' This is a second rent appeal against the orders dated 30-5-1973 an 28-2-1974 passed by the learned Rent Controller, at Karachi and the learne Bird Additional District Judge, at Karachi, respectively, in Rent Cas No, 567/71 and Rent Appeal No, 242/73, respectively.
2. The brief facts leading to the filing of the appeal are that t respondent filed a rent application namely, Rent Application No, 229/70 f ejectment in January, 1970, on the ground of default in payment for the period commencing from December, 1968 to December, 1969 at Rs, 60 p.m. In the above rent application, the present appellant filed a written statement in which it was averred that he had paid rent upto April, 1968 and that he was entitled to adjust the repairing charges amounting to Rs, 240 towards the rent commencing from May, 1969. In the above case the rent order was passed on 21-8-1970, in pursuance of which the present appellant deposited the arrears of rent commencing from May, 1969 till July, 1970. The above ejectment application was dismissed in default for non-prosecution on 5-1-1971. After that it is an admitted position that the appellant had deposited rent upto January, 1971 in pursuance of the above tentative order in the aforesaid Rent Application No, 229/70 and thereafter sent money order for the month of February, 1971, Exh.
7. Thereafter he sent another money order for the months of March and April, 1971, Exh.
8. It seems that the respondent refused to accept the above money orders and filed the present ejectment application on 3-3-1971. In para. 3 of the application the following averments were made :- "That in spite of repeated demands, the respondent has not paid anything towards the rent of the shop to the applicant since December, 1968. Thus a sum of Rs, 780 as arrears of rent for the last 27 months i,e, from December, 1968 to February, 1971 is outstanding against the respondent and as such he is a defaulter.
2-A. It may be noticed that in the application it was urged by the respondent that the appellant was in arrears of rent since December, 1968 for the period of 27 months at Rs, 60 amounting to Rs,
780. He did not disclose the fact of the filing of the previous rent application or the fact that the appellant had deposited rent in pursuance of the tentative order dated 21-8-1970, or the fact that he had refused to accept the two money orders for the period commencing from February, 1971 to April, 1971. The second rent application was also resisted by the present appellant. The learned Rent Controller framed the following three issues, namely-
(i) whether the opponent is defaulter ?
(ii) what is the amount of arrears of rent outstanding against the opponent ?
(iii) whether the cost of repair is recoverable ?
' The learned Rent Controller came to the conclusion that in any case the appellant was defaulter in payment of rent for the period commencing from April, 1969 to December, 1969. It was also observed by the learned Rent Controller that depositing of rent by the appellant in pursuance of the aforesaid tentative rent order dated 21-8-1970 in Rent Application No, 229/70- and the withdrawal of the same by the respondent did not erase the default, which was committed by the appellant. On the basis of the above finding he granted the ejectment in favour of the respondent.
The appellant being aggrieved by the above order filed the Rent Appeal No, 242/73, which was also dismissed by the learned 3rd Additional District Judge, by his aforesaid order dated 28-2-1974 concurring with the finding of the learned Rent Controller on the question of default. The appellant being aggrieved by the aforesaid two orders has filed the present IInd appeal.
3. (a) In support of the above appeal Mr. S. Zaheer Hassan, learned counsel for the appellant has urged that admittedly on the date of the filing of the present rent application no arrears of rent were due and payable and, therefore, the application was not competent. His further submission was that the respondent's allegalion that the appellant committed alleged default for the period commencing from December, 1968 was false to the knowledge of the respondent and, therefore, the learned Rent Controller should have exercised discretion in favour of the appellant. In support of his above contention Mr. Zaheer Hassan has referred to the case of Samiullah v. Muhammad Saleem, District Judge, Rawalpindi and 2 others (1) and the case of Muhammad Hanif v. Dr. S. Mozammil All (2). On the other hand, it was urged by Mr. Munawar Abbas, learned counsel for the respondent that the depositing of rent or the withdrawal of the rent by the respondent in pursuance of the tentative rent order dated 21-8-1970 passed in Rent Application No, 229/70 did not erase the default which had already been committed by the appellant. In support of his above contention, he has referred to the case of Haji Fida Hussain v. Muhammad Ibrahim Khan (3).
(b) Reverting to the learned counsel for the parties' above contentions it may be pertinent to refer to the cases cited by them : (i)As regards 1971 SCMR 725 it may be observed that the facts of the above case were that the landlord had filed a suit inter alia for the recovery of rent. While the above suit was pending, the Canton, ment Rent Restriction Act, 1963 was promulgated, the effect of which was that no ejectment order could have been passed except in accordance with the provisions of the said Act.
