' This second appeal under section 15 (4) of the Sind Rent Restrictions Ordinance, 1959 challenges the concurrent decisions of the Rent Controller, Karachi in Case No, 10 of 1975 dated 30-7-1977 and of the first appellate Court namely the IIIrd. Additional District Judge, Karachi in Rent Appeal No, 261 of 1977 dated 21-2-1978 whereby the ejectment application moved by the respondent was allowed on the ground that the appellant had committed default in the payment of rent.
' The facts of the case briefly stated are as under :-
1. Respondent Shaikh Fazlur Rehman is the Landlord owner of shop No, 1, Sister's Lodge, No, 3 Central Commercial Area, Bahadurabad, Karachi and had rented out the aforesaid shop to the appellant on monthly rent of Rs, 150 exclusive of electricity charges. The appellant according to the respondent was a persistent defaulter in the payment of monthly rent and was in the habit of withholding payment of rent for months together. At least two times earlier, the respondent recovered accumulated rent from the appellant by distress warrants through the Court. On 2-1- 1975, the respondent filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of the VIIIth. Civil Judge and Rent Controller, Karachi for ejectment of the appellant on the ground that he had defaulted in the payment of rent for the period from 1st August, 1974 to December, 1974.
2. The appellant filed written statement on 12-4-1975 denying that he was persistent defaulter or that he was in the habit of withholding the payment of rent for months. It was his case that he had offered rent for the month of August, 1914 and thereafter from month to month but the respondent had insisted that he should pay accumulated rent and had collected the rent for the period from 1st August, 1974 to 30th November, 1974 in the month of December, 1974. He had promised to give receipt but did not do so. It was further his plea that the arrears of rent in respect of which distress warrants had been issued by the Court were accumulated as the respondent was in the habit of collecting accumulated rent. According to him he had asked for receipts for the payment of rent for the period from Ist. August, 1974 to 30th November, 1974 but the respondent had avoided to give him the same.
3. On the above pleadings of the parties, the Rent Controller framed the only issue as to whether the appellant had committed wilful default and if so for what period. He passed the tentative rent order dated 14-5-1976, tentatively holding that the appellant was in arrears from 1st August, 1974 to 30th April, 1976 for 21 months and directing him to deposit the amount of Rs, 3,150 by 31st July, 1976.
He further directed the appellant to deposit rent of May, 1976 before 15th of June, 1976 and also to deposit future rent before 15th of each month The respondent in his deposition supported the assertion in the application for ejectment, that the appellant was not paying rent regularly and the respondent had twice recovered arrears of rent through distress warrant. He further stated that he had asked the appellant to pay rent every month and further that as and when the appellant paid rent he used to issue receipts to him. He also reiterated his assertion that the rent for: the period stated by him had not been paid by the appellant. The respondent also produced counterfoils of the receipts in support of his contention about the irregular payment of rent and also to show that no receipts were issued for the period of default as no rent had been paid by the appellant. He totally denied the averment of the appellant that he was not accepting monthly rent and, therefore, there was accumulation of arrears of rent.
4. On the other hand, the appellant gave evidence himself and also examined one Arshad Ali to say that the rent for August, 1974 to November, 1974 had been paid to Naseer Khan the rent Collector of the respondent. For good reasons given by the Rent Controller the evidence of Arshad Ali was not accepted as reliable. The learned Rent Controller also observed that Nasir Khan had not been examined by the appellant to prove payment and the appellant had not produced any receipts for the payment for the period of default. It was also abserved that the appellant had admitted in his cross-examination that Nasir Khan used to issue pacca receipt whenever rent was paid to him but no such receipts were produced by the appellant. With regard to witness Arshad Ali, the Rent Controller observed that from the very evidence of the witness, it was apparent that he was chance witness. The witness was not able to give the name of the building where the appellant did his business and, therefore, the Rent Controller rightly observed that it was strange as to how the witness could remember or know name of the Rent Collector. The application of the respondent for ejectment of the appellant was, therefore, allowed by order of the Rent Controller dated 30th July, 1977 and the appellant was directed to give vacant possession within one month of the order.
5. The appellant filed the first appeal in the Court of District Judge, Karachi which was incidentally heard and decided by the IIIrd Additional District Judge, Karachi. It may here be observed that at the stage of appeal photostat copies of rent receipts were filed alongwith memo. Of appeal but in the impugned judgment the learned Ist Appellate Court made it clear that he did not take into consideration the aforesaid photostat copies as no application for permission to adduce additional evidence at the appeal stage was made. It was also observed by the learned 1st Appellate Court that neither the original receipts nor photostat copies were produced at the time of cross-examination of the appellant in the trial Court. There was obviously no case made out for considering secondary evidence of the photostat copies and for the first time it would appear that it was argued that on the reverse of the rent receipts there were terms and conditions of the contract under which only a penalty was to be imposed for late payment of rent. The counterfoils of receipts produced in original do not have any such printed matter on the reverse and for the reasons already given no such evidence could be admitted or accepted ; nor could any such statement of terms and conditions which obviously could not be considered to be an agreement of lease have any evidenciary value.
6. The first Appellate Court also considered the evidence on record and came to the same finding that the appellant had committed default A in the payment of rent, so' that there are concurrent findings of fact in respect of the ground of default by the trial Court and the first Appellate Court. In Madan Gopal and 4 others v. Moran Bepari and 3 others (1), a decision of the Supreme Court, the question whether the High Court could in second appeal disturb the concurrent findings of the lower Courts and the circumstances under which such interference is permitted was discussed. It was observed as under :- "The legal position does not admit of any doubt that concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits."
(1) PL D 1969 SC 617
7. In view of the principle enunciated in the above-quoted decision of the Supreme Court, it is only if an error or defect of substantial character pertaining to procedure or an error or defect in the decision of the case upon its merits is pointed out that it would be open to this Court to interfere with the concurrent decision. In the instant case no such defect or error has been pointed out. It may here be stated by the evidence which was rightly not admitted at the appellate stage, it was sought to prove a practice of payment of lump sum rent after period of months. It may be further observed that it was also the case of the respondent that the appellant was persistent defaulter who made irregular payments and in that respect he had produced admissible evidence by way of counterfoils of receipts which are on record. However, the very fact that he had to apply for distress warrants to collect rent previously from his tenant and the further fact that the receipts available with him show also irregular payment, are an indication that his assertion about the appellant being bad pay master and irregular in the payment of rent is horne out. It cannot, therefore, be permitted to be argued that the landlord had agreed to the practice of Pimp sum or irregular payment of rent. In Abdul Rashid v. Saleh Muhammad (1), a decision of the Supreme Court, in the plea of practice of payment of rent in lump sum was considered and it was observed as under : "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law "on the subject namely the West Pakistan Urban Rent Restriction Ordinance.
Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whittling down the requirement of law that the rent has to be paid by the tenant by the 15th of every month."
' For reasons already given there could be no question of considering the landlord to have acquiesced in any practice of lump sum payment of rent which is besides contrary to the law. The respondent by his assertion in the application for ejectment coupled with his deposition had fully discharged the burden of proof that there had been default in the payment of rent and the appellant failed to rebut the aforesaid evidence or to prove that he had in fact paid the rent. In view of the fact that it has been provided that receipts used to be issued to tenant by the respondent, the failure on the part of the tenant to produce the receipts for the period of default and also the failure of appellant to adduce any credible or reliable evidence on the point, the concurrent findings of the Courts below are considered to be legal and proper. The appeal is accordingly dismissed however, with no order as to costs. The appellant is hereby directed to hand over vacant possession of the shop to the respondent within one month of the date of this decision.