' The appellant is a tenant of the respondent in respect of a portion of premises bearing No.IV-F- 9/10, Nazimabad, Karachi since 1961. A Rent Case No.2839/1976 was filed in the Court of Rent Controller on the grounds of default in payment of rent for four fnonths viz. March, 1976 to June, 1976, bona fide personal need and materially impairing the value and 'utility of the premises. During the pendency of the said Rent Case another 'Rent Case No.549/78 was filed in the Court of Rent Controller only on the ground of default in the payment of rent for fifteen months commencing from October, 1976 to December, 1977.
2. Both these cases were consolidated. by order dated 2-8-1978 of the Rent Controller and disposed of by one judgment which has been impugned in this appeal.
3. The learned Rent Controller allowed the application for ejectment on the ground of default in both the cases.
4. Learned counsel for the appellant Mr.S.Aminuzzaman contended that there was np default at all in both the cases. Regarding the default alleged in the first Case No.2839/76 he submitted that he had handed over two cheques dated 17-3-1976 and 10-4-1976 to the respondent for the months of March and April, 1976 respectively. In the third week of May, 1976 he came to know through his bankers that the said cheques were not encashed by the respondent. He, therefore, sent the rent for the months of March and April, 1976 in the sum of Rs.900 by Money Order on 24-5-1976, a photostat copy whereof has been placed on record. He further submitted that in the absence of the tenancy agreement. he being a statutory tenant the rent for the month of March, 1976 could be paid by 30th May, 1976, and as such he did not commit any default. Mr.G.M.Dastgir, learned counsel for the respondent did not contest this position.
5. As regards the default in the second Case No.549/78, the admitted position is that on refusal of accepting the rent sent by Money Order, as stated in connection with the first case, the appellant filed a Miscellaneous Rent Case No.252/76 in July, 1976 before the Rent Controller seeking permission to deposit the monthly rent in the Court. The said application was allowed and he deposited the arrears of rent from March to June, 1976 and continued to deposit monthly rent in Court upto September, 1976 in the said Miscellaneous Rent Case. He, however, discontinued depositing rent in the said Miscellaneous Rent Case since October, 1976.
6. Learned counsel for the appellant submitted that the second application for ejectment was not maintainable during the pendency of the' first Rent case as it was barred by res judicata under section 11, C.P.C. In support of his submission he placed reliance on the cases namely,. Ashfaq-ur- Rehman v. Chaudhri Muhammad Afzal PLD 1968 SC 230 and Haji Abdul Karim and another v. Haji Dawood & Co. PLD 1960 Kar. .
532.
7 Section 11, C.P.C. reads as under:- "11. Res Judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression 'former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence ' of a Court shall be determined irrespective of any provisions as to a' right of appeal from the decision of such Court.
Explanation III.-- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating."
8. Mr. M.G. Dastgir points out that no such plea was taken in the Written Statement filed in the subsequent case nor this plea was taken before the Controller during the arguments. However, I allow this plea to be taken by the appellants in this appeal as it is a question of law and can be raised at the appellate stage.
9. Leaned counsel for the respondent in support of the maintainability o the second Rent Case cited a number of cases namely, Yousuf Shah through his brother v. Haji Ghtilam Jan Khan 1975 S.0 M R 464, Sh.Fazluddin Qureshi v. Muhammad Hasan Zuberi PLD 1977 Kar. 418 and Mst. Abbasi Begum v. Mst. Ghulam Fatima 1981 SCMR 752.
10. In the first cases cited above, the Hon'ble Supreme Court held that mere refusal of landlord to accept rent tendered on an earlier occasion does not absolve the tenant of his continued liability to tender same for each successive month.
11. In the second named case it was held that pendency of any proceedings does not absolve the tenant from paying rent.
12. The third case seems to be quite similar to the facts of the present case. The relevant observations read as under: "Learned counsel for the petitioner has not been able to meet the point that fresh application moved by the respondent on 19th April, 1976 was based on fresh cause of action based on non- payment of rent. He faced a serious difficulty on realisation that the plea which could succeed on proof of certain facts relating to previous proceedings before the learned Rent Controller was not raised in the written statement filed by the petitioner. It was also noticed that the plea was not urged in the High Court. After hearing the learned counsel for the parties we are satisfied that the application moved on 19th April, 1976 was based on fresh cause of action and it was not hit by the provisions contained in section 14 of the Ordinance. We have also satisfied that the plea was not raised in the written statement filed before the learned Rent Controller nor was it urged in the High Court. For these reasons (learned counsel has not urged any other point) there is no force in this petition and the same is accordingly dismissed."
13. The second application filed on the ground of default for th period October, 1976 to December, 1977 was based on distinct cause o action because the first application was filed on the ground of defaul for the month of March to June, 1976, whereas the second applicatio was based on the ground of default. for October, 1976 and December, 1977. The provisions of section 11, C.P.C. will, therefore, not b attracted in this case. Even otherwise, the issue raised in the earlie ejectment application had not been heard and decided. The cases cite by the learned counsel for the appellant have also no bearing on the facts of the case before me.
15. The liability to pay the monthly rent in accordance with the provisions of the Sind Urban Rent Restriction Ordinance, 1959 was al continuing month to month liability. T.hus, the subsequent application on subsequent default was as regards default in the second case, it has been admitted in the evidence that the appellant did not pay or tender the rent to the repondent nor deposited the same in Court in the Miscellaneous Rent Case No.252/76 for the period of fifteen months, commencing from October, 1976 to December, 1977. In view of this position, the learned Rent Controller was justified in holding the appellant to be a wilfu defaulter in the subsequent case only and is liable to ejectment. The appeal is, therefore, dismissed with costs.
16. Before parting with the case it may be mentioned that "Cross-objections" had been filed on behalf of the respondent in this appeal. However, the learned counsel for the respondent during hearing o this appeal, did not press them. The Cross-Objections are, therefore, dismissed as not pressed.