' This is an appeal against the order dated 27th April, 1981 passed by the learned 10th Senior Civil Judge and Rent Controller, Karachi in Rent Case No.139 of 1975, declining the appellant's application for ejectment filed on the ground of default.
' The brief facts leading to the filing of the above appeal are that the present appellant filed the aforesaid rent case on the ground of default for the month of January, 1973 and also for the months of June and July, 1973, the rent of the latter two months was refused by the appellant for the reason that instead of tendering Rs.570 the respondent tendered rent amounting to Rs.530 after adjusting an alleged sum of Rs.40 paid. The appellant's above application was resisted by the respondent inter alia it was pleaded that there was no default and that the rent for the month of January was paid in cash in lieu of the dishonoured cheque to the appellant through. Chowkidar, namely, Sikandar. The learned Rent Controller on the basis of the pleadings of the parties framed the following two issues:-
(1) "Whether the opponent has committed default?
(2) What should the order be?"
' The apellant in support of the application examined her son S.M. Yahya Exh. 1, whereas the respondent examined himself. The parties also produced a number of documents. The learned Rent Controller after hearing the parties by his order under appeal held that there was no default and, therefore, dismissed the above application. The appellant being aggrieved by the above order has filed the present appeal.
2. (a) In support of the above appeal Mr. Rehmat Ellahi, learned counsel for the appellant has vehemently urged that since admittedly the respondent had paid rent for the month of January, 1973 through a cheque, which was dishonoured there was default for the above month and that the rent for the months of June and July, 1973 was properly refused by the appellant as the respondent failed to tender the full amount namely, Rs.570, and, therefore, the appellant was not bound to accept a lesser amount than what was due.
(b) On the other hand Mr.Muhammad Zaki Ahmed, learned counsel for the respondent has contended that even if it is to be assumed that there was default for the month of January, 1973 and that the respondent had tendered Rs.40 less than what was due rent for the months of June and July, 1973, there would still be no default as a sum of Rs.500 was lying with the appellant under the expired tenancy agreement dated 1-1-1971, which was for a period of 11 months, Exh.
2.
3. I have gone through the evidence and I find that the rent for the month of January, 1973 was paid by the respondent through a cheque dated 12-2-1973 Exh.
5. The above cheque was dishonoured, which is indicated by Exhs. 6 and 7, which are two slips of the bank returning the cheque. The receipt for the month of January, 1973 Exh. 8 indicates that the rent for the above month was paid through the above cheque. The plea set up by the respondent in the written statement as mentioned hereinabove was that the rent for the month of January, 1973 was tendered by him in cash in lieu of the above cheque through Sikandar Chowkidar of the appellant. The learned Rent Controller has believed the above plea of the respondent on the ground that the rent receipts for the subsequent months were issued by the appellant without any protest. I am not inclined to concur with the above finding of the learned Rent Controller. In my view, as the cheque was dishonoured it was incumbant upon the respondent to have proved the payment of rent for the above month of January, 1973. The appellant had sent a notice, dated 5-3- 1973 Exh.10 to the respondent, which according to the postal authority was refused. Whereas according to Mr. Mohammad Zaki Ahmed, learned counsel for the respondent the above notice was addressed to a wrong person i.e. it was addressed to Sheikh Abdul Latif instead of Mohammad Ahmed Latifi. However, another notice, dated 25-7-1973 Exh.17 was served on the respondent. It may be mentioned that in both the above notices the appellant had stated the factum that the above cheque was dishonoured, but no reply was sent by the respondent to the above second notice, which was admittedly received by him. In my view the respondent's bare averment that rent for the month of January, 1973 was paid to Chowkidar Sikandar in cash in lieu of the above dishonoured cheque is not sufficient to discharge A the burden of proof of payment. It has not been stated by the respondent on what date or in which month the above cash payment was made.
' Adverting to the question, whether the respondent was justified in tendering rent for the months of June and July, 1973 amounting to Rs.530 instead of Rs.570, reference may be made to the case of Mrs. Hazarbai Merchant and another v. Muhammad Ismail, 1984 SCMR, 406 in which the Hon'ble Supreme Court has held that a tenant is not entitled to adjust even the amount of tax paid by him without the order of the Rent Controller. In this view of the matter there was default.
4. (a) However, the question which requires consideration is whether factually there was default as from a receipt, dated 1-1-1971, which is on record, of the trial Court, it is evident that the appellant had received a sum of Rs.500 as a security deposit against the above tenancy agreement, dated 1-1-1971 Exh. 2, which was for a period of 11 months. In terms of the Supreme Court judgment in the case of Mohammad Yousuf v. Abdullah PLD 1980 SC 298, the respondent had become a statutory tenant on the expiry of the above period of 11 months and the appellant had become liable to refund the above security deposit of Rs.500. This amount was lying with the appellant in trust. Reference may also be made in this behalf to the case of Amir Ali v. Mrs. Alima Ahmad, PLD 1981 Kar. 15n.
(b) However, it was urged by Mr. Rehmat Ellahi, learned counsel for the appellant that since the respondent had not raised any plea in the written statement claiming the adjustment of the above sum of Rs.500, he cannot be permitted to press into service the above plea in this appeal. In furtherance of his above submission, he has referred to the following cases:-
(i) Nasim Shah v. Muhammad Ali Batalvi 1984 CLC 3157, in which in a second appeal the tenant, who was the appellant attempted to meet the finding of the two Courts below on the question of personal requirement by relying upon the deposition of his own witness to the effect that the landlord wanted to dispose of the house, and, therefore, there was no bona fide personal require - ment. A learned Single Judge of the Lahore High Court declined to entertain the above plea in the second appeal on the ground that the above plea was never alleged by the appellant in his written statement. It was also observed that the principle secundum allegata probatta, will be applicable.
