1. ' This matter has been called twice since morning. The learned counsel for appellant is present while none is present for respondent. It is 11-20 a.m. I have proceeded with the case on merits.
2. ' This appeal has been filed challenging the order passed by the IInd Senior Judge/Rent Controller, Karachi (Central) in Rent Case No, 2180 of 1985 directing the ejectment of the present appellant.
3. Briefly the facts are that the appellant is the tenant in the two shops situate in Hadi Market, Nazimabad, Karachi, hereinafter referred to as`disputed shops' which were originally owned by the deceased husband of respondent. The deceased husband of the respondent had two wives i,e, the present respondent and Mst. Khatoon Hadi, who had a dispute over the title of the property in dispute. The present respondent had served the appellant with a notice under section 18 of Sindh Rented Premises Ordinance, 1979 hereinafter referred to as the Ordinance, sent on 19-2-1985 and thereafter instituted the present rent case on 30th May, 1985 seeking his ejectment on the ground of default in payment of rent from 26-2-1985 to 30th May, 1985. ' However, during the pendency of the rent case it transpired that the two wives of the deceased owner had a dispute amongst them for which a title suit had also been filed which was ultimately compromised between the parties whereby the present respondent became entitled to the said two shops in dispute. Consequently the respondent served another notice under section 18 of the Ordinance on the appellant on 11-4- 1987 demanding the future as well as arrears of rent. The respondent also moved an application before the Rent Controller seeking amendment in the rent case which permission was granted and consequently amended memo. Of application for ejectment was filed on 12-1-1988 incorporating subsequent cause of action said to have accrued on 11-4-1987.
4. ' The appellant had filed his written statement denying the claim of the respondent. The learned Rent Controller had received the affidavit-in-evidence of the Attorney of the present respondent firstly before the amendment in rent case was allowed and secondly after such amendment was allowed. The present appellant had also filed his own affidavit-in-evidence. The Rent Controller after hearing the arguments of the parties settled the following issues for determination:
(1) Whether the ejectment application is maintainable?
(2) Whether there exists any relationship as to landlord and tenant between the parties?
(3) Whether opponent/tenant has committed any default in respect of the payment of rent?
(4) What is the rate of rent in respect of tenement in question?
5. ' The trial Court answered the issues in favour of the present respondent and directed the ejectment. Being aggrieved, the appellant has preferred this appeal.
6. ' I have heard Mr. Manzurul Hach the learned counsel for appellant. At the very outset the learned counsel has submitted that the order passed by the Rent Controller is not sustainable as the same is based on a cause of action different than the one on which the present case was instituted. He has also challenged the orders of the Rent Controller allowing the amendment in the rent case. The learned counsel has submitted that in the present case the respondent had instituted the rent case on the basis of a default in payment of rent for the period commencing 26-2-1985. The rent case was instituted on 30th May, 1985. He has further submitted that admittedly the title of the respondent was in dispute during that period and it was only in March, 1987 that the present respondent became entitled to the shops in dispute and, therefore, the rent case filed by her in May, 1985 on the face of it is not maintainable in law. He has also referred to the cross-examination of Mrs. Zarina Shamsi the Attorney of the respondent who in her cross-examination has stated that the respondent became owner of the case premises after the settlement with the other wife of the deceased and became entitled to realise the rent after March, 1987. This admission itself goes to show that the respondent was not entitled to receive the rent in 1985 and, therefore, the very rent case was not maintainable and thus the same should have been dismissed in view of this admission.
7. ' It may also be observed that the case of the respondent as set up after the amendment allowed by the Rent Controller is that the appellant has committed default in payment of rent after 11-4- 1987 when he was served with a fresh notice under section 18 of the Ordinance. This aspect of the case could not be considered in the rent case instituted initially nor such amendment could have been allowed to incorporate such relief which is based on a cause of action having accrued subsequently during the pendency of the previous action. The provisions of Order VI, rule 17, C.P.C., which of course are not directly applicable to the rent proceedings as the Rent Controller has to adopt his own procedure but keeping the principle in mind the same can be made applicable by way of analogy. The provision of Order VI, rule 17, C.P.C. Which authorises the Court to permit the amendment in pleadings does lay down certain curtailment inasmuch as no such amendment would be allowed to a party to set up a new case or introduce a fresh cause of action. In the present case as is apparent from the face of the record the respondent was not entitled to recover the rent from February, 1985 and, therefore, the rent case filed by her was not maintainable and ought to have been dismissed straightaway on the very admission given by her Attorney in her cross-examination. As regards the subsequent default in payment of rent from 11-4-1987, the respondent could have instituted a fresh rent case, if so permissible in law.
8. ' In view of the above discussion, I accept this appeal and set aside the order passed by the Rent Controller with no order as to costs.