' This is a Second appeal under the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the said Ordinance) against the concurrent orders of a Rent Controller and District Judge, Karachi striking off the appellant's defence for non-compliance with the Rent Controller's orders for deposit under subsection (6) of section 13 of the said Ordinance. The respondents are the owners of the property demised to the appellant and had filed an eviction application against him sometime in 1964. As the appellant contested the eviction application, in due course, the Rent Controller passed an order for deposit of tentative rent under subsection (6). He fixed the monthly rent at Rs, 36 and directed the appellant to pay Rs, 1,800 as arrears and to deposit the monthly rent at Rs, 36 p.m. The appellant complied with this order but according to the respondents, he was irregular in the deposit of rent, therefore they filed an application that an enquiry should be made as to whether he had complied with the order of deposit of rent and that if it was found that he had -committed breach of the order his defence should be struck off. The appellant contested this application and the case of the respondents appears to have been that the appellant had committed default twice. Thus it was argued that he had deposited the rent of December, 1964 on 5th January, 1965 and the rent of March 1965 on 7th April 1965. As the 4th January, 1965 was a holiday, the Rent Controller rejected the plea that the appellant had committed default in the deposit of the rent of December 1964 but the rent of March, 1965 had been deposited on 7th April, 1965, and the appellant's only plea in justification was that he had been prevented by illness from depositing it before 5th April, 1965. Because the appellant did not produce a medical certificate to prove his illness, the Rent Controller, disbelieved his plea and struck off his defence. The appellant filed an appeal in the District Court which was dismissed on the same ground; therefore he came in second appeal to this Court.
2. Mr. Burney satisfied me that the appellant used to deposit rent in lump sum and was generally depositing rent in advance, therefore, as he had been late in the payment of rent only once and that only by three days, Mr. Burney submitted that the Courts below had erred in disbelieving his plea of illness. This argument receives support from the fact that the appellant was generally depositing rent in advance. But as it cannot be said that the view of the courts below is not supported by evidence I cannot interfere with their current finding in this second appeal.
3. Mr. Burney then pointed out that the Rent Controller's order for deposit of rent was defective because it had directed the appellant to deposit rent which was time barred. Mr. Abdul Majid Khan very fairly concede the position and admitted that in compliance with the order for deposit, the appellant had deposited rent that was admittedly time-barred, under the rule laid down by the Supreme Court in Ashfaq-ur-Rehman v. Ch. Muhamma Afzal (1). This means that the respondents had received rent which the appellant was not liable to pay. Mr. Burney therefore submitted that the appellant was entitled to credit for the excess rent which was thus lying in Court and/or had been collected by the respondents. The submission in supported by reason and equity, and learned counsel also referred me to the observations of the Supreme Court in Evans v. Muhammad Ashraf (2). There the facts were that the landlord had collected rent at a rate higher than she was entitled to in law and with regard to the question of alleged default Hamoodur Rehman, J. As he then was, now the Chief Justice, pointed out at page 552 that as the appellant "had paid for 15 months at double (the correct) rate he was legitimately entitled either to a refund of the excess amount paid or to an adjustment thereof against future rents before he could be treated as a defaulter." It is conceded before me that the respondents have not refunded to the appellant the excess amount deposited by him, therefore, in view of the observations quoted, the excess rent has to be adjusted against the single default of March, 1965. The result is that it wipes out the alleged default, so that the impugned orders are illegal and the appeal must be allowed.
4. Mr. Abdul Majid Khan then submitted that in fact no time-barred rent had been deposited by the appellant or collected by the respondents because the respondents were entitled to extension of time for the recovery of (1) PLD 1968 SC 230 (2) PLD 1964 SC 536 rent from the appellant on account of a dispute between them and the appellants over the transfer of the demised property by the Settlement Authorities. Mr. Burney naturally submitted that this argument was contrary to the view taken by the Supreme Court in Ashfaq-ur-Rehman's case. But Mr. Abdul Majid Khan took time to produce a copy of a judgment of a Division Bench of this Court in Attaullah Malik v. Rasid and another Second Appeal No, 108 of 196. In this judgment the Division Bench has considered Ashfaq-ur-Rehman's case and further held that time for the recovery of rent by the landlord was extended by a dispute about the title of the demised property. Sitting as a Single Judge of this Court, I am hound by this judgment and as it may support the respondent's claim. It is clear that their plea that the rent ordered to be deposited did not include any time-barred rent requires to be investigated. However, they have not pleaded in their eviction application that they were entitled to extension of time so that this argument is not available to them unless the pleadings are amended.
5. Mr Abdul Majid Khan therefore submitted that the respondents should be allowed to amend the pleadings because the appellant also was relying on a defence not raised by him in the Courts below. It is true that the appellant had not relied on his right of adjustment of the excess rent deposited by him in the Courts below. But as it is based on admitted facts and raises only a question of law he is entitled to rely on it. It would however not be just to allow him to rely on this plea and at the same time to deny to the respondents an opportunity to amend their pleadings so as to meet the plea of the appellant. Both the learned counsel also agreed with this view and sought permission for amendment of the pleadings. Accordingly I permit both of them to amend their pleadings.
6. The result of this discussion is that the impugned orders are set aside and the appeal is allowed.
The case is remanded to the trial Court which shall give the respondents an opportunity to amend their eviction application. The appellant will then be entitled to amend his written statement and thereafter the Rent Controller will re-hear, in the light of the amended pleadings the question whether the appellant had committed any default in compliance with the order for deposit of rent passed by him. The appeal is allowed to the extent stated herein, but I make no order as to costs. . Case remanded.