1. ' This appeal calls in question the order passed by the VIIIth Senior Civil Judge and Rent Controller, Karachi, dated 7-5-1983.
2. ' The facts of the case are that the appellants are the owners and landlords of building situated on Plot No.3/14, Ismail Plaza, Shahrah-e-Liaquat, Karachi, having purchased the same from his previous owner under Registered sale-deed, dated 29-12-1977. The respondent is the appellant's tenant in premises No.G-2 situated in the same building at a monthly rent of Rs.105. After purchasing the building the appellants on 3-6-1978 sent registered A/D notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959, intimating the respondent that they had purchased the building from the original landlord and through the said notice upon the respondent to pay rent to the appellants from first January, 1978 onwards which was duly received by the respondent on 7-6-1978. Thereafter, the appellant filed an eviction application against the respondent on 3-5-1980 before the learned Rent Controller, averring therein that the respondent had failed and neglected to tender or pay rent from 1-4-1979 till the date of filing of the application.
3. The respondent filed written statement wherein it was stated that the building in question was subject-matter of a dispute in. Respect of which L.P.A. No.44 of 1969 had been filed in the High Court and the Nazir of the High Court had been appointed receiver of the property and rent was paid to him upto 31-3-1979. It was further averred by the respondent that rent from April, 1979 onwards was being deposited in Court in Miscellaneous Rent Case No.2820 of 1979, and, therefore, no default had been committed. By the respondent.
4. ' The learned Rent Controller after framing four issues in the case and recording evidence thereon found that no case for ejectment was made out and consequently rejected the eviction application.
5. ' I have heard Mr. Khurshid Anwar Shaikh, learned counsel for the appellants and Mr. S.S. Akbar, learned counsel for the respondent.
6. ' Admittedly, the appellant has now set up a different case in this appeal as the same is completely at variance with the case set up by him before the learned Rent Controller. The stand taken up by Mr. Khurshid Anwar Shaikh, learned counsel for the appellant has been that the notice under section 13-A (Exh. 5/A) was sent by the appellants to the respondent on 3-6-1978 which was received by the latter on 7-6-1978. Since rent was claimed by the appellants from first January, 1978, the same should have been tendered by the appellants within thirty days after receiving notice from the appellants. However, the respondent in his reply to the notice (Exh. 5/B) informed the appellants that rent for the premises had been deposited in the High Court upto March, 1979.
7. On the basis of this it was argued by Mr. Khurshid Anwar Shaikh that in any case since as per his own admission, the respondent failed to tender or pay rent to the appellants within thirty days of 7- 6-1978 on which date notice under section 13-A had been received by the respondent from the appellant, the respondent in any case had committed default in payment of rent. The argument of Mr. B.S. Akbar learned counsel for the respondent on the other hand was that the appellant cannot set up a case different than what was set up by him before the Rent Controller and since the case of the appellants before the Rent Controller was that the rent had not been received by them from first April, 1979, section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 was not attracted at all in the instant case. The second argument was that since rent from April, 1979 onwards was being deposited by the respondent with the Rent Controller in the above-said Miscellaneous case from 30-5-1979, therefore, in view of the grace period which was available to the respondent, no default had been committed by the respondent.
8. ' I find lot of force in Mr. S.S. Akbar's arguments. Admittedly the case set up by the appellant before the learned Rent Controller was that the respondent had failed to pay him rent from 1-4-1979 till the filing of the eviction application. Although this has not been denied by Mr. Khurshid Anwar Shaikh, but the argument of the learned counsel was that the appellants were misled by the respondent as the respondent had stated in his reply, dated 26-6-1978 (Exh. 5/B) that rent up to March, 1979 had been deposited by him in the High Court by a cheque, dated 15-4-1978. Further plea of the appellant was that when affidavit-in-evidence on behalf of the respondent was filed before the learned Rent Controller, it came to light for the first time that no rent was deposited in the High Court by the respondent as alleged by him in the reply. Be that as it may, but the appellants after having learnt the actual facts should have amended their application in view of the new fact coming to their knowledge. However, the appellants failed t do so, therefore, now they cannot be permitted to set up a new case before this Court. According to their case before the Rent Controlle admittedly the respondent was shown to be in arrears of rent with effect from 1-4-1979. Against this the plea of the respondent was that from 30-5-1979 onwards rent was being deposited by him with the Rent Controller. Although there is no dispute about this factual aspect of the case, but the argument of Mr. Khurshid Anwar Shaikh was that even if the factual position is conceded still the respondent had committed default in payment of rent because he failed to either tender or pay rent to the appellants but instead deposited the same with the Rent Controller. Although the plea taken by Mr. Khurshid 'Anwar Shaikh appears to be attractive on first impression, but the explanation given by the respondent is that since the ownership of the appellants vis-a-vis the property in question was being disputed by some tenants who had filed writ petition (No. 67 of 1978) in the High Court, therefore, the respondent did not take risk and make direct payment to the appellants.
9. ' Considering the circumstances of the case, the explanation given by the respondent cannot be lightly ignored as it has not been disput by Mr. Khurshid Anwar Shaikh that a writ petition was pending in th High Court, wherein the ownership of the appellant had been disputed. The explanation given by the respondent, therefore, appears to b plausible because when the very ownership of the premises was I dispute the respondent was not expected to take risk and pay rent the appellants. Therefore, although technical default might have bee committed by the respondent, but the same cannot be called wilful, specially when the respondent wasted no time in depositing rent wit the Rent Controller from 30-5-1979. It also does not appeal to reaso that the respondent would risk his ejectment from the premises althoug he was depositing rent regularly with the Rent Controller. The appellants have, therefore, failed to prove that any wilful default had been committed by the respondent.
10. ' For the aforesaid reasons, the impugned order is maintained and the appeal is dismissed. There will, however, be no order as to costs, keeping in view the circumstances of the case.