ANWAR MANSOOR KHAN, J.- The brief facts of the case are, that, the present appeal has been preferred to challenge the order of ejectment dated 28.2.1987 passed by the IInd Senior Civil Judge and Rent Controller Hyderabad, in Rent Case No. 490 of 1984. The grounds for the allowing the application and ordering ejectment was that the Opponent/Appellant was held to have defaulted in the payment of rent. During the pendency of the Appeal, the appellant expired, and his legal heirs were brought on record. Reference to word "appellant" hereafter shall mean the legal heirs of the deceased Abdul Rehman.
2. It is the case of the appellant that the respondent had sought his eviction on the sole ground that he had defaulted in payment of rent despite the fact that, in the ejectment application No. 490 of 1984, moved before the Rent Controller the respondents had not given any details of the default, where the only statement that had been made in the application was: "since last l2 months prior to the filing of the rent application before the learned Rent Controller bn 26.11.1984."
The appellant (Opponent/Tenant) filed his written statement and denying the allegation regarding the commission of default in the payment of rent, stating that he had deposited the rent in Court since the days of the previous landlord, namely Haji Muhammad Younis Patoli (since deceased) in R.A. No. 208/1984. The appellant in denying the allegation of default had stated in the written statement that, upon service of notice dated 20.5.1984 given under Section 18 of the Sindh Rented Premises Ordinance, 1979, he is reply to the said notice, by a letter dated 7.10.1984 demanded a copy of the title document, with a view to ascertain the proper legal heirs of the deceased/previous landlord. He stated that thereafter he having been satisfied that the applicant/respondent was the teal owner, remitted to rent to the him by money order and upon refusal, started depositing rent in Court in R.A. No. 154/1995.
3. It is the case of the respondent/applicant that the appellant has defaulted in the payment of rent, and that despite the fact that the appellant knew of the death of Haji Younis, and the fact that the respondents were the only heirs, the appellant defaulted in the payment of the rent wherefore the appellant was liable to be ejected and the application thus made was liable to be allowed.
4. Evidence has been led by both these sides, whereby affidavits in evidence were filed and the witnesses were cross-examined. However the appellant has a grievance that after the evidence of the applicant (respondent herein) was led, he filed two affidavits-in-evidence, one his own and the other of another witness and after that he filed a further affidavit-in-evidence with further documents, which was dismissed and the documents were not allowed to be brought on record.
5. The appellant further states that it was stated that in addition to the said additional affidavit the appellant had moved for applications namely:-
(a) Amendment application (Exh:45),
(b) Application for further affidavit-in-evidence (Exh:39),
(c) Application for summoning witnesses (Exh:33), and
(d) Application for late production of documents (Exh:53).
It was argued that all the above applications were dismissed by the Trial Court. As a result of such dismissal, the appellant was denied a fair opportunity to prove, that there was no default in payment of rent.
6. It is the case of the appellant that entire burden of proof regarding the commission of default of the payment of rent is upon the landlord and that as the landlord had neither disclosed the months for which the default in the payment of rent occurred, nor was the death of the previous landlord disclosed, the respondents were to prove and show how and in what manner the l2 months default could be taken into account as against him. He said therefore, that the entire case of the respondent, on the point of default was vague in nature. The application was thus liable to be dismissed.
7. The appellant further argued that no default in payment of rent could otherwise be claimed as, he had paid the Property Tax in respect of the disputed premises on account of the landlord and had produced receipts for the sum of Rs.279/- and that, the rate of rent being Rs.30/- per month, if Calculated for 9 months, would come to Rs.270/-. He states, that therefore, in fact if was the landlord who was in arrears and there was no liability upon him to pay the rent. He said that the rent was liable to be adjusted against the Property Tax paid by him in respect of the said premises.
It was stated further, that even after the death of the landlord, on account of the property for the new landlord, the appellant had paid a sum of Rs.102/- towards Property Tax for 1983r84, 1985-86 on 19.3.1984 and 13.5.1985, each i.e. Rs.204/- for two years, and if such amount would have, been allowed to he adjusted, he states that there would be no default.
