' In this second appeal order dated 31-5-1992 passed by the learned Additional District Judge, Lahore through which the respondent's appeal against order dated 19-10-1991 passed by the Rent Controller was accepted has been challenged.
2. The respondent filed an ejectment petition seeking eviction of the appellant from the shop in dispute on the ground of subletting and default in payment of rent from July 1987 to December 1987. The ejectment petition was filed in November, 1987. The appellant denied the allegations and on the pleadings of the parties the Rent Controller framed the following issues:-- - (1) Whether the petitioner has no cause of action? OPR
(2) Whether this application is brought with mala fide intention? OPP
(3) Whether the respondent has committed wilful default in payment of rent? OPP
(4) Whether the respondent has sublet the premises without consent of the petitioner? OPP
(5) Relief.
' After appraisal of evidence the Rent Controller found that the issue regarding subletting had not been established, therefore, the same was answered in favour of the appellant. As regards issue relating to default in the payment of rent it was held that since the appellant had placed on record back challan showing deposit of rent from July 1987 to May 1988 in the treasury with the permission of the Court, therefore, he could not be adjudged as a defaulter, therefore, the said issue was also answered in favour of the appellant and ejectment petition dismissed through order dated 19-10- 1991.
3. In appeal the learned lower appellate Court held that the deposit of rent through the said bank challan in the Court on 14-5-1988 regarding period from July 1987 could not constitute a valid discharge of liability of payment of rent in time for the said period and after appraisal of evidence on the record it was held that the appellant had committed default in the payment of rent for the disputed period. The appeal was accepted through order dated 31-5-1992 and the ejectment petition allowed and order of eviction passed which has been assailed in this appeal.
4. The main burden of argument presented by the learned counsel for the appellant in support of his appeal was that since it was admitted by A.W.2 who is attorney of the respondent that against payment of monthly rent receipts used to be issued after obtaining signatures of the appellant on the counterfoil, therefore, the onus was on the respondent to prove that the appellant did not pay the rent for the disputed period which she has not discharged.
5. The argument appears to be ingenious but not tenable on close scrutiny of the evidence produced by the parties. A.W.2 was suggested in cross-examination that the respondent refused to receive rent for the disputed period because she was pressing for enhancement of rent from Rs,260 per month to Rs,500 per month from which suggestion it is distinctly clear that so far as the rent for the disputed period was concerned it was admitted to have not been received by the respondent. The matter is further clarified where it was specifically suggested that the respondent sent rent for the months of July and August 1987 through money order which she refused to receive and thereafter rent for three months was also sent by another money order. From this it can safely be inferred that non-payment of rent from July 1987 to November, 1987 to the respondent was admitted, therefore, the onus had shifted to the appellant to prove that the said pleas suggested in the cross-examination were correct and the evidence to prove the same could be the postal receipts and coupon of money orders which were not produced.
6. The appellant examined Muhammad Khalid Bhatti as R.W.1 who stated that the respondent was a Pardanasheen lady. He also stated that regarding payment of rent and sending of money order he was told by the respondent. He clearly admitted that the rent was never paid in his presence. He submitted that there was dispute about the non-issuance of receipt regarding payment of rent for certain period which relates to a period about four or five years prior thereto. His statement was recorded on 6-7-1991 and calculating the period of five years prior thereto it would come to 1986 whereas the default is from July 1987, therefore, his evidence is of no avail to the appellant. The appellant himself appeared as his own witness as R.W.3 in which he stated that he sent rent for January, February and March 1988 through money order which the respondent refused to accept and thereafter he started depositing rent in the treasury. It has already been observed above that a suggestion was given to A.W.2 that the respondent wanted to enhance the rent and claimed Rs,500 per month whereas the appellant himself when appeared as R.W.3 stated that his brother was told by the respondent that she should be paid rent at the rate of Rs,1,200 per month.
7. R.W.2 Malik Shabbir Hayat another witness examined by the appellant stated that the appellant had been regularly paying rent and once there w&s a dispute about the issuance of a receipt because the appellant was demanding the receipt whereas the respondent stated that the receipt book had exhausted. He stated that the appellant thereafter sent the rent through money order which the respondent refused to accept, thereafter the appellant started depositing rent in the Court. In view of the suggestion put to A.W.2 that the rent for July and August 1987 was not received by the respondent as a consequence of which the same was sent through money order, therefore, the evidence of this witness that the rent had been regularly paid can safely be construed not to include the payment of rent for the disputed period as the non-payment of the same for the said period was an admitted fact. R.W.2, however, admitted that it was in the year 1986 that the rent was paid last time, therefore, his evidence is also not relevant regarding question of default for the disputed period which is from July 1987 to November, 1987.
8. The finding of fact recorded by the lower appellate Court does not suffer from any illegality as the same is based on evidence produced on the record by the parties which has not been shown to have been misread and misconstrued. The finding of the Rent Controller that the deposit of rent on 14-5-1988 in compliance with the order passed by the Rent Controller dated 2-5-1988 under section 13(6) of the Rent Restriction Ordinance, did constitute valid payment for the disputed period and, therefore, the appellant was not a defaulter is based on not only misconception of law but also based on complete ignorance of law.
9. For the foregoing reasons this appeal has no merits which is accordingly dismissed with no order as to costs. The appellant is hereby allowed four months' time to vacate the premises subject to payment of monthly rent regularly.