1. MUHAMMAD AFZAL ZULLAH, CJ. ---Through these two petitions the tenants under the same landlord have sought leave to appeal; against the dismissal by the High Court of their rent appeals; whereby orders of eviction passed against them on the ground of default in payment of rent were affirmed.
2. One peculiar feature in these cases was that the tenants' side asserted full payment of the entire rent and denied default but had not been able to substantiate it before the Rent Controller. Papers in that behalf were produced in the High Court with a view to establish the plea of denial on the question of default. The learned judge in the High Court treated the failure to produce the relevant evidence at proper stage as exceptionable. Nevertheless it appears that the petitioners had succeeded in creating at least a moral case if not legal as assumed by the High Court for the examination of the material produced in the High Court. It was also observed in the impugned judgment that "the documents produced under section 21(3) alongwith applications have also been considered while disposing of these appeals". If it was only this infirmity--a somewhat inconsistent approach in the impugned judgment, it might not have been by itself enough for grant of leave to appeal. But, as the learned counsel explained, the material placed before the learned Judge in the High Court also established the payment of the rent for default period including through money orders and deposits in duly instituted proceedings, payment was, prima facie, established. When asked to show whether there was any non-payment/default thus left unexplained, learned counsel for the caveator Mr. Badrudduja, who had also appeared in the High Court, initially took a strong stand that the entire period was un-explained, but subsequently he failed to substantiate this plea. He was also confronted with the position taken by him in the High Court; namely, that "during the course of arguments it was pointed out by Mr. Badrudduja that the appellants deposited rent in Court in time". He, however, ultimately argued that even if the entire rent had been deposited, he had not conceded in the High Court that it was deposited in time.
3. After hearing both the learned counsel, at some length, we have formed, prima facie, an impression that there was conscious effort on petitioners' side to part with the requisite amount so as to avoid the consequence of eviction can account of default.
4. These and related questions as also those raised in those petitions require examination. Leave to appeal is granted in both these petitions.
5. Security Rs.5,000 in each case.
6. The appeals shall be prepared on present record with direction to the parties to file all those documents which shall be necessary for disposal thereof.
7. Stay to continue.