(ii) Lalji v. Muhammad Ibrahim 1983 CLC 3051. In the above case the defence of the tenant was struck off on the ground of default of the non-compliance of a tentative rent order. The tenant had relied upon the tenancy agreement of 3rd August, 1977 and had not made any reference to an earlier tenancy agreement of 1974 under which a deposit of Rs.500 was made. The learned Single Judge of this Court declined to entertain the new plea on the basis of the aforesaid earlier tenancy agreement, which was not referred to by the tenant in the written statement and the order of striking off defence was maintained.
(iii) Shaikh Muhammad Saeed v. Mst. Saleha Khatoon 1983 CLC 2039, in which I have held that the Rent Contrc'ler while considering an application for striking off defence on the ground of non- compliance of a tentative rent order is not required to reopen the question of adjustment of the security deposit, which was already declined by him while passing the tentative rent order.
(iv) Manzoorul Haq v. Taj Bibi 1983 CLC 1934. In the above case a learned Single Judge of this Court relying on the case of Mirza Abdul Aziz Beg v. Mushtaq Ahmed Shaikh, 1980 SCM R 834, held that a fixed deposit as a security deposit was not liable to be adjusted against the current rent. It may be pointed out that the learned Single Judge had not apparently noticed the fact that in the aforesaid Supreme Court ease the tenancy agreement under which the security deposit was paid, had not expired.
(v) Abdul Qadir v. Mst. Parveen and 3 others 1983 CLC 1451, in which a learned Single Judge of this Court declined to entertain a plea that the landlord had no means to reconstruct the building as no such plea was raised before the learned Rent Controller and the ejectment order was granted on the ground of bona fide reconstruction.
(c) On the other hand Mr. Muhammad Zaki Ahmed has referred to the following cases:- (0 Muhammad Badal alias Mofizuddin v. Muhammad Islam Siddiqui 1984 CLC 2086, in which a learned Single Judge of this Court while considering the question of default held with reference to Order VII, rule 3, C.P.C. that the Rules of pleadings contained in Code of Civil Procedure were not strictly applicable in the rent proceedings.
' However, Mr. Rehmat Ellahi, learned counsel for the appellant has submitted that in the above Karachi' case in the written statement the plea of deposit was raised, and, therefore, the case is distinguishable.
(ii) Bashir Ahmed v. Mst. Zubeda khatoon 1983 CLC 390. In the above case the appellant had raised the question of jurisdiction of the learned Rent Controller before me in the first rent appeal by urging that a saw mill is not covered by the definitions of building, land, and premises given in the Sind Rented Premises Ordinance, 1979, which was opposed by the respondent. I have held that the question of jurisdiction can be raised even at the appellate stage if no investigation of fact is involved..
(iii) A.S. Mughal v. Mst. Khurshid Azmat All PLD 1982 Kar. 406, in which the tenant for the first time raised the plee in the first rent appeal before the High Court that a landlord was not entitled to apply for ejectment on the ground of personal requirement of his/her daughter. The above plea was opposed by the Advocate for the landlord. However, a learned Single Judge held that the appellant i.e. the tenant was entitled to raise the plea of maintainability of the application as it was a legal issue.
(iv) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690. In the abov case B.Z. Kaikaus, J. observed that "a party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party."
(v) The Official Liquidator of M.E. Moola sons Ltd. v. Perin R. Burjorjee AIR 1932 P C 118, in which it was held by the Privy Council when a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon the facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.
5. The cases relied upon by Mr. Rehmat Ellahi referred to hereinabove have no direct bearing, but some of the cases cited by Mr. Muhammad Zaki Ahmed, learned counsel for the respondent directly touch upon the point in controversy. I am inclined to hold that in a rent proceeding the rules of pleadings cannot be applied strictly. If a plea can be spelt out on the basis of an admitted document on record or proved fact, which goes to the root of the point in controversy, the first appellate Court in a rent appeal in order to do complete justice will be reluctant to overrule such a plea by pressing into service the strict rules of pleadings.
It may be observed that in a case of default the question in issue before the learned Rent Controller as well as before the first appellate Court would be, whether factually default was committed or not. In order to arrive at a proper/correct conclusion, the Court can take into consideration the evidence on record as a whole. It has been proved that a sum of Rs.500 was received by the appellant as a security deposit against the rent agreement, dated 1-1-1971 Exh. 2, which was only for a period of 11 months (which fact has not been denied by the appellant before me). In view of the pronouncement of the Supreme Court in the above case of PLD 1980 SC 298, the appellant had become liable to refund the above amount on the expiry of the period of 11 months on 30-11-1971 and, therefore, his position was of a debtor for the purpose of payment of the above amount to the respondent. Factually there was no default if the rent for the month of January, 1973 and the aforesaid sum of Rs.40 would have been adjusted against the above sum of Rs.500 as there would have still remained a balance of Rs.175 with the appellant.
6. I am, therefore, in agreement with the conclusion of the learned Rent Controller that there was no default though on a different ground. The appeal is, therefore, dismissed, but there will be no order as to costs.