1. ' These are two IInd Appeals directed against the orders of IV Additional District Judge, Karachi in R.As. Nos 126 and 127 of 1972 dated 29th May, 1973 and the order passed by Rent Controller and Civil Judge, XIV, Karachi in R. C. No, 1378 and 1379 of 1970 dated 24th February 1972 whereby the appellant was directed to hand over the possession of premises 1/4 and 1/5 Jewajee Building R. C 10/7/1 Aslam Road Ranchoreline, Karachi. The appellant was the statutory tenant of the respondent in respect of this premises as they had been transferred to the respondent by P.T.D. Dated 5th August 1969 while the P.T.O. Had been issued to him on 5th August, 1968. On 10th April, 1969 the respondent issued statutory notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 to the appellant for payment or rent. Another notice was issued on 6th May, 1970 which specified Rs, 35 per month as rent. On the failure of the appellant to pay the rent, the respondent filed application for ejectment on account of default in payment of rent. In the written statement filed by the appellant, the appellant denied that he was in default of rent and submitted that the respondent had failed to accept the rent and hence the same was deposited in Court in R. C. Miscellaneous Application No, 31 and 30/1969. The respondent had claimed rent at Rs, 35 per month but the appellant submitted that the rent of the premises was Rs, 15 per month and not Rs, 35 per month. The respondent filed a statement of account showing that rent was due from 5th August 1968 to 31st July 1971, at Rs, 35 per month amounting to Rs, 1,220 only. This was done in pursuance of the order of the Court dated 23rd July, 1971. No rent account was filed by the appellant and on 20th August, 1971 the respondent's counsel produced before the Court the K. M. C.
2. Assessm ent and P, T-1 from Excise and Taxation Department showing gross annual rental value having been fixed at Rs, 420 per year on 25-7-1969 for the year 1969. On 20th August 1971 the Controller passed an order fixing the tentative rent at Rs, 420 per year and directing the appellant to pay Rs, 1,255 including current rent before 15-9-1971 and future monthly rent at the rate of Rs, 35 per month to be deposited before 15th of every month. The appellant did not feel satisfied with the tentative rent order and went in appeal before the District Judge which was dismissed by the Additional District Judge. He further went in an appeal before the High Court in Second Appeal but the same was also dismissed in limine by a well-considered order. On 25th January, 1972 the respondent made an application under section 13 (6) of West Pakistan Rent Restriction Ordinance, 1959 and notice of the same was issued to the appellant for 11th February, 1972. The appellants counsel received a notice of application under section 13 (6) on 11th February, 1972 and the Nazir was directed on that day to report whether opponent had deposited the rent in Court or not. The matter was put off to 19th February, 1972 when the appellant's counsel was to file his objections. On 19th February, 1972 the appellant's counsel took time from the Court for producing the receipt of amounts deposited in Court and the matter was thereafter adjourned to 22nd February, 1972. On 22nd February, 1972, the appellant's counsel sent a request for adjournment through his associate counsel and the same was granted and the matter was ordered to be adjourned till 24th February, 1972. On 24th February, 1972 the appellant's counsel again made a request for adjournment on the ground of being busy in the High Court. On 24th February, 1972 an order was passed striking off the defence of the appellant. This order states that it was passed after hearing the Advocates. Mr. Azizul Hassan states that he was not present in Court on that day and therefore the case of the appellant was not properly represented. But Mr. Aziz A. Shaikh counsel of the respondent has informed me that associate counsel of Mr. Azizul Hassan had appeared before the Controller and made his submission. The fact remains that the appellant's counsel had taken time on 19th February 1972 to produce rent receipts but they were not produced. There is no reason to disbelieve the observation of the learned Controller that he had heard advocates. In any case the appellant had neither filed any objection nor any affidavit or other document explaining as to how he had failed to deposit the rent as directed by the Court. Consequently on 24th February 1972, the Controller according to the report submitted by the Nazir came to the conclusion that no amount had been deposited in Court and consequently he struck off the defence of the appellant on 24th December, 1972.
3. ' The contention of Mr. Azizul Hassan is that his client has been prejudiced and as he was not heard by the Controller as the Controller refused to adjourn the matter on 24th February, 1974. This submission does not seem to be correct in view of several opportunities allowed to the petitioner to file objections or to file the rent receipts as explained above. In any case, the learned counsel had full opportunity of making his submissions before the Appellate Court and whatever he could urge he must have urged and therefore the proceedings cannot be said to be vitiated on account of lack of opportunity of hearing at the initial stage as the appeal is a continuation of the same proceeding and if a party had been heard in an appeal, he cannot complain of lack of hearing in the first Court.
