1. This second appeal is directed against the order dated 2-9-1979 of learn IVth Additional District Judge, Karachi, whereby the appeal has bee dismissed and the order of the Rent Controller striking of the defencean with consequent discretion of handing over of possession of the demise premises, has been upheld.
2. Briefly stated the relevant facts are that the respondent/landlord filed a application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the said Ordinance) for eviction of the appellant/tenant from the dismissed premises on the grounds of default in the payment of rent, damage to the premises in question and for requirement of premises for personal need in the Court of Ist Rent Controller Karachi. The tenant contested the proceedings and filed written statement in which monthly rent at the rate of Rs. 400 was admitted and other allegations were denied. On 9-10-1977 the learned Rent Controller passes tentative rent order directing therein deposit of arrears of rent from July, 1976, to September, 1977, at the rate of Rs. 400 per month amounting to Rs. 6,000, before 15th December, 1977, and deposit of lent of each current month before 15th of each subsequent month. On 15-8-1978 ac application under section 13(6) of the said Ordinance was filed on behalf of the landlord with a prayer for striking of the defence of the tenant on the ground of non-compliance with the tentative rent order. On this application notice was ordered and the report of the Nazir was called for. Objections were filed by the tenant and after hearing the Advocates for both the parties the learned Rent Controller passed order on 15-3-1979 striking off the defence holding therein that the tenant has deposited monthly rent for May 1978, on 2nd July, 1978, as such there is a clear default and the plea of the tenant that he could not deposit the rent in the month of June, 1978, as it was summer vacation, is of no avail.
3. Against this order of striking of the defence and consequent eviction, the tenant filed appeal which has been dismissed by the order impugned herein in which it is held that there was summer vacation in the District Court in the month of June, 1978, as such the tenant should have deposited the rent on 1-7-1978, which was the working day and no plausible explanation has been offered by the tenant for not depositing the rent on the day as such there is a wilfull default in the deposit of rent for one day in the result whereof the order of the Rent Controller has been maintained.
4. ' During the pendency of appeal an application under Order XLI, rule 27 was filed on behalf of the appellant for recording of evidence of Nazir of the Court of Rent Controller for the reason that plea was taken on behalf of the appellant that on 1-7-1978 rent could not be deposited because it was Bank Holiday and accounts were being closed and the rent was offered to the deposited on that day but the Nazir declined to accept the same fo het reason mentioned above. It was contended on behalf of the respondent that the finding of the first appellate Court was incorrect to the extent that the rent could not be deposited by the tenant in the month of June, 1978, as it was vacation and there was default of one day only as the tenant failed to deposit rent on 1-7-1978. It was further submitted that in the month of June, 1978, the office of the Rent Controller was open and the rents were being deposited and accepted by the office in terms of the tentative rent orders. In such circumstances the Nazir of the civil Court was summoned along with relevant registers and his evidence was recorded by this Court on 3-11-1980. Syed Shabbir Ahmed has deposed in this Court that he is Nazir of the civil Court, Karachi and first July, is the Bank holiday as such on that day monetary business is not transacted but the office remains open. He has further admitted in his evidence that there are no instructions from higher administrative authorities for not accepting the deposit of rent on that day. He has further stated that it is the practice which is being followed in the District Court consistently. He has further stated in his cross-examination that on 1st July, if a person brings an order of the Court to accept deposit of rent then such order is to be complied with and deposit of rent on that day could be accepted. It is further stated by him that rent on 1st July, is normally not accepted for the reasons that everybody in the branch is busy on that dayin finalising the statements and closing of accounts but even on that day if a person with the order of Rent Controller, the rent can be deposited. This ,witness has further testified that month of June, every year is vacation.. The learned counsel for the appellant did not suggest to this witness that the appellant came to deposit rent on 1st July, 1978, which was declined by the Office of the Nazir. This witness further deposed that month of June, every year is vacation but office of the Nazir remains open to conduct normal business and rents to be deposited under tentative rent orders are accepted. After making a reference to. 'C' Register, which he had brought, the witness stated that in month of June, 1978, from 1st to 14th deposits of rents were accepted in 3268, cases.
