1. ' This lInd Appeal is directed against the judgment of the learned District Judge, Sanghar, who had upheld the order passed by the learned Rent Controller, Shandadpur, whereby the defence of the appellant was struck off under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959.
2. ' Respondent bad filed an ejectment application against the deceased Muhammad Azhar who died during the proceedings before the Rent Controller and present appellants were brought on record as his legal heirs. On 11th February, 1975 order for deposit of rent was passed by the Controller and the appellants continued to deposit rent according to law except that the rent for the month of May, 1976 was deposited on 23rd June, 1976 instead of 15th June, 1976. Accordingly the respondent filed an application under section 13 (6) for striking off the defence of the appellant.
3. The appellant filed objections in which it was stated that the appellant No, 1 had gone to deposit the rent before the 15th of June, 1976 with the Nazir, who refused to accept it in conspiracy with one Kadir Bux a relative of the respondent and ex-Reader of the Court. It was alleged that the appellant went to his Advocate who asked him to go and deposit the rent. In this process the appellant went at least three times to the Nazir of the Court, who ultimately accepted it on 23rd June, 1982. The appellant had made an application before the Nazir who tore it off. The Controller asked for the report of the Nazir who denied the allegations and after hearing the parties the defence of the appellant was struck off, which has been upheld by the learned 1st appellate Court.
4. Mr. Syed Madad Ali, the learned counsel for the appellant has contended that the default was not wilful. In order to substantiate his contention the learned counsel for the appellant has contended that the allegation made by him should have been considered by the Controller by giving the appellant a chance to establish it The Controller had called for the report of the. Nazir, and it was the duty of the appellant to have established the allegation made against the Nazir and the respondent. It was open for him to apply before the Controller to summon the , witnesses and, also to examine on this point, but it seems that no step was taken, and, therefore, in these circumstances the grievance of the learned counsel for the appellant that no opportunity was given to the appellant to prove the allegation, is not justified. The Controller cannot sua motu call the witnesses and examine them to establish the point for and against any party. It is the duty of the party to establish its case according to law.
5. ' The next contention of the learned counsel for the appellant is that the appellant was under a bona fide belief that the rent will not be deposited in Court during vacation but being over anxious he went to deposit the same. The fact seems to be otherwise. It was not the over anxiety of the appellant under which he had gone to the Nazir to deposit rent. It was within his knowledge that the rent has to be deposited during vacation and for that reason he went to deposit the same and even insisted the Nazir to accept it which according to him was refused by the Nazir till 23rd June, 1976. Therefore, it is not a case, where the appellant was under a bona fide impression that rent was not being deposited during vacation, and shall be deposited on the re-opening day of the Court.
6. ' The learned counsel for the appellant has referred to PLD 1978 Kar.
898. In this case the tenant was under a bona fide belief that the rent is not deposited during vacations, and therefore, he deposited the same on 15th day of the month of reopening of Court.
7. The learned counsel also referred to PLD 1968 Kar.
521. In this case also the rent was not deposited during vacation under the bond fide impression, and the same was deposited after reopening of the Court. Both these cases are completely distinguishable from the present case. It is pertinent to note that both the Courts below have given concurrent finding of the fact that the appellant had been negligent in depositing the rent in Court and nothing has been brought on record on the basis of which that finding of fact can be set aside.
8. ' The learned counsel for the appellant then contended that in view of section 9 of the General Clauses Act the appellant was entitled to deposit rent on re-opening day of the Court. This contention depends on the determination of the fact that during vacation the rent was not being accepted by the Nazir. No such evidence has been produced to prove this allegation. In fact from the appellant's allegation that the rent was being accepted by the Nazir during vacation, this objection is not sustainable.
9. ' For the above reasons the appeal is dismissed. The appellant is allowed six months time to, deliver vacant and peaceful possession of the premises to the respondent.