4. ' Next submission of the counsel is that the order of depositing the rent is bad as the order mentioned the arrears of Rs, 1,255 including current rent. He says current rent could not be included in arrears I enquired from the counsel if figures of Rs, 1255 did include the rent of the month of August 1971 but be had to admit that it had not included the rent of August and rent had been calculated at the rate of Rs, 35 per month from 5th August, 1968 till 31st July, 1971 therefore tbe phrase "including current rent" was a mere surplusage and hence this submission is of no consequence and cannot be accepted as vitiating the order only because the order under section 13 (6) must be construed strictly as held in PLD 1964 Kar.
418. The calculation had been correctly made and there was nothing illegal about it.
5. The last submission of the counsel is that the rent could be directed to be paid at Rs, 35 per month only from the date of notice 6th May, 1970 and not earlier and that before that only Rs, 15 per month could have been directed to be paid. He has relied upon PLD 1970 Lab. 923 B for this submission.
6. But I find that this aspect of the case has received e serious consideration in the order passed by Mr. Justice Dorab Patel in the IInd Appeal filed by the appellant and his Lordship came to the conclusion that the said objection was teeing raised for the first time in the IInd Appeal and could not therefore be entertained. The order of Mr. Justice Dorab Patel was passed as far back as 29th March 1972 in IInd Appeal No, 65 of 1972 and the points of law and facts decided therein cannot be now canvassed before me as I have only the current jurisdiction. Relevant portion of the order is hereby produced as under "In order to appreciate this argument I have to point out that the respondent had sent a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act dated 10th April, 1969 informing the appellant of the transfer to him of the disputed premises and calling upon him to pay rent. But as this notice does not specify the rate of rent, by another notice dated 6th May, 1970, the respondent had informed the appellant of the rate of rent and stated that it was Rs, 35 per month and that he was liable to pay the rent from 5th August, 1968 at that rate. According to learned counsel, the respondent could claim rent at Rs, 35 per month only after his second notice of 6th May, 1970 and in support of this argument he referred me to the judgment of 'a learned Single Judge of the Lahore seat of the West Pakistan High Court in Nizamuddin v. Mst. Nawab Bibi PLD 1970 Lab.
923. The judgment cited lends some support to learned counsel's argument. But it is an objection which raises a mixed question of fact and law. I therefore enquired from the learned counsel whether it had been raised before the Rent Controller or in the First Appellate Court and I also tried to ascertain the position from the statement of account. I had therefore sent for the record, and I find that, although the respondent had filed a statement of account, the appellant had not cared to do so. In view of this and as the order of the Rent Controller does not refer to this objection it appears to me that the objection now raised had never been raised in the trial Court. Additionally, I had given the appellant an opportunity to file an affidavit, but although an affidavit has been filed, no allegation has been made by the appellant that he had filed any statement of account or that he had raised this objection before the Rent Controller. Clearly therefore he had not raised this objection in the trial Court, but he again had an opportunity of doing so in the First Appellate Court.
7. I have therefore examined the Memorandum of Appeal in the First Appellate Court, but it does not contain any reference to this objection. Learned counsel however draws my attention to the averment in the Memorandum that the order of the Rent Controller dated the 20th August, 1971 was not proper and according to law. This averment cannot be stretched to cover the objection now advanced before me. Additionally, I would observe here that the First Appellate Court's order is a well-considered order which has discussed the arguments advanced, and the order also does not contain any reference to the objection now raised before me. I have therefore no doubt whatever that this objection is being raised for the first time in this second appeal and cannot therefore be entertained."
8. ' I do not think I would be justified in taking a different view from what has been held by Mr. Justice Dorab Patel, particularly when nothing has happened thereafter justifying a change in view.
9. ' The counsel had shown me at the hearing a report from the Nazir of the District Court that the appellant had deposited certain amounts in the Miscellaneous Application Nos 30 and 31 of 1969, but on calculation the same come only too less than Rs, 800 while the appellant had been directed to deposit Rs, 1,255 therefore even if I take all these amounts into consideration even then the appellant remains a defaulter. In any case he had failed to show any cause before the Controller as to why he had failed to deposit the rent in time and hence the order of striking off defence was correct under circumstances. I therefore see no force in these II Appeals and the same are hereby dismissed. The appellant is however allowed 4 months time to vacate the premises.