1. ' ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 26-8-1987 by which a Second Appeal filed by respondent-landlord was allowed and in result the order of the Rent Controller and the appellate judgment of Additional District Judge, Karachi, were set aside, and petitioner-tenant was directed to handover vacant possession of the demised premises to respondent.
2. ' The proceedings in the case arose out of an ejectment application filed by respondent in March 1976 complaining that petitioner was a defaulter in payment of rent at Rs, 150 per month from April 1975 onwards. Petitioner's plea in defence was that the rent from April to September 1975 was adjusted at respondent's instance against the payment of municipal taxes amounting to Rs, 527.50 made on 24-6-1975 and Rs,532.50 on 5-3-1976, and rent from October to December 1975 was paid in cash, and for the subsequent months it was remitted by money orders. Against this defence plea, whereas respondent admitted remittance of rent by money orders in the year 1976, he denied that he had authorised the petitioner to pay any taxes on his behalf.
3. ' Learned Rent Controller after recording evidence produced by the parties held that petitioner was not a defaulter and dismissed the application by the order dated 21-4-1979. Respondent's appeal against the order of Rent Controller was dismissed but his second appeal in the High Court succeeded as the learned Judge in the High Court took the contrary view holding that the two Courts below had committed error in evaluation of the evidence. In this regard, learned Judge noticed as follows: "Adjustment of KMC taxes against rent for the months of March to September, 1975 has been claimed on the basis of a demand notice dated 23-5-1975 and reliance has been placed on an endorsement on the notice alleged to have been made by the appellant that the taxes may be paid and amount be adjusted against rent. This document was filed by the respondent in his evidence but the appellant was not confronted with this document, particularly the endorsement thereon. Of course, the learned counsel for the respondent has argued that no objection was taken to the production of this document and objection against its evidentiary value cannot be taken at the subsequent stage. Be that as it may, the question is whether the endorsement on the demand notice was actually made by the appellant. Provisions of section 14 of the Urban Immovable Property Act, 1958 could be pressed into aid, if the appellant/landlord had refused to make payment of the KMC demands and the respondent/tenant was called upon to pay the taxes and claim adjustment against rent. There is no evidence to that effect. In the circumstances, the payment of KMC taxes did not absolve the respondent of his liability to have paid the rent to the appellant. The other period of default in payment of rent is from October to December, 1975. The appellant has stated in evidence that rent for this period was not paid to him. The respondent's contention that he had paid the rent to the appellant in cash has not been substantiated. Mere acceptance by the wife of the appellant rent for the month of January, .1976 remitted by money order did not confirm payment of rent for the preceding period. Rent for the period from February, 1976 onwards was, of course, remitted by money orders which were not accepted and those remittances did not amount to valid tender of rent. The result is that there was clear default in payment of rent for the months of October to December, 1975, and non-payment of rent for the months of April to September, 1975 on the excuse of payment of KMC taxes also amounted to default in payment of rent. Thus, clear case was made out for default in payment of rent from April to December, 1975 and the view adopted by the Courts below is not sustainable."
4. ' Mr. Z.U. Ahmad, learned counsel appearing in support of the petition for leave to appeal submitted that the learned Judge in the High Court has erred in interfering with the concurrent findings of the two Courts below on a factual controversy in a Second Appeal, whereunder the powers of the High Court are clearly confined to correction of the decision on a point of law, failure to determine some material issue of law or a substantial error or defect in the procedure adopted by the Court below resulting in error or defect in the decision of the case.
5. After having gone .Through the record of the case we find that on the facts proved in evidence no exception in law can be taken against the impugned judgment of the learned Judge in the High Court exercising powers under Section 100 of the Code. He very rightly held that the provisions of section 14 of the Urban Immovable Property Act 1958 were not attracted to the facts of the case, and that the payment of rent for the months from October to December, 1975 was also not proved.
6. Petitioner was therefore rightly held as a defaulter in payment of rent from April to December, 1975.
7. On these conclusions, learned Judge in the High Court was fully competent to interfere with the concurrent findings reached by the two Courts below. It may be mentioned that the learned Judge was himself conscious of the limited scope of interference in proceedings under section 100 of the Code and rightly rejected this plea raised on behalf of the petitioner on the grounds stated by him.
8. ' There is therefore no merit in this petition, and it is dismissed.