This is an appeal against the judgment dated 12-10-1980 passed by the learned Additional D1strict Judge, Karachi in First Rent Appeal No. 318/77 whereby the order dated 31-8-1977 in Rent Case No. 3273-75 passed by the III Rent Controller at Karachi was reversed and order of ejectment was passed against the appellant on the ground of default in payment of rent to the landlord.
2. The brief facts of the case are that the appellant is the tenant of the respondent in respect of the premises bearing No. 846-16, Federal `B' Area, Karachi at a monthly rent of Rs.160. The tenancy month is from 15th of each month to 14th of next month according to English Calendar.
The admitted position is that the appellant had paid rent up to 15-4=1975 to the respondent. As no rent was, paid thereafter the respondent on 16-9-1975 filed ejectment case against the appellant under section 13(2) (i) of the then West Pak1stan Urban Rent Restriction Ordinance, 1959. The case was reg1stered as Rent Case No. 3273/75.
The appellant contested the above matter. It was stated by him that an ejectment Case No, 552/75 was already pending in the Court of IX Civil Judge and Controller Karachi against him under section 13 of the West Pak1stan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959) in which ejectment was sought on the ground of personal requirement of the landlord. The defence was that in the aforesaid earlier ejectment case no plea of default, in payment of rent was taken and that the present case was filed .To give a coverage to the lacuna in the earlier case. It was also pleaded that it was simply a multiplicity of proceedings and was designed to cause embarrassm ent to the tenant and was a vexatious and frivolous proceeding.
The appellant also pleaded that he was always ready and willing to pay the rent and that he was not a defaulter.
3. On the pleadings of the parties the following issues were framed.
(1) Whether the application is maintainable?
(2) Whether the opponent has committed default in payment of rent?
(3) What should the order be?
4. The learned Rent Controller, by order passed on 31-8-1977 for the reasons given therein dismissed the said application.
5. Against the aforesaid judgment of the Rent Controller the landlord/ respondent filed an appeal before the learned D1strict Judge being Rent Appeal No. 318-77 which was heard by the III Additional D1strict Judge at Karachi. The learned Additional D1strict Judge, Karachi, by judgment passed on 12-10-1980 allowed the appeal and thereby ordered ejectment of the appellant.
Mr. A. Q. Malik the learned Counsel for the appellant, argued that the tenant had not committed any default within the meaning of section 13(2)(1) of Ordinance of 1959. He however admitted that rent was not paid by the appellant/tenant for the period from 15-4-1975, the tenancy month being from 15th of each month to 14th of the next month). He .However argued that Rs.320 were lying as advance deposit with the landlord which has to be taken into consideration. Even if I accept this contention of the learned counsel it would be seen that by giving adjustment of Rs.320 it would clear the rent for two tenancy months i. e. From 15-4-1975 to 14-6-1975. The tenant appellant would still be in arrears of rent for months of (i) 15-6-1975 to 14-7-1975, (ii) 15-7-1975 to 14-8-1975 and (i.e)
15-8-1975 to 14-9-1975. As the tenancy month commenced from 15th of each month according to English Calendar, the due date for payment of rent for tenancy month of 15-6-1975 to 14-7-1975, was 15-7-1975. Accordingly the rent for this month (15th June to 14th July, 1975) having not been paid up to 16-9-1975 when the new ejectment case was filed the tenant was clearly a defaulter within the meaning of section 13(2) (i) of the Ordinance of 1959 as he had not paid rent for more than 60 days from the period for which the tenant respondent was liable to pay rent as required by section 13(2) (i) of the Ordinance of 1959.
6. Mr. Malik the learned Advocate for the appellant however argued that it was in the discretion of the Rent Controller to have condoned the delay in payment of rent to the landlord and relied upon the case reported in PLD 1980 Kar. 337. Relying upon the aforesaid case the learned counsel for the appellant made two-fold submissions. In the first place it was stated by him that the period of 90 days for payment of rent should be counted on the expiry of a tenancy month and as in this case the tenancy month was from 15-6-1975 to 14-7-1975, the appellant/tenant would be entitled to make payment within 90 days after the expire of this month. His argument however is based on misconception. The appellant was required to make payment of rent due within 60 days from the period for which the rent was payable. In this case the rent for the tenancy month (15th June to 14 July, 1975) was payable on 15-7-1975 and accordingly 60 days expired on14-9-1975. The case which was filed on 16-9-1975 on the ground of default in payment of rent therefore was maintainable as the appellant had made default in payment of the rent as required - by section 13(2) (i) of the aforesaid Ordinance of 1959 (Reference may be made to PLD 1968 Quetta 45).