8. It is argued by the appellant that no written agreement of tenancy existed between the parties and the payment of Rs.204/- paid after the death of the original landlord would cover more than six months from June to November, 1984. Thereafter, the Fent from January to March, 1985 was remitted by money order and on refusal an application for depositing of rent, being R.A. No. 154/1985 was filed in Court on 31.3.1985. The rent is being since deposited in Court. He states, that, had the Rent Controller taken into consideration the fact of remittance of rent to the previous landlord by money order, the deposit of rent in Court from April, 1984 to January, 1985 in R.A. No. 208/1984 remittance or rent by money order from January to March, 1985 and deposited of rent from February, 1985 onwards in R.A. No. 154/1985 the Rent Controller would have come to a different decision.
9. The respondents have contested the matter and state that the documents and evidence on record is clear. The applications made by the appellant before the Rent Controller were heard in detail and duly and properly dismissed. He however states that even if the said documents are read, there would be no difference in the outcome, however the applications were made to cause the nature of the case to change, was an afterthought and thus intended to cause confusion. He said that the appellant could dot be allowed to bring and plead new grounds that would change the nature of the case. He said that the documents that were sought to be introduced subsequently ought to have been in existence, as they pertained to a period before the filing of the case. He said that the documents that were sought to be introduced subsequently ought to have been in existence, as they pertained to a period before the filing of the case. He said that the introduction of documents could be only allowed when the appellants would be able to show that they were restrained from producing them at the time of the filing of the objections. He said that the objections also did not contain the statement that the property tax was liable to be adjusted against the rent. He said .That if this was so, he would not have deposited the rent during the lifetime of the deceased Mohd. Younis, or after the notice of change of ownership. He said, that, in reply to the notice of change of ownership, the appellants had a|so not taken this position also. He said that this was a new ground being sought to be added after the evidence was led and seeing that it was a clearly case of default. He said that if the property tax was to be adjusted, it would have been done at the time when Haji Mohd. Younis was alive. He said that the rent application was properly allowed, and the appellant was properly evidence.
10. The R&P is on record. I have gone through the application, the objections J the evidence, the various applications and the documents that were sought to be introduced.
11. The appellant moved an application for summoning witnesses on 9.3.1986. This was dismissed on .21.4.1986. The affidavit-in-evidence of Master Abdul Majeed, the appellant was filed on 6-2.1986 and that of Abdul Rehman, the other witness was filed on 9.3.1986. Evidence of the applicant had concluded on 9.7.1986 and that of the other witness also on 9.7.1986. .A further affidavit-in-evidence dated 9.3.1986 was filed by Master Abdul Majeed. No application was however filed to seek permission for the filing of the said further affidavit. However an application was filed on 19.7H986, on the date the witness was examined. This application was dismissed on 23.7.1986. Another application was moved by the appellant, as there was an observation in the order of 23.7.1986 that the purview of the additional affidavit is beyond the pleading# in the objections. This time the application was for amendment in the written objections, to include a paragraph in regard to the payment of Property Tax and adjustment thereof towards the rent.. This application was moved on 4.8.1986, whereas the objection was filed on 27.8.1986. This application was dismissed on 28.10.1986.