5. Mr. Iqbal Kazi counsel for the respondent contended that it is obvious from the evidence of Nazir that in spite of the fact that there was vacation in the District Court in the month of June, but office of the Nazir always remained open and the .Rents were being accepted for deposits as per tentative rent orders and the tenant in this case has committed default for not depositing the rent in the month of June, 1978, before 15th of that month as stipulated in the tentative rent order, when according to the evidence of the Nazir in that month from 1st to 14th rents were deposited in as many as 3,268 cases. In these circumstances the finding of the learned Additional District Judge that plea was available to tenant that he could not deposit the rent in the month of June, for the reason that the Court was closed because of winter vacation, is not sustainable for the reason that even if there was vacation in the civil Court, the office of the Nazir was open and the rents were being accepted for deposits in compliance of the tentative rent orders as has been testified by the Nazir who had brought the register. So far the default in the payment of rent on 1st July, 1978, is concerned, the plea of the tenant is that he offered to deposit the rent on that day but his request was declined by the office of the Nazir is not substantiated and there is no evidence on the record to show that any such offer was made by the tenant on that day it was declined by the office of the Nazir. It appears that purposely no such question was suggested to the Nazir, when he was being examined in this Court by the counsel for the appellant because he would have replied in the negative. It is submitted by Mr. Iqbal Kazi that ever if the tenant assumed that he, was not liable to deposit rent during the vacation then on 1st July, 1978, which is the opening dayof the Court, it was incumbent upon him to have made sincere efforts for deposit of rent and if the office of the Nazir was not prepared to do so, he should have gone to the Rent Controller to obtain the order or permission to deposit the rent as the Nazir has testified in clear terms that even on 1st July, in emergency rents are accepted for deposits if such orders are obtained from the Rent Controller and produced in the office. In these circumstances since there is nothing on the record that this was done by the tenant, there appears no plausible explanation for not depositing the rent before 15th of) June, 1978, as well as for not depositing the rent on 1st July, 1978. In support of the contention that the rent could be deposited even during the month of vacation for the reason that office of the Nazir is always upon to accept such rents in compliance with tentative rent orders, the learned counsel for the respondent has drawn my attention to the Judgment of this Court dated 13-9-1978 of my learned brother Z. A. Channa, J. (as he then was) in Second Appeal No. 115/73 in which the plea taken by the tenant against the default was very much same as in the case. In that case the learned Judge examined the Nazir and came to the conclusion that even during the vacation the office of the Nazir is open and the rent could be deposited in the Court in compliance with the tentative rent order and such plea is not available to the tenant. In the result the learned Judge was pleased to dismiss second appeal filed by the tenant. Mr. Iqbal Kazi has further submitted that against that judgment petition for special leave to appeal was filed in the Supreme Court in Appeal No. K-214/78 which was dismissed by order of the Supreme Court dated 4-4-1979 and copy of that order has. Also been produced before me which is on the record. In these circumstances I find no force in the contention of the learned counsel for the appellant that the tenant could not deposit rent for the month of May, 1978, before 15th of June, 1978, for the reason that month of June, 1978, was vacation and subsequently after reopening of the Court it could not be deposited on 1st July, 1978, for the reason that it was a bank holiday and the office of the Nazir declined to accept the same. On the other hand there is sufficient evidence on the record to show that even during the vacation rent could be deposited because the office of the Nazir is open and accepts the deposit of rent in compliance with the tentative rent order and even on 1st July, the rents can be accepted if such orders are obtained from the Rent Controller.
