1. ' The respondent filed an application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 for ejectment of the appellant, who is a tenant in respect of a portion of the first floor of the premises bearing No, 1-B-3/2 Nazimabad, Karachi. The premises were let out to the appellant on a monthly rent of Rs,
125. In the ejectment application it was pleased that the appellant is a habitual defaulter and has failed to pay rent from June, 1976 with the result that arrears of Rs, 3,625 have accrued. The other ground for ejectment was that respondent requires the premises for his personal bona fide use and occupation as at the time of filing the application he was desirous to come to Karachi from England with his family and live on the first floor of the said premises. It was also stated that respondent requires the premises for construction of first floor, which was incomplete when it was let out. The last ground for ejectment was that the appellant had made alteration by putting asbestos sheets on the roof of the incomplete portion of the first floor of the premises without written permission and consent of the respondent and has deminished its value.
2. The appellant filed written statement in which all the allegations were denied. It was pleased that upto May, 1976 rent was paid to the attorney of the respondent. The rent for June, 1976 was tendered to him in the same month, but the attorney refused to accept it. Therefore, on 8th July, 1976 the appellant remitted rent by money order, which was also refused? On 5th August, 1976 and 10th September, 1976 money orders were again refused. The appellant, therefore, started depositing rent in Court from October, 1976 and the rent from June, 1976 up to date deposited in Court. It was pleased that the respondent was residing in England permanently and has no intention to settle in Karachi with his family. All other allegations were also denied.
3. ' The learned Controller by the impugned order granted the application on the ground of default and all other pleas were rejected. Mr. Khalid M. Ishaque the learned counsel for the appellant has contended that in the evidence the respondent has admitted that his attorney had refused to accept the rent from June to October, 1976, and therefore, the appellant was not obliged to pay it to respondent and in these circumstances there was no default as the rent had been deposited in Court. It was further contended that in view of the refusal to accept the rent tendered to respondent there was no obligation upon the appellant to tender the rent further or deposit it regularly in the same manner as rent was to be paid.
4. It was also contended that the appellant could be ejected only on the default alleged in the application and not in respect of any other default, which does not find place in the application itself. So far as this contention of the learned counsel is concerned, he has submitted that the default has been alleged in respect of June to October, 1976 and admittedly, the appellant had been tendering the rent regularly which was refused by the attorney of the appellant. The learned counsel for the appellant has referred to Amir Ali v. Alima where it was held that a Court cannot grant relief entirely on new ground not pleaded in the pleading and a party cannot be permitted to raise a plea at the trial which is inconsistent to the plea raised by him in the pleading, and that a fair opportunity should be given to other side to meet the case as disclosed in the pleading. There can be no dispute over the authoritative dictum laid down in this case after a review of a host of authorities. However, as discussed below these principles can hardly apply to the present case. The learned counsel has contended that the respondent had not specified the period of default in the application but during the trial he has mentioned it from June, 1976 to 2nd December, 1978.
5. Therefore, according to the learned counsel, the Controller should not have taken into consideration the default not alleged in the application itself. In Para. 2 of the application, the respondent had stated that the appellant was in default in the payment of rent since June, 1976 with the result that arrears of Rs, 3,625 have become due and payable. This clearly illustrates that from the very beginning the respondent had been complaining of default for 25 months. This could easily be calculated by taking into consideration By the rate of rent and the arrears mentioned in the application. It. Therefore, cannot be contended that the respondent has varied the proof from the pleading or that the default on the basis of which ejectment has been granted was not pleaded, and therefore, the appellant did not have any fair opportunity to meet this case.
6. ' Mr. Khalid M. Ishaque, the learned counsel contended that as the respondent had refused to accept the rent the appellant was not obliged to deposit it and if there has been some irregularity in depositing the rent the appellant cannot be penalised. Before I take up this contention it would be advantageous to point out that after the respondent's attorney had refused to accept the money order the appellant started depositing rent in Court of the Controller. The learned Controller has taken note that the appellant has not regularly deposited the rent in Court and has committed default) on several occasions which has been specified in the following manner : "For example he has deposited the rent for August, 1977 on 15th November, 1977 under Exh, 0/9 and similarly the rent for September, 1977 was deposited on 15th December, 1977, for October, 1977 the rent was deposited on 17th January, 1978, for November, 1977 the rent was deposited on 8th March, 1978 and for December, 1977 the rent was deposited on 20th May, 1978.
7. ' The learned counsel for the appellant has contended that the irregularity in depositing the rent in Court, in these circumstances, in which the appellant was placed cannot be treated as a default, because firstly, the appellant was not obliged to deposit the rent after the respondent had refused to accept the rent secondly, that while depositing rent in Court under section 13(2), explanation 2 the tenant is not obliged to deposit the rent on due dates when rent is payable. In this regard reference may be made to section 13(2), Cl. (i) under which the Controller is empowered to eject a tenant if he has not paid or tendered rent due in respect of the building or rented land within 151 days after the expiry of time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement within 60 days from the period for which the rent is payable. An explanation to this subsection (2) is added which provides that the rent remitted by money order to the landlord or deposited in the office of the Controller, having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered. This explanation has been added to clarify that if the rent is remitted through Money Order to the landlord or deposited in Court, the tenant will not be deemed to have defaulted in payment of rent. These modes of tender have been legalized and have been accepted and treated as proper tender.
8. Therefore, if a person has been remitting rent, through money order or depositing in Court, he cannot be said to have defaulted in payment of rent. The question, however, arises is, whether the rent should be paid regularly in terms of section 13 (2) sub-clause (i) which prescribes time for tender of rent. It is well-settled that object of an explanation is not to vary or alter the main section.