12. In the order, to dispose of the application for amendment in the written objection by the 2nd Senior Civil Judge and Rent Controller, it has been held "that the amendment would amount to changing the nature of defence and is an afterthought. It has also been held that if the proposed amendment is allowed it would create a new plea and defence taken by the opponent in his written objection, which ought to have been taken at the first instance. It has been further held in that order that amendment could not be allowed, when the same are inconsistent with the earlier pleadings and would in fact convert the character of the case. The IInd Senior-Civil Judge and Rent Controller, Hyderabad has discussed in detail and has relied on various judgments of the superior Courts. I am also of the view that such an amendment was an afterthought and would amount to changing the entire pleadings bringing in a new plea in defence could not be allowed at that stage. No amendments could be allowed which would change the nature of the pleadings' and bring new grounds and documents that were available before and could be pleaded at the first instance. The amendment has been sought at a very late stage and after having been disclosed of the entire evidence that was being led. By the respondents. In the case of Abdul Rahid alias Muhammad Rashid Vs. Muhammad Hanif and 2 others (1994 SCMR 2035), it has been held as under:-
3. We are satisfied with the reasons assigned by the High Court for dismissal of writ petition arid non-interference in the Constitutional jurisdiction on the finding of two Courts below that application was filed after 7 years for amendment in the written statement, which was a very late stage and before that evidence had been recorded and the case was fixed for arguments. We also agree that proposed amendment as stated in the application's such which was within the knowledge of the petitioner and he could have easily mentioned it in the written statement which he did not do and there was no justifiable reason for him to waif for 7 years to divulge it for the first time so late. We are unable to see any flaw or legal infirmity in the order passed by the High Court declining interference with the Constitutional jurisdiction. In the result leave is refused and the petition is dismissed"
This has also been held in the case of Tariq Mehmood Niazi Vs. Nadeem Afzal and another (PLD 1996 Lahore 429), Abdul Ghaffar Vs. Raees Muhammad Khan and 5 others (1991 CLC 185), Malik- Riaz Ahmad Khan and others Vs. Inayatullah Qureshi and others (1989 M.L.D. 244), Muhammad Ashraf Vs. Jehan Shah (1989 M.L.D. 4446), Azizur Rehman Vs. Muhammad Yasin (1989 M.L.D. 1445) and Sher Khan Vs. Haji Naqeebuddin (1995 M.L.D. 148).
13. The citation given by the appellant are in respect of pleadings/plaint whereas, it is the written statement that has been sought to be amended. Written statement is filed by the opponent in reply to the plaint that sets out the case of the applicant. It is necessary for the opponent therefore to place all that is in his knowledge in his reply. It is mandatory upon party, therefore, to-plead all facts so as to put the other party on the notice of his defence that he has called upon to meet and that he has to prove in evidence. Such has been held in the case of Mrs. Freni A. Cavina 'Vs. Mrs. Dhunmai Phiroze, Dalai (P.L.D. 1991 S.C. 265). 1 am thus supported in my view by the said judgment. I am inclined to hold that the Rent Controller had property rejected the said application for amendment not allowing introduction of fresh facts that existed at the time of the filing of the objection and that ought to have been taken-up at the first instance.
14. The appellant had also moved an application for considering his further affidavit-in-evidence filed earlier, but after his evidence had concluded. The said affidavit had already been filed and only related to the point in issue in the application for amendment of the written objections i.e. The payment of Property Tax. By an order dated 23.7.1986 (Exh:42) the said application was dismissed by the said Rent Controller saying that the written statement was silent on the point stated in the affidavit and it was inconsistent with his pleadings. The said application was moved on 19.7.1986 and order passed therein was on 23.7.1986. It is only thereafter, that the appellant moved the application for amendment in the written objections.
15. The appellant moved an application earlier on 9.3.1986, for summoning the various witnesses named in the said application. There were five various names, .However the Rent Controller allowed the application tt> the extent'of summoning of the postman only. He refused to allow issue summons for the other witnesses, stating that the concerned, record of the case could be produced without actually summoning the individuals. The said order is also in my view proper and appropriate.
16. Another application is also on record (Exh:53) Under Section 19(4) of the Sindh Rented Premises Ordinance, 1979, for production of documents, made on 3.10.1996 after, the application for amendment was also dismissed. The said application was also dismissed by order dated 24.1.1987 in which, the Rent Controller dealt with the position that, in facts various attempts were made by the opponent to introduce new facts which could not be allowed. The view of-the Rent Controller is also correct and she properly dismissed the said application, In view of the dismissal all the applications the only consequence was that the appellant was denied amendment in their pleadings to introduce new tacts to change entire complexion of the pleadings. Such was in accordance with the settled law. The applicants should have introduces the facts and documents, which admittedly was with him and had not been procured or acquired at a subsequent date. No plausible grounds were given by the appellant/opponent in the applications as to why the said documents or grounds were not taken-up at the time of the filing of the objection at the initial stage.
