' AJMAL MIAN, J. This is an appeal with the leave of this Court against the judgment dated 21-5-1992 paced by a learned Single Judge of the High Court of Sindh in F.RA. No,100 of 1989 filed by the respondents against the order of dismissal of their Rent Case No,1555 of 1989, which was filed on the grounds of default and unauthorised additions and alterations and thereby impairing the value and utility of the premises.
2. The above rent case was resisted by the appellant inasmuch as a written statement was filed, in which it was denied that there was any default or that there was any unauthorised additions and alterations, which impaired the value and utility of the suit premises.
3. The learned Rent Controller, on the basis of pleadings of the parties, framed the following three Issues:-- "(1) Whether the opponent committed default as alleged?
(2) Whether the opponent has made addition and alteration in the premises and have thereby impaired the value and utility of the premises?
(3) What should the order be?"
' The learned Rent Controller, after recording evidence and hearing the parties, decided all the above Issues against the respondents. On the question of default, it was observed by him that the case of the appellant was that she paid Ali rent for May, 1984, but the respondents issued the receipt for April, 1984, and that in the first week of June, 1984, the appellant tendered the rent to the respondents but they refused to receive the same and, therefore, the appellant sent the rent through money order dated 12-6-1984. Upon its refusal, the appellant started depositing the rent in Miscellaneous Rent Case No,2233 of 1984. After narrating the above facts, he held that the respondents failed to prove the above ground. On the second issue, he held that the respondents failed to prove the same.
4. Against the above order of the learned Rent Controller, the respondents filed above F.RA. The learned Judge in chambers maintained the finding of the learned Rent Controller on above Issue No,2 but reversed the finding on the question of default for the following reasons:-- "6. As against this, the contention of the learned counsel for the respondent is that the tenancy in the present case started from the month of May, 1984, and therefore, the first receipt of payment of rent issued on 4-5-1984 should be treated to be the receipt for the month of May, 1984. I have examined the said receipt as well as the money order coupon produced in evidence by the respondent/tenant as Annexures A & C with her affidavit-in-evidence. Annexure A is the receipt for rent issued on 3-5-1984 which specifically mentions that this receipt is for the rent for the month of April, 1984. The respondent when confronted in cross-examination with this receipt admitted that receipt bears her signature also. In these circumstances, the burden lies very heavily upon the tenant to show that this receipt in fact is for the month of May and not for the month of April, 1984 as claimed by her. The learned counsel for the respondent has admitted that the case of the respondent is that tenancy started from the month of May, 1984, and, therefore, it should be presumed that this receipt is for May and not for April, 1984. I am afraid I cannot subscribe to the said contention of the learned counsel for the reasons that there is no substantial evidence on the record to support the said contention except for only word of mouth of the respondent."
' In view of the above finding, the above F.RA. Was allowed, the order of the learned Rent Controller on the question of default was set aside and the respondents' ejectment application was allowed on the above ground.
5. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider, whether the learned Judge in chambers was justified in reversing the finding of the learned Rent Controller on the question of default keeping in view that the appellant filed miscellaneous rent case in April, 1984, i.e, within three months from the date of commencement of the tenancy, in which he had averred that she had paid the rent for the month of May, 1984, and had remitted money order for the months of June and July, 1984, and that there seemed to be a plausible reason for the appellant to have made the above averment as the miscellaneous rent case was filed when the grace period of 60 days had not expired for the payment of rent for the month of May, 1984.
6. We have heard Mr. Rasheed A. Razvi, learned ASC for the appellant and Mr. Rehmat Elahi, learned ASC for the respondents. It seems to be an admitted position that the first rent receipt issued by the respondents to the appellant bears No,4123 dated 3-5-1984 (at page 49 of the paper book), which shows the payment of rent and water charges for the month of April, 1984. The above receipt has been signed by the appellant. According to the appellant, this receipt is in fact for the month of May, 1984, and not for April, 1984, as according to her, the tenancy had commenced in May, 1984, whereas the case of the respondents is that the above rent receipt was for the month of April, 1984, and that the plea that it was for the month of May, 1984, raised by the appellant, is a belated plea not founded on any reliable evidence.
7. We have further noticed that though the learned Rent Controller has referred to the filing of above miscellaneous rent case by the appellant, but the copy of the memo. Was not brought on record either before the learned Rent Controller or before the learned Judge in chambers. First time the same was filed by the appellant alongwith his above petition for leave to appeal. In para. 2 of the above miscellaneous rent case, the appellant had averred that she had paid the rent to the respondents up to May, 1984, and thereafter remitted the rent for the months of June and July, 1984, through money order, which was refused. However, in the prayer, she had prayed that she be allowed to deposit the rent for the month of May, 1984, at the rate of Rs,70 per month and further to allow her to keep on depositing at the above rate up to tenth of each English calendar month. The above para. Reads as follows:-- "WHEREFORE it is prayed that this Hon'ble Court be pleased to allow the applicant to deposit rent for the month of May,1984 at the rate of Rs,70 per month and further allow her to keep on depositing rent at the same rate upon 10th of each English calendar month."
8. According to Mr. Razvi, there would be no default as per above application, the appellant had deposited rent for the month of May, 1984, within the grace period allowed by the statute. Whereas, Mr. Rehmat Elahi, learned counsel for the respondents' submission was that the above document was not filed by the appellant before the two Courts below and, therefore, he is not in a position to accept the correctness of the contents thereof.
9. In our view, it would be just and proper to remand the case to the learned Rent Controller with the direction to decide the question of default afresh after recording further evidence of the parties particularly with reference to the question as to when the appellant's tenancy had commenced and whether the appellant had deposited the rent for the month of May, 1984, through the above miscellaneous rent case or not, and whether she continued to deposit the rent in time up to the filing of ejectment case by the respondents in 1986. We, therefore, allow the above appeal and set aside the judgment under appeal and remand the case to the learned Rent Controller in the above terms. However, there will be no order as to costs.