1. ' The dispute relates to 5 shops on plot No,9 Block 3 Sub-Block E, Nazimabad, Karachi which were let out .By the respondent to the appellant on monthly rent of Rs,400. The parties had entered into an agreement in the year 1967 which was for a period of 11 months. The respondent filed ejectment application on 11-3-1979 on the following grounds:
(1) Non-payment of rent from 1-1-1978 to 28-2-1979.
(2) Subletting to one Muhammad and another.
(3) Material alternations and additions in the premises by the appellant which has impaired the value and utility of the premises.
(4) That the premises is required by the respondent for his personal bona fide use.
2. ' The appellant filed his written statement in which it was pleaded that the rent for the aforesaid period has accumulated as the respondent was not residing in Karachi, had not given his address and further that he had directed the appellant to pay the rent to him. Consequently whenever he used to come to Karachi the rent was paid to him. All other allegations regarding subletting, materially impairing the value and the personal bona fide requirement was denied. As regards subletting it was explained that the hotel run in the premises has been given on contract to one Muhammad and it has not been sublet. The learned Controller held that default has been committed, the premises have been sublet, and the premises is bona fide required by the respondent for his personal use.
3. ' Mr. Hashmi the learned counsel for the appellant has made a preliminary submission that the ejectment application was dismissed for default on 5-4-1980, but by an order, dated 28-8-1980 it was restored on payment of cost of Rs,200 to the appellant. As this cost has not been paid objection was raised on 4-2-1981 that the ejectment application stands dismissed and is not restored but it was not upheld.
4. ' Mr. S.D. Rana, the learned counsel for the respondent has pointed out that no date for payment of cost was fixed by the Controller, and as the appellant's counsel was refusing to accept it an application was made for depositing the same in Court and under the ,orders of the Controller, the cost was deposited in Court on 7=2-1981. According to the learned counsel there is sufficient compliance with the order of the Controller and as time has been extended by the Controller before the conclusion of proceedings for this technical objection raised by the appellant the ejectment application cannot be dismissed. The objection raised by the learned counsel for the appellant is very technical. Apart from the fact that the Controller in his discretion has extended the time for depositing the cost, one aspect of the case cannot be ignored that, as held in 1983 CLC 2994, the Controller had no jurisdiction t impose cost. Therefore, if any technical default has occurred in compliance with such an order it cannot warrant dismissal of ejectment application.
5. According to Mr. Hashmi the order for restoration was a composite inadvisable order and if a part of order granting cost is- not valid the entire order is vitiated and no order of restoration exists in the eyes of law. The learned counsel has referred to PLD 1965 Kar.
367. In this judgment an order passed by the Controller under section 13(e) West Pakistan Urban Rent Restriction Ordinance for deposit of arrears of rent and future rent was under consideration. As in the order passed for deposit of arrears of rent and future rent, there was an illlegality, it was held that the order under section 13(6) was an indivisible order and the illegality vitiated the entire order.
6. The nature of order considered in that judgment was completely different from the order passed in the present case. As for non-compliance of the order under section 13(6) tenant is penalized if any illegality in the order vitiates the entire order and no penalty can be imposed for its non- compliance. The question here is completely different. For non-compliance of the order of restoration passed in this case no penalty can be imposed. Further, orders regarding restoration and payment of cost can be treated as divisible, separate and independent from each other.
7. Now coming to the merits; the learned counsel for the appellant has submitted that the appellant had been a tenant for the last more than 12 years without any complaint. It was contended that the respondent was residing outside Karachi and had not given his address to the appellant and had also directed him to pay the rent, whenever he came to Karachi and as he had remained outside Karachi the accumulation of rent did not amount to a wilful default. The burden entirely falls on the appellant to establish these facts. The appellant has examined his attorney, while the respondent has examined himself. There is word against word. No independent and corroborative evident- has been produced by the appellant to show that the respondent had directed him to pay the rent to him alone whenever he came to Karach and in no other manner. On the other hand, the respondent has denied the so-called practice or instructions issued and attributed to him. The learned counsel for the respondent has referred to the statement of the appellant's attorney that he had gone to the respondent to pay the rent before ejectment application was filed at his residence which is adjacent to the respondent's shop but he refused to accept it. This residence at Karachi which was known to the appellant. Even otherwise if the contention of the learned counsel is accepted to be correct, the fact remains that any practice to pay accumulated rent can hardly, afford a valid defence. In this regard reference can be made to 197 SCMR 598, 1980 SCM R 601 and 1984 SCM R 32. In view of the rule laid down by the Supreme Court, the defence put up by the appellant cannot be treated to be a valid defence which may exonerate the appellant from the statutory duty to pay the rent every month. The law has taken into consideration the rent and for that purpose tender of rent through money order and by depositing in Court have been treated to be a legal tender. These two courses were open to the appellant. Even if the address was not known to the appellant he could have deposited the rent in Court which he did not do. In these circumstances the finding of the learned Controller that the appellant has committed default is un-exceptionable.
8. The second ground for ejectment is that the appellant has sublet the premises to one Muhammad and another. The respondent has made this averment in his application, as well as affidavit of evidence. The fact has been denied by the appellant, but he stated that the hotel has been given on contract. In this cross-examination, the respondent has stated that the appellant is running the hotel, there are several employees of the appellant and it has been given to Muhammad on contract. Mr. S.D. Rana has contended that it was the duty of the appellant to have established in what capacity Muhammad is occupying the premises. In this regard the learned counsel has referred to 1982 CLC 1942. The averment made by the respondent are hardly sufficient to establish subletting. There is no evidence on record to show that the business has been given on contract such contractor has any interest in the tenancy. In the state of scanty and uncertain evidence the subletting has not been proved and the finding of the learned Controller on this issue is set aside.
9. ' The third ground on which the ejectment has been granted is personal bona fide requirement of the respondent. This statement has been made in paragraph 6 of the application and has ,been repeated in para.5 of the affidavit of evidence. The respondents has stated that he requires the premises for his personal use and for his children. In his evidence, he has explained that having settled his land he wants to do business, which previously, he had been doing in Karachi. No further details of the business, or the nature of business which he wants to start or even the details of children for whom he requires the premises has been given.
10. ' Mr. S.D. Rana relying on PLD 1982 Kar. 532 has contended that the statement made in the application has been corroborated by the statement made in the affidavit of evidence which has not been shaken in cross-examination, and therefore, the personal requirement of the respondent has been established. Considering the nature of the evidence and the averment made in the affidavit it is hardly sufficient to establish the personal bona fide requirement of the respondent. I am, therefore, not inclined to uphold the finding of the learned Controlled on this issue as well. In the result on the ground of default, the appeal is dismissed. The appellant is allowed four months time to hand over vacant possession to the respondent.