' The appellant is a tenant in the disputed premises. The respondent filed an ejectment case against the appellant on the ground of his personal need. The Controller by his order dated 25th April, 1979 directed the appellant to deposit the rent from the month of April 1979 at the rate of Rs, 110 per month before 15th of May, 1979 and to continue to deposit every month. The respondent moved an application before the Controller alleging that as the appellant has defaulted in depositing the rent in time, his defence may be struck off and respondent may be put in possession of the disputed premises. According to the impugned order, notice was issued to the appellant who filed his objection on 28th January, 1980 giving details of payment made by him. A copy of the said objection has been placed on record by the learned counsel for the respondent which has not been disputed by the learned counsel for the appellant. In this objection the appellant has stated that the opponent has not committe' default as was clear from the details that was mentioned in the sai objection and prayer was made that the respondent's application may b dismissed. The Nazir's report was called for and it confirmed the date of deposit of the rent as stated by the appellant. A perusal of the statement disclosed that on 21st November, 1979 the appellant deposited Rs 220 being the rent for the month of October and November 1979. According to the respondent the default has been committed as the rent for the month of October 1979 was deposited on 21st November, 1979 instead of 15th November, 1979 as ordered by the Controller. The Controller by his impugned order held that the default has been committed. The Controller in view of the default struck off the defence and passed the impugned order.
2. The learned counsel for the appellant has contended that he had offered an explanation on 7th of February 1980 by filing an application and an affidavit explaining the reasons for the delay in payment of monthly rent which was not accepted by the Controller and therefore no opportunity was given to him for defending the case. It seems that the appeal was admitted for consideration of this point alone. It is noteworthy that the appellant did not disclose that he had filed an objection on 28th January, 1980 in which he had taken a clear stand that he had not committed any default.
It seems that the appellant first filed an objection on 28th January, 1980 giving details of seven payments deposited by him and took the stand that no default was committed. As such an explanation was offered at that time. Realising that the default has occurred as reflected by the appellants own statement he tried to improve the case by offering an explanation on 7th February, 1980. The appellant filed an application which was not entertained by the Controller and the same has been annexed with the memo. Of the appeal as Annexure 'A'. This shows that the subsequent affidavit filed by the appellant was an afterthought and having filed an objection earlier he cannot be allowed to charge his stand and set up a completely different case. In the circumstances the learned Controller was justified in refusing to accept the affidavit filed on 7th February, 1980 when the order was passed by him. The admitted position is that the appellant failed to deposit the rent for the month of October within the time granted by the Controller. In this circumstance the Controller was justified in passing the impugned order. However, I have also considered the explanation offered by the appellant explaining the default in the affidavit filed by him. He has stated that during the first two weeks of November, 1979 he had gone to Lahore. He has further stated that he had through out deposited rent in advance and when he paid the rent up to October, 1979 he was under the bona fide impression that he was depositing rent in advance and the default was therefore occurred due to bona fide human error. The appellant has endeavoured to explain the default by stating that during the first 2 weeks of November, 1979 he was at Lahore to see off his relatives who were proceeding to India.And therefore deposited the rent on 21st November, 1979. However, the objection filed by the appellant which has been placed on record, does not support the contention of the appellant that he was depositing the rent in advance.
Before the date of default viz. 21st November, 1979 during a period of six months the appellant had deposited the rent for 2 months only once. It was on 2nd July, 1979 when the rent for the months of June and July, 1979 was deposited because the Court was closed during the month of June for summer vacation. It is therefore incorrect to say that due to regular two monthly deposits some misunderstanding in calculation was related causing default. The learned counsel for the appellant has relied upon PLD 1967 SC 532. However, the observation made therein o not support the case of the appellant as he has not been able to show own the non-payment of rent was be'. And the control of the appellant early because he had been out of Karachi to see off his relation cannot be treated as sufficient cause for condoning the delay in payment f rent.
3. In view of the aforesaid discussion there is no merit in the appeal, which is dismissed with no order as to costs. The appellant is allowed three months time to vacate the premises and hand over the vacant possession to the respondent.