4-4-1973. The respondent has pleaded that it was a practice between the parties that the Rent Collector used to regularly come and collect monthly rent and as he did not come to collect the rent for the month of November, 1972, the respondent sent its representative for payment of the rent for December, 1972, but the appellant refused to accept the same and told him that he would send the Rent Collector. Thereafter, in April, 1973, the respondent sent a cheque, dated 3-4-1973 which was returned by the appellant as he had already filed the ejectment case. This plea was denied by the appellant. From this plea raised by the respondent it is clear that the dispute relates to payment of rent from November, 1972 to March, 1973, and, therefore, the main question for decision, is, whether the respondent has defaulted. After examining the evidence, the Controller rejected the plea of the respondent. However, it was set aside by the First Appellate Court. The relevant observation of the impugned order is as follows:- "It is an admitted fact that at the time of filing the rent case, the appellant was in arrears of rent for 4 months viz. November, 1972 to March, 1973. The respondent has to prove that the appellant was a willful defaulter. It is a fact that the appellant is a tenant of this godown for last so many years. One document has been produced by the appellant that the rent was paid in lump sum and this amount was Rs, 1,080. The respondent has to prove that the appellant is a wilful defaulter. The case of the appellant is that the collector of the respondent used to come and collect the rent and this fact has been admitted by both the parties. The witness of the appellant viz. The Manager and Clerk have stated that the Rent Collector of the respondent did not come to collect the rent hence Mr. Tayyab, Clerk of the respondent was sent but the rent was not accepted. The appellant thereafter sent rent through a Cheque Exh. 15 which has not been accepted. The appellant has thereafter immediately filed Miscellaneous Application in which the rent has been deposited in Court. This shows that the appellant was all the time ready to pay the rent. In case the appellants were not paying the rent deliberately, then they could not have sent the rent by cheque or by depositing in Court. The oral as well as documentary evidence produced by the appellant shows that the appellant was ready to pay the rent, but the respondent was not accepting the rent and the documentary evidence has also come on record that some time the rent was being paid in lump sum. It appears that the respondent has taken the advantage of this practice and has filed this application that the appellant is defaulter. The evidence and circumstances of this case would show that the appellant all the times was ready to pay the rent and when the respondent refused to accept the rent hence the rent was sent through cheque which was not accepted by the respondent. The rent was, therefore, being deposit-' in Court in Miscellaneous Rent Case as stated above. It appears that the appellant is not a wilful defaulter and the order passed by the learned Judge is not proper and legal."
3. ' Mr. S. A. Majid the learned counsel for the appellant has contended that the First Appellate Court has misread the evidence as the respondent has failed to establish that it has paid the rent and was not a wilful default. In these premises it is necessary to examine the evidence of the parties.
4. From the evidence of the respondent it is clear that as the appellant did not send his Rent Collector to the appellant the respondent sent his representative to pay the rent, but he did not accept it and told him that he would send his Rent Collector to collect the rent. Thereafter, from the evidence of Tayab the representative of the respondent it seems that no steps were taken by the respondent upto the end of March, 1973. The cheque was sent on 3-4-1973 and there does not seem to be any valid explanation for the delay. On its own showing during this period of four months the respondent did not care to take any step to pay the rent to the appellant. The respondent's plea that the rent was tendered through its representative, if at all accepted relates to the rent due and payable for the month of November, 1972, because, the representative was sent in December, 1972.
5. Thereafter, according to the respondent's own evidence he tendered rent on 3-4-1972. It was open to the respondent to have either sent it by money order or deposited it in Court immediately. Even in cases where rent is refused by the landlord it is the duty of the tenant to pay the rent on each successive month whenever if falls due. This obligation on the tenant besides being contractual is statutory as well.
6. ' The other contention of the respondent was that it was a practice between the parties that Rent Collector used to come and collect the rent and as he failed to come he did not pay the rent. It has also been stated that the appellant had from long wanted the respondent to vacate the premises.
7. The respondent has also produced a receipt Exh. 14 from which it seems that the rent was being collected immediately on the expiry of the month. If the Rent Collector of the appellant did not come to collect the rent and as according to the respondent, the appellant had an eye on the respondent's premises and wanted to get it vacated 8 it was necessary for the respondent to be more vigilant rather to become indolent and inactive for months together. Mr. Majid, the learned counsel for the appellant has referred to Muhammad Alimullah v. Ziaul Islam, where it was observed that "a tenant is required to pay the rent to the landlord, and the said Ordinance does not impose any obligation on the landlord to find his tenant and collect rent from him." Therefore, on respondents' own showing this plea can hardly justify the non-payment of rent. This fact cannot compel the Controller to exercise his discretion in favour of respondent and refuse to grant ejectment.