17. It was the case of the respondent in the application for ejectment, that they are owners of the property bearing C.S. No. E/1830 Patasha Gali, Faqir Ka Pirr, Hyderabad and the appellant (opponent in the Rent Case) is a tenant of two shops in the said building at a monthly rental of Rs.30/- per month. It has been stated that the opponent in the rent case had not paid rent to late Haji Muhammad Younus and after his expiry the applicants became the landlords/owners of the said property. The applicants stated that served notice under Section 18 of the. Sindh Rented Premises Ordinance, 1979 informing the death of Haji Muhammad Younus and stating that the applicants were successors after his death. The applicants claimed rent being owners and landlord of the premises in question. The said notice dated 205.1984 was served on the opponent but he did not pay the rent and on 7.10.1984, after almost six months, replied, demanding from the applicants copies of mutation in the Record of the Right and stated that he was depositing the rent in the Cour: of lst Senior Civil Judge, Hyderabad. It was urged by the applicants (respondent herein) that the appellant had full knowledge of the death of Haji Muhammad Younus as also the factum, that the .Applicants had succeeded him and that all acts done by them were in bad faith. It was further urged that despite the notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 the appellants refused to pay rent on one ground or the other. The respondent/applicants in the said application stated that the appellants were defaulters in the payment of rent for the last l2 months, when the applicants became owners of the premises in question and have therefore sought ejectment.
18. The Rent Controller after hearing the parties passed orders and held that there was default in the payment of rent wherefore, the rent application was allowed and the opponent/applicant were directed to hand over Vacant and physical possession of the premises' within 75 days from the date of the said order.
19. The Rent Controller framed one basic issue, whether there was a default in the payment of rent for the period alleged, and. What should the order be. On the payment of rent, after discussing the facts, the Rent Controller has also referred to the entire evidence that has been led and after proper appreciation thereof came to the conclusion that the opponent had failed to discharge the burden that he had paid rent to Haji Muhammad Younus-till his death and till the service of notice dated 20.5.1984 upon him. She also held that ,the opponent has also failed to pay rent within 60 days to Muhammad Bachai after service of notice dated 20.5.1984 upon him.
20. I have also perused the record and proceedings of R.A. No. 489 of 1987 as also the pleadings in this present appeal. I have heard the parties and have read the written argument already filed.
However before I proceed on the facts of the case as discussed by the Rent Controller, it ^hall be appropriate first, to discuss the question of default in payment in the two rent applications i.e. 208/1984 Master Abdul Majeed Vs. Haji Muhammad Younas/and Application No. 154/1985 Master Abdul Majeed Vs. Haji Muhammad Bachai. There are two certificates, that have been filed along with this appeal in respect the said two Miscellaneous Rent Applications. On a perusal of the said certificates it can be seen that the last payment that was made in Miscellaneous Rent Application No. 208/84 Master Abdul Majeed Vs. Haji Muhammad Younus was on 3.1.1985 of Rs.35/- for the month of January, 1985. In the Miscellaneous Rent Application No. 154/85 Master Abdul Majeed Vs. Haji. Muhammad Bachai from the certificate it is clear that the first deposit was made on 25.4.1985, tor the months of February and March, 1985 and the next being on 2.5.1985 for the month of April, 1985. Taking this brief position into account it will be seen that otherwise also the last rent having been paid in January, 1985 for the month of January, 1985, the payment-for the months of February to March was made on 25.4.1985. The rent for the month of February become due on or before the 10th Aprils 1985. As such, there is otherwise default in the payment of rent bn the account also.
21. Mr. Raja Khan, for the appellant has argued the position that had the pleadings been allowed to be amended, the result would have been different. He has referred to various judgments in respect to show that the amendments could be allowed at any stage of the case; He has referred to the following judgments, Keramat Ali and another Vs. Muhammad Younus Haji and others (PLD 1963 SC 191), Mst. Ghulam Bibi and others Vs. Sarsa Khan and others (PLD 1985 SC 345), Ch. Abdul Rashid Vs. Ch. Muhammad Tufail, etc. (NLR 1992 SCJ 239), Atlantic Steamer's Supply Company Vs. m.v. Titisee and others (PLD 1993 SC 88), Mst. Saeeda Khatoon Vs. Muhammad Ahmad Latif (1985 CLC 1392), National Shipping Corporation Vs. Messrs A.R. Muhammad Siddiq and another (1974 S.C.M.R. 131), Ghulam Nabi Vs. Sardar Nazir Ahmad (1985 S.C.M.R. 824).
