1. MUHAMMAD AFZAL ZULLAH, J.--This appeal through leave of this Court is directed against judgment, dated 29th November, 1981 of the Baluchistan High Court; whereby the order of eviction of the respondent (tenant) inter alia on ground of default in payment of rent for over a year, on appeal, was set aside. There was another ground for eviction namely nuisance but it is not now relevant as leave to appeal was not granted in this behalf.
2. The appellant (landlord) sought eviction of the respondent (tenant) from a residential unit by an application, dated 3-3-1980 both on ground of default in payment of rent from January, 1979 to February, 1980 and also on the allegation that he had caused nuisance for the users of the Mosque, to which this residential unit was attached, presumably for renting out purposes. The appellant used to collect the rent from the respondent and the amount was credited to the Mosque's account. The respondent paid the rent regularly upto the end of 1978. He, however, committed default from January, 1979 for over a year.
3. With regard to the allegation of default in payment of rent the respondent's plea before the learned Rent Controller was that he offered the advance rent for one year to the appellant in January, 1979 but it was not received on the pretext that the same would be collected when funds were needed for the repairs of the Mosque and this is how a year passed. Ultimately he was compelled to remit the rent through an intermediary namely Jan Muhammad as also through money order, but, the appellant refused to receive it as the same was remitted after the expiry of about a year and that to on filing of the application for the respondent's eviction.
4. The learned Rent Controller had after the scrutiny of the evidence led from both sides on the main question whether the respondent had offered the rent to the appellant as alleged by him and that the same was not received on the afore noted pretext, came to the conclusion that the respondent had failed to substantiate this plea and that the burden of proof of payment of rent on the being on the respondent, he was liable to be evicted. In reaching this finding the learned Rent Controller, amongst others, also took into consideration the deposition of Haji Muhammad Usman A.W. 2 who stated that even after a year when the appellant demanded the rent from the respondent he had refused to pay the same. Not only this but he had also refused to pay the electric bill; as also the circumstance, that the respondent did not offer the rent through money order nor was it deposited in Court which indicated that the plea regarding the offer of advance rent and refusal, was not genuine. The evidence of the respondent regarding the offer for payment of advance rent was also critically examined by the learned Rent Controller with a finding that his witnesses had failed to depose as to the period for which the alleged offer of rent was made nor whether it was advance rent or the arrears thereof. It was further noticed by the learned Rent Controller that there was a written rent note which stipulated that the monthly rent would have to be paid regularly to the landlord and that a regular receipt had to be obtained in this behalf. It was in this context that the learned Rent Controller had remarked that the respondent could not discharge "his liability by mere offering the rent to the applicant after a long the of its having become due". He should have "sent the rent in the by money order or should have deposited the same in Court if it was in fact refused by the landlord". Accordingly the issue as to whether the respondent had failed to pay the rent on the for over a year and thus had committed the default in payment of rent, was answered in the affirmative. It was positively found that the respondent failed to discharge his responsibility by "tendering the rent".
5. The judgment of the Rent Controller was upset by the High Court on the grounds: Firstly, that the learned Rent Controller "himself was not clear whether default has taken place or not"; Secondly, that the evidence led by both the sides on the issue of default could not lead the Court to a positive conclusion therefore the eviction application was liable to be dismissed; Thirdly, that the respondent had offered advance rent and that there was a repeated refusal of the appellant to collect the same; and lastly, that the respondent had remitted the rent by money order and the same was also refused. Accordingly it was held that the learned Rent Controller should have dismissed the application for eviction in exercise of his discretion in favour of the respondent-- tenant.
6. With respect, we do not agree with the observations in the impugned judgment that the learned Rent Controller was not himself clear whether a default of rent had taken place or not. We have referred to not only the conclusion but also the reasoning of the learned Rent Controller. He had not left any doubt with regard to his satisfaction that respondent had committed a default in payment of rent for over a year.
7. Regarding the second reason in the impugned judgment, again with profound respect it has to be pointed out that not only the statement made by A.W. 2, namely, Hap Muhammad Usam regarding the conduct of respondent even after a year of default, was not taken into account by the High Court and was ignored altogether but also the defects pointed out by the learned Rent Controller in the respondent's evidence were ignored by not reading it correctly. It was also not noticed that the respondent if he had made any offer in the beginning of 1979, as is alleged, for paying the rent for a year in advance, he would not have waited for 13 months for sending the money order after the filing of the eviction application against him. This circumstance vital as it was to the case of the appellant, emerges from the respondent's own plea. Failure to notice it as also the fact that, according to the rent note, the tenant was required to tender monthly rent on the and obtain receipt for the same, has resulted in failure of justice. They go strongly against him. Same would apply to the reason noted above. The refusal of the appellant to receive the rent sent by money order after more than a year of default was likely to prejudice the interest of the Mosque's fund particularly when it was being tendered after the filing of the eviction application. This justification on the part of the appellant had not been taken into account in the impugned judgment.
8. The major factor, which influenced the High Court in observing that the discretion should have been exercised in favour of the respondent tenant,\ was based on the main so-called consideration that the learned Rent Controller was himself not certain about the default in payment of rent. The other points were only mentioned in connection with this finding. In the context of the grounds which prevailed with the High Court it was observed that the discretion should have been used in favour of the tenant. No independent reason has been mentioned. For example if it would have been noticed, in this behalf, that the respondent had caused a considerable loss of income for over a year to a Mosque which would be in need of funds for current expenditure, as an independent point in the context of exercise of discretion, the result might have been different.
9. As the grounds, mentioned in the impugned judgment for exercise of discretion in favour of the tenant did not in our view exit, the resultant view expressed on point of discretion, which is based on those grounds, cannot be upheld. This appeal accordingly is allowed. There shall be no order as to costs. The impugned judgment is set aside and the order of the Controller dated 31-3-1981 is restored.