' This appeal is directed against the order dated 6-10-1983 passed by the Xth Senior Civil Judge and Rent Controller, Karachi, whereby he dismissed the application filed by the appellants for the eviction of the respondents.
' The facts in brief are that Muhammad Rafiq landlord of the building in dispute leased out the premises to Hafiz Ijaz Ahmad at the monthly rent of Rs. 10 in 1970 the said Muhammad Rafiq filed an eviction application against the respondents under section 13 of the West Pakistan Urban Rent Restriction Ordinance for the ejectment of Hafiz Ijaz Ahmad on the ground of default in payment of rent with effect from May, 1969. The written statement was filed by the tenant denying the allegation made in the application. During the pendency of the proceedings the landlord and the tenant died and their legal representatives were brought on record. The learned Rent Controller framed the following issues:- "(1) Whether the opponents are wilful defaulters in the payment of rent?
(2) What should the order be?"
The landlord in support of his application filed affidavit of Mr. Raees Ahmad and on behalf of respondents Hafiz Shahid Hussain filed an affidavit. The witnesses were cross-examined by the respective parties.
2. After assessm ent of the evidence the learned Rent Controller dismissed the application holding that there was practice between the parties to pay the rent in lump sum. The reason which prevailed with the learned Rent Controller in the impugned order is as under:- "The perusal of receipts Exhs. 1/1 to 1/8 shows that there is not single receipt to have been issued for rent of a single menth, but all the receipts indicate that the rent was paid in lump sum for several months. Therefore, the plea of the opponent, that as per practice rent was paid in lump sum is supported by the documents Exhs. 1/1 to 1/8."
3. It is an admitted fact that the rent as claimed by the applicant in his application was due against the respondents. His contention that he used to pay the rent in lump sum is accepted by the learned Rent Controller. He is the tenant of the appellant for a fairly long time but only eight receipts have been filed by him in support of his contention. The landlord had disputed this fact that there was an agreement between the parties that the rent would be received by him after intervals in lump sum. The tenant or his legal heirs have not appeared to support the contention and one Hafiz Shahid Hussain has filed his affidavit who is not living in the same premises. He is only related to the tenant. He has no personal knowledge of the allegation made by the respondent in the written statement. His evidence is of no consequence in view of the fact that the tenant or his legal heirs did not file any affidavit.
' The learned counsel for the appellant has referred to PLD 1984 SC 32 wherein it has been observed that the alleged practice of the attorney of the landlady of collecting the accumulated rent is of no avail in explaining these delays.
' The learned counsel for the respondent has submitted that the respondent has taken a specific plea in the written statement that the landlord did not carry out the urgent and necessary repairs in the tenement since the very inception. He approached the Karachi Municipal Corporation to seek their permission to carry out the said repairs and accordingly it was accorded to him. The tenant carried out necessary repairs in the tenement in question and invested a sum of Rs.1,070 on the said repairs. The expenditure was duly certified by the relevant authority of K.M.C. The learned counsel, therefore, contended that this amount was adjustable towards the arrears of rent as the repairs have been conducted by the respondent on the direction of the K.M.C. He has relied upon section 12(2) and (3) of the Sind Rented Premises Ordinance, 1979. According to these provisions where any authority empowered by a law for the time being in force has required landlord to make such repairs within such period as may be specified by such authority and the landlord has made default in this behalf, such authority may require the tenant to make such repairs. Where the tenant has made the repairs as aforesaid the authority ordering the repairs shall, after due verification of the details of the expenditure incurred by the tenant, certify the cost of repairs and the tenant may thereupon deduct the amount so certified from the rent payable to the landlord.
No notice was served upon the landlord to make the necessary repairs and it is on the application of the respondent that such permission was granted. The default was claimed by the appellant with effect from May, 1969. The application for eviction was filed in January, 1970. The notice is dated 28-4-1971 and the certificate issued by the K.M.C. is dated 15-8-1972 i.e. after the institution of the application by the landlord. This amount could not be adjusted towards the arrears of rent as the default had already been committed by the respondent and this application was moved by the respondent during the pendency of the application of ejectment filed against him.
' The learned counsel for the respondent has stated that he has specifically raised this plea in the written statement but no issue was framed by the learned Rent Controller. Non-framing of an issue on the pleadings of the parties is not fatal to the proceedings. Even otherwise as stated above the expenditure incurred by the respondent would not be considered a ground for the rejection of application moved by the landlord. There is thus no force in the contention raised by the learned counsel for the respondent.
4. In the result the appeal is allowed. The order of the learned Rent Controller is set aside and the application moved by the applicant for the eviction of the respondent is allowed with no order as to costs. The respondent is allowed four months' time for handing over vacant possession of the premises in dispute.