The judgments. And each one of them cited do not help him, as, all of them no doubt, hold that amendment could be allowed at any stage of the proceedings, but after showing good cause.
Further it has also be held in all the cited cases, that the nature of the suit should not be changed by the amendments sought. He has referred to the judgment of Ghulam Bibi and others Vs. Sarsa Khan, PLD 1985 Supreme Court 345 and has only cited the portion of the judgment which relates that, the same could be made at any stage of the proceedings but has carefully avoided to read the provision in the very judgment that: "What has been stated above is, however, subject to a very important condition that the nature of the suit insofar as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed."
"In light of the foregoing discussion if the cause of action does not change the main substance of the suit arid the nature of the suit Would not change and if that does not change the question of limitation would then remain only in form and substance".
In the case of Keramat Ali and another Vs. Muhammad Yunus Haji and others (PLD ^1963 Supreme Court 191) it was held:- "In exercising this power, no doubt, this Court would be reluctant to allow an amendment which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor All Khan v. Mst. Thakooranee Rutta Koer."
All the other cases cited on the issue are also on the same lines. I am clear in my mind, that any amendment, that is sought which changes of the nature of the pleadings cannot be allowed.
Otherwise, also, it is the case of t\he appellant that they had continued the deposit rent in Court during the life-time of the deceased Haji Muhammad Younus. Had question of Property Tax as being liability of the respondents been their, there would be no question of continuing to deposit the rent in Court. The appellants would have immediately taken refuge under the said factual position and, instead of proceeding to deposit rent in Court would have claimed that the rent is.
Liable to be adjusted against the Property Tax. Even otherwise such a plea should have been taken at the time of-the filing of the objections. The insistence therefore also seems to be an afterthought and cannot be taken into account. Mr. Raja Khan Counsel for the appellant has relied upon various judgments of this Court in which it has been held that the payment of property tax/house tax if paid by the tenant is liable to be adjusted against the payment of the rent. He has referred to the case of Kaniyalal Vs. Muhammad Kismail (1982 C.L.C. 1106), the1 case of Aftab Ahmed Vs. Mrs. Haziq and 5 others (PLD 1985 Quetta 108), the case of National Bank of Pakistan and another -Vs. Messrs Film Exhibitors Ltd. 1987 CLC 1547 the case of Lithocraft Corporation Vs: A. Habib through his 9 Legal Heirs (1988 CLC 272), the case of Pakistan Steel Products, Karachi Vs. The Controlling Authority, Karachi Municipal Corporation, Karachi and 2 others {PLD 1977 page 1027) and the ease of Commerce Bank Ltd. Vs. Mst. Sughran Bai and 3 others (PLD 1987 Karachi page 136).
In all the above cases it has been held that property tax if paid by the tenant is put towards rent. In the case of Lithocraft Corporation Vs. A. Habib through his 9 Legal Heirs 1988 CLC 272) it has been field as under-
(a) ".................. It shall be lawful for the prescribed authority to serve upon any person paying rent in respect of that building or land, or any part thereof, the- person from whom the areas are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent (whether the same have already accrued due or not) by the person paying the rent to be made direct to the prescribed authority until such arrears shall have been duly paid, and such notice shall operate to transfer to the prescribed authority the right to recover, receive and give a discharge for such rent......"
(b) I am, therefore, of the view that the respondent was made liable to pay the said taxes in accordance with law. Having placed reliance on Lahore case PLD 1977 Lah. 1072 which is a direct authority on the point. I am clear in my mind that the liability of the appellant for payment of rent, for the period alleged, stood discharged by paying the said property tax in response to two notices issued to the appellants. The appellants cannot, therefore, be said to be defaulter when the application for ejectment was filed. The finding of the learned Controller, is, therefore, revered. (This is, however, without prejudice to respondents' right to claim from the appellants, by a separate suit, the amount of difference in taxes, paid on account of the respondents, if the conversion to commercial use is held as not unauthorized by the respondent).
