1. SHAH NAWAZ KHAN, J.-Leave to appeal was granted by this Court on 16-9-1976 solely on the ground that the learned Single Judge of the High Court did not properly consider the tenant's appeal before the Additional District Judge whereby the order of the Rent Controller dated 25-11- 1968 alone had been challenged and the question of the order of rejection of tenant's application under Order IX, rule 13, C. P. C. Dated 13-1-190 was not even adverted to. Nevertheless the learned Single Judge of the High Court not only allowed the tenant to raise the question of the legality of the order dated the 13th January, 1969, but proceeded to consider this order solely.
2. Controversial point before the Court at that time was that ex parte order was passed on the 25th of November, 1968, whereby the respondent (tenant) was ordered to be evicted while, in fact, after three days of that date he had submitted a petition before the Controller requesting for the setting aside of the ex parte order. That petition was later dismissed and the tenant filed an appeal an merits.
3. The brief facts of the case are that Safdar Ali plaintiff-appellant sued Messrs Haji Bashir Textile Mill, through its representative, for eviction. The present appellant is undisputedly the landlord and the respondent is his tenant. Besides the default of the tenant to pay the rent regularly, it was also alleged that he had virtually converted the tenancy and the land under lease, which was given to him for the construction of a Textile Mill, was in fact being used as a warehouse and a godown has been constructed thereon.
4. On account of the failure of the defendant-respondent to appear and produce evidence, he was proceeded against ex parte by the learned Rent Controller, who ultimately, after recording the evidence of the landlord; passed the order of eviction against the tenant. The tenant allegedly applied for the cancellation of ex parte order but it was rejected by the Rent Controller on the ground that the main order in the case has been passed under Order XVII, IW0, C. P. C. And therefore, that application was not entertainable; the tenant then preferred a regular appeal against the said ejectment order but his appeal was dismissed on 11-8-1970 by the Additional District Judge, Karachi. The tenant then moved the High Court of Sind at Karachi through a second appeal and a learned Judge of the High Court by order dated 20-1-1976 allowed the appeal and remanded back the case to the 1st appellate Court for considering on merits the tenant's assertion that he had been denied adequate opportunity by the Rent Controller in putting forth his case and also as to whether the Rent Controller was justified in not vacating the order dated 25-11-1968.
5. We have heard the arguments addressed before us by the learned counsel for the parties. The respondent is also present in person. While hearing this appeal, the respondent was confronted with a question as to why he failed to deposit the rent for 8 months, i. e. For the period from December, 1965 to July, 1966, which amount was sent to the plaintiff-appellant through Cheque No. C/6-094011 dated 3-8-1966. In his letter dated 2nd February, 1967 which was sent by the present respondents to the plaintiff appellant it is alleged that he had sent the rent of December, 1965 which was not accepted by the plaintiff-appellant. He then sent Rs. 400 for two months i. e. For Decem--ber, 1965 and January, 1966, which amount was also returned and then by cheque dated 3-8-1966 he sent Rs. 1,600 being the rent from December, 1965 to July, 1966, and again by cheque dated 11-11-1966 for Rs. 800, the rent for the months of August to December, 1966. It is further stated that on 2-2-1967, he sent Rs. 600 by money order as being the rent of the demised premises for three months i. e. For December, 1966 January, 1967 and February, 1967. It is also conveyed therein that the tenant respondent had not so far received any receipt for acknowledgment for the above amount. It would be appreciated that the respondent has not been able to produce any money order coupon or receipt therefore and according to the learned counsel for the appellant the amount bad been sent by the respondent, but in the name of different persons and this is why the same could not be received by the appellant. On that ground the respondent had nothing to say.
6. The respondent has proved himself to be a regular defaulter and this is besides the fact that so far he has not been able to construct a Textile Mill and instead he has been running a warehouse and godowns on this plot for which he had issued advertisement in the newspapers.
7. Before the Rent Controller the landlord led evidence but the tenant failed to appear and he was proceeded against ex parte. The case was fixed for hearing on 18-11-1%8. The lower Court's record is not available but according to the petition the respondent and his counsel remained absent on that date whereafter the petitioner was called and his evidence was recorded. The matter was then put off to 22-11-1968 for the evidence of the respondent, but on that date also the respondent failed to appear and his counsel was also without instructions. The case was then adjourned and fixed for judg--ment on 25-11-1968.
8. The point, that the order of ex parte proceedings was wrong had been taken before the Additional District Judge. It was also taken before the High Court. It is contended on behalf of the tenant- respondent that the tenant's application under Order IX, rule 13 had been dismissed by the Rent Controller. In the memorandum of appeal which the tenant (the present respondent) submitted before the High Court, the date of submission of application under Order IX, rule 13, C. P. C. Has not been mentioned but in the petition of the tenant and in the concise statement of the appellant (landlord) before this Court such date is mentioned as 28-11-1968 (i. e.) three days after the final order was pronounced by the Rent Controller. It would mean that after the final order was passed the Rent Controller ceased to have any jurisdiction to deal with that application. Even otherwise, it was the tenant who preferred the appeal on merits, meaning thereby that he left all interest in that application. The Rent Controller dismissed that application on 13-1-1969, which means that even this order was without jurisdiction, in that, the Rent Controller had already passed final orders in the case and there was nothing left before him in the case to deal with, much less to touch upon the order passed on merits. This point could not therefore be considered by the first appellate Court.
9. The approach of the learned Judge of the High Court does not appear to be proper. The final order of ejectment was passed on 25-11-1968 and the tenant (respondent) moved the Rent Controller for setting aside ex parse proceedings on 26-11-1968. The impugned judgment of the Rent Controller dated 25-11-1968 would show that he discussed the case on all issues one of which was, whether the opponent (tenant) was the defaulter. He observed that the tenant was a defaulter in payment of the rent for eight months (i. e.) from December, 1965 to July, 1966. We may agree with the tenant that the landlord was refusing to accept rent, but such a situation could be overcome, if the tenant had cared to deposit the rent in Court regularly and in time. But it did not so happen. The learned Rent Controller further observed that according to the terms of agreement, the tenant was to secure the permission of the K. D. A. And K. M. C. For raising any construction but he did not do so and instead raised unauthorised construction on the case plot. This point has not been specifically controverted in the memorandum of appeal submitted by the tenant before the District Judge.
10. Even in his written statement, which he submitted before the Rent Controller, the tenant (present respondent) did not care to even touch this allegation of the landlord.
11. Absence of the tenant (respondent) from the proceedings and lack of interest taken by his counsel left the Rent Controller with no other alternative but to proceed with the case, as he has done. We are, therefore, of the view that no interference was required with the final order of Rent Controller, which was also approved by the Additional District Judge. Even the learned Judge of the High Court in the impugned judgment observed that. "It is correct that in the memo of appeal there is no express prayer for setting aside the order dated 13-1-1969." He could not conclude that what was urged before the lower appellate Court was not considered.
12. We, therefore, find that the impugned order dated 20-1-1976 of the High Court is not sustainable.
13. This appeal is therefore accepted and judgment o the High Court is set aside while those of the Rent. Controller and the Additional District Judge are maintained, with no order as to costs. At the express request of the respondent, he is allowed three months time from today to vacate the suit premises, which is subject to the condition that the surrender is voluntary and the rent is paid regularly and in time.