Mst. SAROOBAI And Another vs Mst. RUBAB BAI
This petition is directed against the judgment and order of the Sind High Court passed in Second Appeal No.188 of 1981, which allowed the appeal of the respondents against an ejectment order. The petitioner landladies had filed an ejectment application on the grounds of default in rent payment, subletting, and unauthorized construction. The respondents contested the default claim by asserting that an agreement of sale was entered into, wherein a cash sum of Rs.1,000 paid as earnest money was adjusted towards arrears of rent. The Rent Controller and District Judge ruled in favor of the petitioners and ordered ejectment, but the High Court reversed this decision. The core legal question revolves around whether the High Court erred in holding that the alleged cash payment of Rs.1,000 could be adjusted towards arrears of rent and in disturbing concurrent findings of fact of the lower courts without sufficient evidence. The Supreme Court of Pakistan held that the contentions raised by the petitioners require re-examination and accordingly granted leave to appeal.
- Whether the High Court can disturb concurrent findings of fact of the lower courts regarding the payment of rent?
- Can an earnest money amount paid under an unmaterialized agreement of sale be adjusted towards arrears of rent without sufficient evidence?
ORDER
MIAN BURHANUDDIN KHAN, J.--This petition is directed against the judgment and order of the Sind High Court passed in Second Appeal No.188 of 1981.
2. On 23-3-1966 the petitioner landladies filed an ejectment application against the respondents on the ground of default in the payment of rent from 1-7-1965 up to the date of filing the ejectment application and also on the ground of subletting and unauthorized construction. The respondents contested the ejectment application with regard to the default they took the plea that the petitioners had allegedly entered into an agreement of sale of the disputed premises with the predecessor of the respondents in July, 1966. It was further alleged that sum of Rs.1,000, in cash, and another sum of Rs.6,000 by a cheque, was received by the petitioners by way of earnest money; that the agreement for sale did not materialise and the cheque for Rs.6,000 was returned to the respondents whereas the amount of Rs.1,000 paid is cash, adjusted towards the arrears of rent from July, 1965 upto November, 1965.
3. The learned Rent Controller passed an ejectment order against the respondents. First appeal filed before the learned District Judge was dismissed but the second appeal filed in the High Court was allowed vide the impugned judgment.
4. Learned counsel for the petitioners has contended that the learned High Court Judge has erred in holding that the alleged amount of Rs.1,000 paid as earnest money, was adjustable towards the arrears of rent; that the payment of Rs.1,000 in cash has not been proved by the respondents to have been paid to the petitioners as there is no evidence on the record to substantiate this plea yet the learned Judge of the High Court believed the statement in his behalf; that the conclusion drawn by the learned Judge in the impugned order that the alleged amount of Rs.1,000 retained payable by the respondents to Fide Hussain and in the request of Fide Hussain this amount was adjustable towards the rent, is erroneous and lastly, the learned counsel urged that on the question of concurrent finding of facts by to Courts below is, favour of the petitioners for payment of Rs.1,000 in cash, should not have been disturbed by the learned High Court Judge.
5. We have considered the contentions raised by the learned counsel and we find that the submissions require re-examination. Accordingly we grant leave. Security Rs.2,500. Record and proceedings of the Controller shall be summoned.