22. From the above it will be seen that upon the payment-of such tax he was liable to give a notice to the landlord and upon the landlord refusing to accept the same he would have the authority thereafter to adjust the same from the rent. In this, I am supported by the views taken in the case of Mrs. Afia Baig Vs. Messrs Pakistan State Oil Company Ltd. (PLD 1991 Karachi 239), Habib Ahmed Bhai Vs. Allah Noor and others (1992 MLD 2399) and Mrs. Hazarbai Merchant and another Vs. Muhammad Ismail (1984 SCMR 406). All the above-referred judgments cited are also on the same point no doubt property tax if demanded from the tenant by the appropriate authorities could be paid, anti the same claimed, from the landlord. If the landlord fails to thereafter pay the same to him it could be adjusted against rent due.
23. Mr. Raja Khan, counsel for the appellant also states that on basis of this it would at best be a technical default and ejectment order was therefore perverse. He refers to the judgment of Mrs. Sarwat Siddique, etc. Vs. Muhammad Yousaf (NLR' 1985 Civil 569) and Abdul Hameed Kv. Abdul Aziz (1992 MLD 1361). The aforesaid position could have been deemed to be correct, subject to other facts, had this been taken in the written objections. The payment of property tax was never stated in the written statement and did not appear, till the evidence of the respondent and the appellant had been led. In fact, to same appeared after the appellant had himself been cross-examined and the affidavit-in-evidence of his other witness filed. All these amendments sought were afterthoughts. He had to show in each of his applications whey such was not taken at the initial stage, and a mere reference to the fact that he had forgotten was not sufficient. He had continued to deposit rent even before the death of the first landlord in the name of the first landlord and had not claimed adjustment of the said property tax from him during his lifetime. All these are sufficient to show that there was malice in attempting to show that the property tax was the liability of the landlord in the absence of any agreement. It seems that, in view of the low rent, the property tax was also accepted by the appellant to be his liability as such, never demanded the same either the previous landlord or the new landlords till such time, it was seen from the evidence that the would not Have a case to defend. It is therefore that the appellant attempted to introduce the new facts.
The applications in each one of them were duly and properly therefore dismissed by the Rent Controller.
24. Having therefore held that the applications moved by the appellants were lawfully rejected, I proceed to deal, with the order passed by the said Rent Controller. The issue is, whether the opponent had committed a default in payment of rent. The Rent Controller has dealt with the question and has held that he appellant has committed default in the payment of rent. The reason for this has been that the appellant had admitted in the cross-examination that he received information of the death of Haji Muhammad Younus on the next day of his death and after about 15 days thereof he came to know that the applicants are the landlords being Legal Heir of the deceased. The Rent Controller therefore states in his order that the appellant (opponent) had belied his own contention, that he did not have knowledge that the applicants were the legal heirs of the late Haji Muhammad Younus till the service of first notice dated 20.5.1984 and that he continued, therefore, to deposit the rent in Court, which he was doing during his life-time. The Rent Controller in his order said that the applicant has alleged that the opponent had not been paying rent to the late Haji Muhammad Younus which had been denied by the opponent, however, in the cross-examination the opponent stated that he paid the rent to the late Haji Muhammad Younus through money order and did not remember since when he had remitted the last money order to Haji Muhammad Younus. He has further said, that it is the plea of the opponent that after service of the notice dated 20:5.1984 he offered rent to the applicant No. 1 who refused to receive the rent and then the same was remitted through money order. It is said that the notice was sent to the opponent in the month of May, 1984 and the reply was sent to the applicant in the month of October, 1984 then, demanding a copy of the record-of-rights and intimating him that he had been depositing rent in Court of the lst Sr. Civil Judge Hyderabad. It is held by the Rent Controller that the opponent ought to have paid the rent to the applicant after service of notice dated 20.5.1984, as it is settled law that new owner is not required to send the copy of the title of the owner and was only required to serve the tenant with notice under Section 18 of the Sindh Rented Premises Ordinance, 1979. He also states that photo-copy had been filed by the opponent with the written objections which showed that the rent was remitted to Muhammad Bachai on 5.2.1985 and thereafter on 4.3.1985 when the rent was required to be paid within 60 days of the receipt of notice sent in May, 1984 and that, therefore, there was a lapse of months together. The Rent Controller states that the opponent had submitted that after the refusal of money orders he started the deposit rent in Court but, in cross-examination he failed to give the month and the year of such deposit in Court as also the last deposit of rent. The Rent Controller said that if for the sake of arguments it is accepted that the opponent had started depositing the rent in Court in the name of the Muhammad Bachai and that if such deposit was made it was after the default was committed for the various months it having been tendered through money order dated 5.2.1985 and 4.3.1985, the default had been committed and there was no retraction therefor. The Rent Controller has referred to Exh: l2, the City Survey Extract which shows that on 18.3.1984 by inheritance the Properties stood mutated in the name of the applicants and in cross-examination appellant admitted that on the next day of the death Haji Muhammad Younus the applicant came to know and, despite having knowledge the did not take any appropriate action. In fact, after the service of notice on 20.5.1984 which was replied in October, 1984 the rent was first tendered in February, 1985. He therefore on the aforesaid basis held that there was clear default on the part of the opponent and the opponent having also failed to discharge the burden that he paid rent to the Haji Muhammad Younus till his death. He therefore ordered the opponent to hand over vacant and physical possession of the said premises within 75 days.