6. It is submitted by the counsel for the respondent that in the instant case when application under section 13(6) of the said Ordinance was filed in the Court of Rent Controller for striking of the defence of the tenant on the ground of non-compliance with the tentative rent order, the tenant filed his affidavit of objections to that application and in the said affidavit no such plea was taken that the rent could not be deposited in the month of June, because it was vacation in the District Court and the office of the Nazir was closed. It appears from the affidavit of objections in the record of the Rent Controller that no such plea was taken that the rent could not be deposited in the month of June, because of vacation or could not be deposited on 1st July of 1978, because it was Bank holiday. On the other hand the plea taken in the affidavit of objections is that no default has been committed and the tenant bad with him Receipt No. 2448 dated 9-7-1978 for Rs. 400, which the Nazir had not mentioned in his report. Subsequently at the time of arguments it appears that plea was taken by the tenant that the rent could not be deposited in the month of June, 1978, because of vacation and such plea is reflected in the order of the Rent Controller striking of the defence. It is further submitted by Mr. Iqbal Kazi that the first appellate Court did not make an inquiry into the question whether during the month of June, when the District Court is closed for summer vacation, the office of the Nazir is open for conducting normal business, which includes acceptance of deposit of rent in compliance of the tentative rent orders. It is further pointed out that before the first appellate Court the tenant has not taken the plea that the rent could not be deposited on first July, 1978, for the reason that it was bank holiday and the Nazir refused to accept the deposit of rent on that day. The perusal of the judgment of the Appellate Court, impugned herein and the memorandum of appeal filed by the tenant in the First Appellate Court confirms the assertion of the counsel for the respondent. On this premises it is contended by Mr. Iqbal Kazi that the plea now taken by the appellant in this Court that the rent could not be deposited on 1 at July, 1978, for the reason that it was a Bank holiday and office of the Nazir declined to accept the deposit of rent on that day is an afterthought. My attention has been drawn to paragraph 12 of the memorandum of second appeal filed in this Court in which it is admitted that the appellant/tenant subsequently made inquiries and was informed that on 1st July, 1978, office of the Nazir of the Rent Controller did not accept the rent as it was closing the entire accounts as 'such Ist July, is being observed as a closed day. It is submitted that para. 12 of the memorandum of second appeal as stated above is self-explanatory that no attempt was made on 1st July, to deposit the rent and subsequently after the first Appellate Court announced the judgment inquiry was made and it was found out that the rents were not accepted on the 1st July, as the office of the Nazir remains busy in closing the accounts. The contention of Mr. Iqbal Kazi is correct and it appears that the plea that the rent could not be deposited on 1st July, because it was bank holiday was not taken before the learned Additional District Judge and has been taken up for the first time in second appeal. It only shows that no efforts were made by the tenant to offer the rent for deposit in the office of Nazir on 1st July, 1978.
7. Contention was raised on behalf of the appellant that the respondent has not filed cross objections or cross appeal against the judgment of the first appellate Court, in which it is held that there was no default on account of non-deposit of rent in the month of June, 1978, for the reason that the Court was closed for summer vacation and there was default for one day only as the rent in question was deposited on 2nd July, 1978, instead of 1st July, 1978, which was the first opening day of the Court after summer vacation. Reference was made to Order XLI, rule 22, C. P. C. Mr. Iqbal Kazi counsel for the respondent has met this contention by submitting that the respondent could urge any other ground in support of the decree if the conclusion is same. It is further submitted by Mr. Iqbal Kazi that the Judgment of the first appellate Court is in his favour in which it is held that there is a default for one day and on that ground appeal of the tenant was dismissed. He supports the same conclusion that there is a default and further that the first appellate Court should also have held that there was default by the tenant when he failed to deposit rent in the month of June, 1978, for the reason that in spite of the fact that the month of June, was summer vacation in the District Court but the office of the Nazir was open and rent could be deposited as it appears from the evidence of the Nazir examined by this Court. It is further submitted by Mr. Kazi that although he has not filed cross objections or cross appeal against the finding of the First Appellate Court that rent could be deposited in the month of June, as it was summer vacation, he has taken up this plea specifically in the counter-affidavit filed by the respondent in the High Court in the second appeal against applications filed by the appellant under Order XLI, rule 27, C. P. C. And Order XLI, rule 5 read with section 15(4) of the said Ordinance. It was further submitted by Mr. Kazi that it was not obligatory upon him to file cross appeal or cross objections for the reason that he still supports the finding of the First Appellate Court that there was a default and could object to a part of impugned Judgment without having preferred cross objections. In support of this contention the learned counsel has placed reliance upon the decisions in Qutubuddin v. Muhammad Siddique and others (1), and Messrs Yousuf & Company v. Mst. Rashida Begum (2). It therefore appears that objection can be taken by the respondent to a part of the judgment impugned, even if cross objections have not been filed provided the conclusion in the impugned judgment is still supported by the respondent.
(1) PLD' 1969 Lab. 418 (2) PLD 1975 Kar. 684