1. ' The appellant filed an ejectment application on the ground that the respondent has failed to pay the rent from May, 1975 to January, 1976. The respondent's defence was that he had paid goodwill of Rs.75,000 and the rent was received in lump sum after several months. However, the main defence for non-payment of rent was that in the month of May, 1975 an attachment warrant was received from Karachi Electric Supply Corporation for recovery of Rs.1,674.12 in respect of meter installed in the disputed premises for a period prior to the commencement of the tenancy of the respondent. It was pleaded that the respondent approached the appellant who declined to make payment to Karachi Electric Supply Corporation, and stated that this should be paid by the respondent, and thus he was forced to pay it to save disconnection of electricity supply. Therefore, from May, 1975 onwards he stopped payment of rent. He applied to the Karachi Electric Supply Corporation for instalments which was granted, and the respondent paid in two instalments viz. Rs.800 on 27-11-1975 and Rs.921 on 8-2-1976. In this way he has claimed adjustment for this payment. He claimed that after adjustment of Rs.1,721.08 paid in two instalments the entire rent from 1-5-1975 to 31-1-1976 is covered and the balance remained to the credit of the respondent. It was further pleaded that in spite of this arrangement the appellant turned dishonest, and threatened to file application in November, 1976. Therefore, on 28-2-1976 the respondent sent two money orders of Rs.1,000 each, but the same were not accepted. Thereafter in March, 1976 the respondent received auction notice of the premises from Excise and Taxation Department, as property tax for the year 1975-76 had not been paid. He deposited Rs.362.72 with the Excise and Taxation Department on 29-3-1976. The learned Controller by the impugned order held that in view of the adjustment claimed by the respondent, no default has been committed by him.
2. ' From the pleading it is clear that the respondent has sent up a case that the Karachi Electric Supply Corporation was demanding arrears in respect of the period during which the respondent was not a tenant on threat of disconnecting the supply. The appellant refused to pay it, therefore, he was compelled to make payment and claimed adjustment. In the written statement, it is pleaded that under this arrangement, he stopped payment, but the arrangement under which the parties had agreed was not at all mentioned. In fact it was stated that the appellant had refused to pay the money, therefore, the question of any arrangement did not arise. The appellant has denied that at no stage he had agreed or permitted the respondent to pay the electricity charges, and deduct it from the rent. In these circumstances, the entire burden was on the respondent that the adjustment made by him is valid, legal and binding on the appellant. In this regard the respondent has examined himself. He has specifically stated that the appellant had agreed that he should pay all the arrears of electricity charges and adjust them in the monthly rent payable from May, 1975 but there was no written permission for such payment. This statement hardly proves any arrangement.
3. ' Mr. Naeemur Rehman, the learned counsel for the appellant has contended that the respondent not having pleaded any agreement between the parties, cannot in evidence put up a case of such an agreement. From the pleadings and the evidence it is clear that such an agreement was never pleaded and introduction of this plea in the evidence is completely new. The plea that under an agreement the electricity charges were paid and adjusted is completely contrary to the plea that as the appellant had refused to pay, the respondent was forced to pay the electricity charges and adjust it in the rent. In the first case there is a consent, whereas in the other one there is no consent.
4. Therefore, both the pleas are completely contrary to each other. In 1981 SCMR 1267 it was held that a tenant cannot set up a case of agreement in evidence if a case in its place cannot be set up in the evidence. This is what the respondent has done in the present case.
5. ' The respondent in order to prove his new case has examined himself and one Haroon who stated that in the month of February, 1976 the appellant came to realise rent, when the respondent showed him the payment slips of K.E.S.C. bills and asked him to adjust the arrears of electricity charges, and the applicant agreed to adjust the same. The tenant had offered the balance rent after adjusting the electricity charges, but he stated that he would take it afterwards, and demanded higher rent. Significantly this witness has stated that the appellant was about 45 years old and also stated that he did not remember if he was present in Court. This witness has not explained how and in what circumstances, he happened to be with the respondent in the month of February, 1976. The appellant who was examined in August, 1979 was 61 years of age. These facts discredit the evidence of Haroon. Even if the statement of Haroon is accepted, it only proves that in February, 1976 the appellant had come to realise rent and the respondent demanded adjustment.
6. This proves that till February, 1976 the appellant had not agreed to adjust the bill paid by the respondent.
7. ' From the evidence of the respondent, it seems that he had paid Rs.800 on 21-11-1975, Rs.921 on 18- 2-1976, Rs.45.97 on 19-4-1976, Rs.352.72 and Rs.25 on 25-3-1976. Therefore, upto the month of February, 1976 the respondent had paid Rs.1,694.12 towards electricity charges for the energy consumed by the previous tenant. This amount was adjusted by the respondent without any permission from the appellant. Except under an agreement, the respondent did not have any legal right to adjust this amount in the rent. As the respondent has failed to prove that there was any agreement between the parties, he cannot justify withholding of rent from May, 1975 till January, 1976. From the statement of account of Karachi Electric Supply Corporation filed by the appellant Rs.800 are shown to have been paid on 27-11-1975 and Rs.921 on 18-2-1976, therefore, upto January, 1976 the respondent had deposited a sum of Rs.800 only. If at all the respondent wanted to adjust the rent towards payment, he could do so, only after he had made the payments. Upto January, 1976 he had deposited Rs.1,800. This conduct of the respondent does not justify non-payment of rent which was without the consent of the appellant.
8. ' Mr. Qureshi, the learned counsel for the respondent has contended that the respondent had paid charges which was not his liability and he had done so to avoid disconnection of the electricity.
9. Even if the payment has been made for this reason, the respondent's right to adjust in rent depended on the consent of the appellant. If the appellant did not agree then proper proceedings should have been filed for its recovery. The learned counsel also contended that Excise and Taxation Department had advertised for the auction of the property and in order to save the property from being auctioned he paid Rs.352 and Rs.25 and therefore, he is entitled to be reimbursed. The liability to be reimbursed for such payments, which have been made by the tenant for the benefit of the property can be claimed only if the landlord has agreed to pay it, or the Excise and Taxation Department has issued notice as required by section 14 of the Urban Immovable Property Tax Act calling upon the tenant to pay the dues and adjust it in the rent.
10. Without such requisition voluntarily offering the payment will not entitle the tenant to withhold the rent and adjust it towards such payment. The appeal, is therefore, allowed, and the respondent is directed to vacate and hand over the vacant possession to the appellant within a period of four months.