8. ' It seems that the First Appellate Court was influenced by the fact that lump sum of Rs, 1,080 was paid and that the money had been deposited in Court in Miscellaneous Application No, 954 of 1973.
9. This amount was deposited on 17-4-1974. It was not deposited immediately when in December, according to the respondent, the appellant avoided to accept the rent. This deposit was made after the default had been committed, and therefore, such deposit cannot wipe off the default. ##TER##The learned First Appellate Court has held that the respondent was all time ready to pay the rent, but there is a clear misreading of evidence as the events that have happened after March, 1973, namely the despatch of cheque and posit of rent in Court, can hardly establish that the respondent had tendered the rent and had made genuine attempts to pay it. As these actions were taken after the default had been committed they cannot help the respondent. The learned First Appellat Court has relied on the fact that as the rent was being paid in lump sum the appellant taking advantage of this practice has filed ejectment application. The evidence on record can hardly justify this finding. In fact no such practice has been established and even if the practice would have been established it cannot be a substitute for any statutory obligation, where a tenant has to pay rent every month. I am of the clear view that the learned First Appellate Court has given his finding which cannot be supported by the evidence on record.
10. ' Mr. Mustafa Lakhani the learned counsel for the respondent realising these difficulties raised a technical obligation that in Second Appeal, the finding of fact by an appellate Court, however, erroneous it may be, cannot be disturbed. Reliance has placed on Pir Bux v. Almas Begum. This observation was made on the basis of Firm Kirpa Ram v. B. Chint Ram. With due respect the observation made in Pir Bux's case is too wide to be accepted. Further Kirpa Ram's case does not support this observation. In that case AIR 1947 Lah. 301; the concurrent finding of fact was set aside by a learned Single Judge and in these circumstances the Letters Patent Bench observed that the Senior Civil Judge (who had heard appeal against the order of the Trial .Court)" after a consideration of the entire evidence on behalf of the plaintiff came to the conclusion that the plaintiff had not established that he has reasonable and bona fide need for the shops in dispute for his own purpose. This finding, however, erroneous it may be, cannot be challenged in Second Appeal."
11. ' Mr. Lakhani referred to G. M. E.' Patil v. Tajmul Hussain, where was observed that "the finding of fact of the Appellate Court cannot, therefore, be reverted in. Second Rent Appeal unless the Appellate Court has misconstrued the evidence." In this regard reference can be made to Mahboob Ellahi v.
12. Muhammad Zaman, where the High Court had set aside the concurrent finding of the appellate Court, while refusing to grant leave, it was observed that "It is true that originarily High Court is not competent to interfere with the concurrent finding of fact by the learned Courts below, but in the present case, there is sufficient material to show that the Courts below had misread the evidence on record and the First Appellate Court had based its conclusion on extraneous consideration which are not borne out or established by evidence on record. Further, reference can be made to Amir Ali v. Alima Ahmed, where the 1st Appellate Court had set aside the order of the Controller, it was observed. "in my view as in the instant case the learned 1st Appellate Court was not justified in1 2 3 4 5 6 interfering with the discretion exercised by the learned Rent Controllerr, this Court is competent in the above second appeal to ractify the error committee by the 1st Appellate Court".
13. ' From a perusal of the aforestated authorities it seems well-settled that a finding of fact is liable to be set aside when it is based on no evidence or on misreading of evidence or on extraneous considerations which are not established by evidence on record or on evidence which is not legal, or on mere surmises and conjectures. Further, as held in Ghulam Nabi v. An Muhammad, where the finding of fact is not the result of the correct appreciation of the material on record. The High Court can disagree with such findings."
14. As discussed the finding pf the learned 1st Appellate Court is based on misreading and misappreciation of evidence on record and further its finding cannot be supported by the evidence.
15. ' I, therefore, set aside the order of the 1st Appellate Court and restore the order of the Controller the appeal is allowed. PLD 1973 Kar. 56 PLD 1969 Pesh. 49 AIR 1947 Lah. 301 1980 CLC 443 1983 SCMR 37 PLD 1981 Kar. 150 PLD 1950 B J 90