The second submission of the learned counsel is that it was within the discretion of the Rent Controller not to have ordered, ejectment of the appellant even in case default in payment of rent was established and that since such a discretion had already been exercised in favour of the appellant as stated above, the learned First Appellate Court ought not to have interfered in the same and accordingly the impugned order is liable to be set aside by this Court. This argument of the learned counsel however cannot be accepted as the discretion given to the Controller could be exercised only e on judicial considerations and not in an -arbitrary manner. In this particular case the First Appellate Court has reversed the finding of the Rent Controller as the same was found erroneous and arbitrary.th It is admitted position on record that the appellant has not paid or tender--ed rent from 15-4-1975 till the filing of the case for ejectment on 16-9-1975 i. e. For five months. It was only by giving adjustment for Rs.320 lying in deposit with the landlord by way of advance that we have counted the period of default from 15-6-1975 otherwise the appellant was a defaulter in payment of rent from 15-4-1975 till 16-9-1975, when the case was filed against him.
The above reasoning of the learned Rent Controller which is again canvassed before this Court by the learned counsel for appellant, is erroneous and not warranted by the facts on record. In the first place we find that such a plea was neither taken by the appellant in the written statement nor r any issue was raised, to support such a defence. The learned Rent Controller himself in his order observed that :- "The opponent has though not stated in his deposition, that he was under the impression as mentioned above but the circumstances of the case are such that the opponent could rightly and legitimately be under the impression that he would be required to deposit rent in that case. The learned Advocate for the opponent further argued that if rent orders were passed in that case between the parties, the present situation would not arise and the opponent would not be a defaulter.
That the opponent has became defaulter due to the reason that no rent order was passed in that case till this case was filed."
7. It is well - settled principle of law that no evidence could be allowed or considered on a plea which has not been raised in the pleadings or incorporated in the issues, Ch. Bros. -v. Co-operative Bank (1968 SCMR 804).
I may also refer here to the case of Muhammad Hassan & Co. (1975 SCMR 355) where also the Honourable Supreme Court rejected the contention (as to practice of payment of rent in lump sum) raised by the petitioner as it "was not pleaded by the petitioner in the written statement."
8. Besides, we also find that it has been authoritatively laid down by the Honourable Supreme Court of Pak1stan in the case of Mushtaq.Mirza v. Rashiduddin (1971 SCMR 60) that in spite of the pendency of any earlier case there is no bar for the second application for ejectment to be brought against the tenant on a different cause of action i.e. Default in payment of rent. We have already noted above, that earlier Case No. 552/75 was fled by the respondent landlord for ejectment of the appellant on the ground of personal requirement, whereas the second application was filed on the ground of default in payment F of rent. In view of the authority of the Honourable Supreme Court in the case of Mushtaq Mirza there is no doubt that as the appellant had committed default in payment of rent and had fallen in arrears of rent, during the pendency of the earlier case (which was filed on the ground of personal requirement) the second case filed by the landlord respondent for ejectment on the ground of non-payment of rent -against the appellant was fully justified, and the First Appellate Court .Rightly directed ejectment of the appellant who had neither tendered nor paid rent after sixty days from the date when the rent became due. If any authority is needed reference be made to the case of Mst. Iqbal Begum v. Mian Manzurul Islam (1978 SCMR 365).
The observations of the learned Rent Controller that landlord took chance and filed the present ejectment case against the appellant Just to cover up lacuna in his previous case, for the reasons discussed above, are not valid. In fact it is not shown as to what was the "lacuna" which the landlord tried to cover up by filing the new case, which we find is based upon different cause of action.
9. The learned Counsel lastly contended that the judgment of the lower Court cannot be interfered with by the High Court and relied upon the case of Abdul Rehman's v. Mst. Chaman Ara (PLD 1972 Kar. 164). That was however a case unde1j the Constitutional Jurisdiction of the High Court and has no relevancy to the present case which is an appeal filed under section 15(4) of the Ordinance of 1959.
10. The upshot of the above discussion is that I find that the order of the First Appellate Court is based upon correct appreciation of facts on record and. That the order of the Rent Controller was rightly set aside. The appeal is without any merits and is accordingly dismissed. There shall however be no order as to costs.
The appellant is granted a period of four months to vacate the premises provided he continues to deposit rent every month regularly during this period.