1. ABDUL KADIR SHAIKH, J.---This is a petition for leave to appeal from the judgment of a learned Judge of Baluchistan High Court, dated 12-8-1987 whereby petitioner's appeal was dismissed and the order of the Rent Controller rejecting petitioner's application for respondent's eviction was upheld.
2. Petitioner filed the eviction application on the ground that respondent was a defaulter in payment of rent from January to November, 1984 on the agreed rate of Rs:60 per month. In reply, respondent pleaded that petitioner had already received advance rent up to June 1985 but no receipt was issued by him. He further pleaded that he was in occupation of the premises since 1965 and has been regularly making payment of the rent months in advance and during' this long span of time he had not committed any default whatsoever in making payment of the rent, and that petitioner had filed the ejectment application for mala fide reason in that he actually wanted to sell the property after evicting him from the premises.
3. After recording evidence produced by the parties learned Rent Controller rejected the application on the ground that it was proved from the previous rent receipts that petitioner was not receiving the rent regularly but was collecting it in lump sum. This is what he observed in this regard: "The perusal of rent receipts shows that the rent was never received since, 1965 in time either before/advance or later on. Whether it was the fault of landlord or tenant. It is also possible that he received collective rent for 8/9 months, and thereafter issued receipts. It appears to me rather incredible that the tenant who was admittedly paying rent regularly since, 1965, without any default, suddenly allowed himself to go into arrears for eleven months, thus inviting an application for his eviction from his landlord. It is not unusual for old tenants, like those placed in position of the respondent, not to insist on the execution of receipts, thus avoiding to express openly a lack of faith in the honesty of the purpose of landlord. In the circumstances of the case the fact that the rent of the alleged period was paid in advance cannot be doubted. The second point for consideration is that the default had been committed from January, 1984 the applicant remained absolutely silent for about eleven months. No plausible explanation has been given by the applicant for this delay.
4. Normally no landlord would tolerate his tenant continuing in possession of the rented premises without paying rent for such a long period. On the other hand the respondents' case is that he had paid advance rent uptill June, 1985, but the receipt was never issued. However, the respondent has been depositing the rent in the Court from the month of February, 1985 very regularly, the arrears have also been deposited on record and from the entire circumstances of this case, it is not possible to give a conclusive, finding safely, one way or the other. I exercise my discretion and resolve the doubt in favour of respondent."
5. Being aggrieved by the order passed by the learned Rent Controller, petitioner filed an appeal in Baluchistan High Court but it was dismissed as stated earlier and it is in these circumstances that petitioner filed this petition for leave to appeal from the judgment of the High Court.
6. Mr. Iftikhar Muhammad, learned counsel appearing for the petitioner in support of this petition for leave to appeal submits that the view taken by the Courts below is in direct conflict of the rule laid down by this Court in Abdul Rashid v. Saleh Muhammad 1980 SCM R 506 and Tar Muhammad & Co. v. Taher Ali 1981 SCMR 93 wherein it has been held that mere fact that the rent was being accepted by the landlord irregularly cannot absolve the tenant of his default entailing his eviction under the provisions of the rent laws. In these behalf, learned counsel further submitted that the Courts below have failed to appreciate that no rent receipt was produced by the respondent with regard to alleged payment of rent from January to November, 1984. And in the circumstances it could not possibly be held that he was not defaulter in payment of rent.
7. The submissions raised in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Security Rs. 2,000.
8. Appeal to be heard on the present record but it is open to the parties to file additional documents, if any.