25. I have already dealt with and held that the applications moved by the appellants were rightly allowed. I may observe that had the applications being allowed and the documents introduced, the written statement allowed' to be amended it otherwise also could not have been prove that the appellants were not in arrears of rent. In fact it is abundantly clear that the reason for- the attempt to alter was to pleadings were to cause confusion in the mind of the Court. The amendments being sought on the one hand claims that the appellants were depositing rent and on the other hand claimed that property tax was paid and therefore, there was no question of default. Even if that was the case, from the record it is clear that the documents that were being introduced related to Property Tax for the period from 1975 onwards which, from their own showing were paid by the appellant. There is no rent agreement on record. The written statement does not show at the initial instance that such was liable to be refunded by the applicant or his father the deceased Haji Muhammad Younus. Otherwise also Such cannot be accepted, as during the life-time, this amount .Was never claimed from the deceased Haji Muhammad . Younus nor was it claimed from the respondents, after the death of the said Haji Muhammad Younas. In fact the reply given also does not suggest of any adjustment against Property Tax. The application does not give any reason why this was so. In fact no reason has been given why the amendments should be allowed. The written statement is quiet on this account and, when after evidence, the opponent realized that it had become a clear case of default, these applications were moved to bring on record the various documents and amend the written statement, to introduce this new fact that would have changed the entire complexion of the pleadings. The important aspect is that the opponents themselves accept that, in fact, if it is presumed that there was an outstanding payable^by the deceased Haji Muhammad Younus on account of Property Tax, it would have been indicated at the first instance and, that the rent would not have continued to be deposited by the opponent/appellant during life-time of the deceased Haji Muhammad Younus. By depositing the rent they themselves accepted the fact of payability of rent without adjustment of the property tax. Therefore, attempting to seek a position that it was adjustable against any dues in respect of property in which the appellants are tenants is fallacious and crude. It does not stand to reason why a person would start to deposit rent when, he himself, says that the landlord is liable to pay to him on account of Property Tax. I am unable to accept such a new plea taken by the appellant. The appellant has cited various judgments in this matter which have been dealt with. I, therefore, hold that even if such had been produced it would not have made much difference in the present case.
26. I now come to the arguments of the opponent that, had the Rent Controller taken into account the remittance of rent to the previous landlord by money order or deposit of in R.A. No. 208/1984 as also the remittance of rent by money order in February, 1985 and on refusal deposited the rent from February onwards in R.A.-No. 114 of 1985, the Rent Controller would have come to a different conclusion. I do not agree with the assertions of the learned counsel for the appellant on the grounds that I have already discussed above.
27. I am convinced that from the record of the case, the evidence led therein that the order dated 28.2.1987 passed by the Rent Controller, Hyderabad is correct and needs no interference. The reasoning given by the Rent Controller is proper and valid. The applications that were dismissed by her were proper and that she has applied her mind properly in arriving at the conclusion that the appellant has defaulted in the payment of rent to the respondents.
In these circumstances, I dismiss this appeal filed by the appellants. Four months time is granted.
The appellants shall also bear the cost of the appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.