The tenant had deposited rent in a suit which was withdrawn by the landlord- with the consent of the tenant prior to the filing of a rent application for ejectment under the aforesaid Cantonment Rent Restriction Act, 1963. On the basis of the facts of the above case it was held by the Supreme Court while refusing leave in a petition for leave to appeal that on the date of the filing of the rent application for ejectment no rent was outstanding against the tenant as to entitle the landlord to maintain an application for ejectment under section 17(2)0 of the. Act.
(ii) With reference to the above 1981 CLC 327 it may be stated that above case was decided by me in which the landlord/applicant made general allegations about default without specifying any period. It was held by me that on the basis of the above vague allegations a case of default cannot be made out, but in the instant case the respondent had specified a specific period, though according to the finding of the two Courts below the appellant had committed default in respect of a portion of the period averred in the rent application.
(iii) Reverting to 1972 SCMR 262 it will suffice to observe that in the above case while refusing leave in a petition for leave to appeal, the Supreme Court of Pakistan observed that the fact that the defaulting tenant had deposited rent with the Rent Controller before ejectment application was made, was of no consequence.
4. Since in the first rent application the respondent had alleged default for the period in respect of which the two Courts below have come to the conclusion that there was default, the question arose, as to whether the dismissal of the aforesaid first rent application would constitute a res judicata for the purpose of the second rent application. Mr. Munawar Abbas learned counsel for the respondent has referred to section 14 of the late Urban Rent Restriction Ordinance, 1959 in support of his, contention that the second rent application on the same ground is barred only if the first application was decided on merits and not otherwise. Section 14 reads as follows :- "14. The Controller shall summarily reject any application under {{FOOT NOTE}}
(1) 1971 SCM R 725 (2) 1981 CLC 327 (3) 1972 SCM R 262 {{FOOT NOTE}} subsection (2) or under subsection (3) of section 13 which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance."
' Mr. Munawar Abbas, learned counsel for the respondent in support of his above contention has referred to the case of Allahrakha v. Muhammad Shafi (1), in which the landlord after filing the first rent application withdrew the same on the basis of some compromise outside the Court. However he filed a second rent application. It was pleaded that the second application was barred by res judicata. However, the above plea was rejected inter alia by the Supreme Court while refusing leave to petition for leave. It was held that section 14 applies to cases decided by the Rent Controller and not to a case of withdrawal of an application. It may be observed that even when an application is withdrawn, it is dismissed as withdrawn and no distinction has been pointed out by the learned counsel for the appellant between a dismissal on account of the withdrawal and a dismissal for non-prosecution. It was also contended by Mr. Munawar Abbas that since the appellant had not raised the plea of res judicata either before the learned Rent Controller or before the first appellate Court or even before this Court, this plea cannot be agitated before this Court or be considered by this Court. Reliance has been placed on the case of Sadiq Hassan v. Mst. Khurshid Fatima an another (2), in which it was held that the bar of res judicata not pleaded in the written statement in a family suit cannot be permitted to be raised at the appellate stage.
' Mr. Zaheer Hussain, the learned counsel for the appellant was unable to cite any case in which a contrary view had been taken. It is therefore evident that the respondent's second rent application was not barred by res judicata. In this view of the matter the respondent watt entitled to urge the default which was the subject-matter of the first rent in default.
5. It was vehemently urged by Mr. Zaheer Hassan that since the respondent had suppressed the material facts in the rent application inasmuch as he did not disclose the filing of the previous application and depositing of rent by the appellant in the aforesaid rent case, and that he made incorrect statement as to the period of default, the Rent Controller should have exercised the discretion in favour of the appellant and not in favour of the respondent and so also the first appellate Court. In this connection it will suffice to observe that it is true that the respondent had suppressed the above facts in the second rent application, but the default was very much there for the period found by the two Courts and it was open to the learned Rent Controller to dismiss the rent application on any consideration permissible under section 13 of the late West Pakistan Rent Restriction Ordinance, but since that discretion has been exercised against the appellant and as the appellant has not been able to show that the discretion was exercised arbitrarily or capriciously, this Court cannot interfere with the concurrent finding of the two Courts below in a second appeal. In this view of the matter the above contention also fails.
6. The upshot of the above discussion is that the above appeal does not have merit and therefore, is dismissed with no order as to costs.. However, I grant 8 months' time from today to the appellant to hand over vacant possession with the consent of Mr. Munawar Abbas the learned counsel for the respondent on the condition that the appellant shall continue to deposit monthly rent in terms of the Rent Controller's order and in case {{FOOT NOTE}}
(1) 1978 SCM R 437 (2) 1978 SCM R 130 {{FOOT NOTE}} he will commit any default the respondent shall be at liberty to file an execution application immediately on commission of such default without waiting for the expiry of 8 months.