' This judgment will dispose of S.A.O. No,110 of 1998 which arises out of a rent case.
2. Facts necessary for the decision of this appeal are, that respondent (Haji Muhammad Ismail) filed an application under section 13 of Punjab Urban Rent Restriction Ordinance, 1959 for the eviction of the appellant, on the ground of default in payment of rent, covering period of. April, May and June, 1984. It was claimed that the appellant was a tenant on monthly rent of Rs,950 per month. Rent note, dated 11-11-1992 was executed in favour of the respondent, the appellant failed to pay rent for the period in issue despite demands and that on account of wilful default, appellant had rendered himself liable to eviction.
3. Defence taken by the appellant was that the ejectment application was filed to cause unnecessary harassm ent, the agreement of tenancy had expired, the rent was tendered in the presence of some respectable but the respondent did not receive and the same was again tendered through money-order but the same was returned with the report that the respondent was not present at home.
4. After issues and evidence, learned Rent Controller directed eviction of the appellant vide order, dated 10-4-1997. Appeals filed by the appellant ended in dismissal vide order, dated 18-6-1998 of the learned Additional District Judge, Faisalabad.
5. Learned counsel for the appellant submitted that the rent was tendered through money-order, the money-order was incorrectly excluded from consideration by the learned Additional District Judge, the appearance of the officials of the postal agency to prove the issuance of money-order to discharge the onus would prove valid tender, the rent agreement having expired tenancy would be deemed to be oral one and no default could be claimed if rent tendered within sixty days.
6. Learned counsel for the respondent on the other hand argued that the parties should be governed by the same terms and conditions of agreement even after the expiry of the agreement, default was proved and that the learned Courts below recorded concurrent findings of facts which could be challenged.
7. From the perusal of the record, it is discernible that the default claimed was in regard to April, May and June, 1994. The ejectment application was instituted on 13-6-1994. This being so, there could not be a default for June, 1994, on 13-6-1994 as no default could be claimed for non- payment of advance rent. In fact, the default remains for the period covering April and May, 1994. In this regard, the landlord did appear in the witness-box as A.W.3 and stated that the rent for the disputed period was neither tendered nor paid. On the making of such statement, the onus shifted upon the appellant to prove payment of rent or that he was not wilful defaulter. It is a rule that once the landlord appeared in the witness-box and depose that the rent is not paid, the negative onus shifts upon the tenant to prove about the payment of rent. Reference can be made to Allah Din v.
Habib (PLD 1982 SC 465).
8. In this case, there are two defences taken by the appellant, one that the rent agreement had expired and default will be after sixty days, secondly, that the rent agreement itself provides for the payment of rent within two months.
9. As far as first contention is concerned, the same is devoid of merit. Even if the period of agreement is expired, the parties will be bound for the same terms and conditions. Reference can be made to Mrs. Zarina Khawaja v. Agha Mehboob Shah (PLD 1988 SC 190). The other contention is also without merit. The agreement shows that if the appellant fails to pay the rent within two months, the landlord will be entitled to eject the tenant. In the first instance, the agreement could not override the provisions of law nor it helps the appellant. The date is fixed for payment of rent, the default will be, if the rent is not paid within fifteen days. In this case, the date for payment of rent was 1st of each calendar month and thus the appellant would be defaulter for April, 1994 if he had not paid the rent till 15th of May. In the like manner, the appellant would be defaulter if the rent was not paid for the month of May before 15th of June. The appellant did not send any money order for April, and May, 1994 before 15th of May or 15th of June, 1994. Even if the contention of the appellant that the appellant could pay rent within two months is taken in consideration still he is defaulter as no payment was paid within two months. The money order allegedly sent for June, 1994 will not wash away the default already occurred. It is a settled rule that tender or deposit of rent after its due date, will not save the tenant from the consequences of default already committed. It is true that the Rent Controller could not direct ejectment unless wilful default was proved but in this case, learned Rent Controller and learned Additional District Judge on consideration of the evidence concurrently recorded findings of fact that appellant failed to tender or make the payment of rent within its due date and that story of tendering the rent through Panchayat was not well proved. Findings so recorded do not suffer from any misreading of evidence; hence no ground is made out for interference.
10. For the reason above, there is no substance in this appeal, which is dismissed. Appellant is allowed four months to vacate the premises.