9. It merely provides clarification to what has been stated in the section. Therefore, it is not possible to argue that by this explanation it can be spelt out that if tenant is depositing rent in Court or remitting through money order, he is not obliged to comply with the duty cast upon him by provision of section 13 (2) sub-clause (i) In my opinion tender of rent in whatever mode may be, should be within the prescribed time. The learned counsel for the appellant has contended that the Controller is not the agent of the landlord, and, therefore, parti cularly as the respondent had refused to accept the rent there was no burden on the appellant to regularly deposit or tender the rent. Reference has been made to Muhammad Siddique v. Abdul Hameed where it was admitted by the landlord that the rent was duly tendered and was refused and it was held that "section 13(2Xi) enjoins upon the tenant to pay or tender rent to the landlord. If a landlord chooses not to accept the rent so tendered the tenant cannot be made to suffer for such conduct on the part of the landlord. It would not be correct to hold under such circumstances that default had been committed, The tenant stands absolved of his responsibility under the law when he tenders the rent due".
10. ' This case is completely distinguishable from the present one, because in the present case, the question is that after the refusal the tender of rent was not in accordance with section 13(2) (i). It is correct that so far the alleged default from June, 1976 to October, 1976 is concerned the appellant cannot be penalized as during this period the rent had been tendered and admittedly refused by the respondent. The question for consideration is whether after this period any default has been committed by the appellant, while depositing rent in Court. Mr Muneer-ur-Rehman the learned counsel for the respondent has contended that even if the landlord refuses to accept the rent it is the duty of the tenant to tender it on each successive month. In this regard reference has been made to Yousaf Shah's case where it was held : "It is well settled law that mere refusal of the landlord to accept the rent tendered on an earlier occasion does not absolve the tenant of his continued liability to pay or tender the same for each successive month."
11. ' This clearly indicates that even on refusal to accept the rent by the landlord the tenant is not absolved of his liability to pay the rent every month. He has to tender it for each successive month.
12. Explanation 2 to section 13(2) provides a mode for tender of rent where the landlord may refuse to accept the rent. If a tenant chooses in such circumstances to deposit the rent in Court, which should be treated as a proper tender, then logically the tenant has to abide by the conditions relating to time when the rent is to be paid. It has not been denied in evidence, nor in the argument that the deposit of rent by appellant during August, 1977 to December, 1977 has been irregular and not within 60 days from the period for which the rent was payable. In these circumstances, the Controller was justified in holding that the appellant has committed default.2 3 ' Mr. Khalid M. Ishaque the learned counsel for the appellant has contended that from the entire record it is clear that the appellant had regularly been paying the rent and it was due to refusal of the respondent that he had to deposit it in Court, and in these circumstances it should be concluded that the default was not deliberate and the Controller should have exercised discretion in favour of the appellant. In this regard, the learned counsel has relied on Syed Masood Hussain and others v. Muhammad Saeed Khan where it was held that 'even if the petitioner/appellant had succeeded in proving any default, I would not have hesitated in the circumstances of the case to exercise discretion in favour of the respondent for the reason that they have all along been making genuine attempt to pay the rent. 'This case is completely distinguishable on facts with the present case. In the present case, the defaults committed by the appellant in deposit of rent have not been explained at all. It has not been proved that such defaults were due to reasons beyond the control of the appellant and were not wilful and deliberate. You past regular performance of a tenant in payment of rent may to some extent influence the discretion of the Controller in waiving the future default provided such default is not wilful, deliberate and intentional and has duly been explained by the tenant. No such attempt has been made by the appellant and, therefore, he has failed to establish that the default has not been committed. In fact the appellant has been justifying the deposit of rent irregularly by contending that there was no legal obligation on the appellant to deposit th rent in Court regularly and each successive month. It, therefore, follows that the irregular deposit of rent in Court was a deliberate act of the appellant.
13. Mr. Muneer-ur-Rehman, the learned counsel for the respondent has contended that the Controller, should have passed an order of ejectment on other grounds mentioned in the application which were duly proved. The right, to raise this contention is supported by Mohammad Ashraf v.
14. Mohammad Almas where it was held that as under the Rent Restriction Ordinance no specific provision has been made for filing cross-objection or cross-appeal, it is open for the party who is not aggrieved with the order of the Controller to support it by stating that the ejectment order could have been passed on other grounds also. The respondent in his evidence has only stated that premises is required by him for his own use as he was to be retired. This contention was made on 7th July, 1979. In the cross-examination, he has denied the suggestion that he does not want to come and stay here in Pakistan permanently. He has produced a letter from his employers, in which it is stated that he will have the option to retire on the completion of 60 years in April, 1982.
15. This evidence is hardly sufficient to establish the respondent's claim of personal requirement and bona fide use and occupation. The other ground pressed by the learned counsel for the respondent is that the appellant had made unauthorised construction, and therefore, he is liable to be ejected. The complaint about unauthorised construction is that some asbestos sheets have been put by the respondent and other unauthorised construction has been made. The respondent has failed to establish that the nature of construction alleged by him has in any manner or is likely to impair materially the value or utility of the property. This plea was, therefore, rightly rejected by the Controller. For the aforestated reasons the appeal is dismissed. The appellant is allowed two months' time for handing over vacant possession of the disputed premises to the respondent. PLD 1981 Kar. 150 PLD 1976 Kar. 696 1975 SCMR 464 PLD 1965 Lah. 11 PLD 1981 Lah. 524 5 1 2 3 4 5