P L D 1959 (W (PLP)

QADEERUDDIN AHMED, J.‑This is an appeal from the judgment and decree passed by Muhammad Bakhsh, J. by which he decreed the plaintiff's suit for Rs. 270 on account of arrears of rent and for ejectment and dismissed the counter‑claim of the defendant for Rs.

150. The appellant, who is the tenant, has filed this appeal on the grounds elaborately stated in the memo of appeal. The facts are that the respondent, who is the landlord, filed a suit for arrears of rent from the month of May 1950 to the 31st of January 1951, at the rate of Rs. 30 per month and for ejectment on the ground of non‑payment of rent, in other words, on the ground that the appel lant was not ready and willing to pay the rent. The appellant pleaded in his written statement that the rate of rent was Rs. 20 per month and not Rs. 30 as alleged by the respondent in the plaint, that he tried to pay the rent at the correct rate but the landlord did not accept the money. He further pleaded that the fair rent of the premises was fixed by the Rent Controller on the 20th of May 1950, and therefore, from that date he was not bound to pay rent at the higher rate. He had been paying Rs. 30 per month formerly and therefore, he made a counter claim for Rs. 150 on account of excess payment. Several issues were framed in the suit which have been decided against the appellant. Mr. Jamil Alam has appeared for the appellant and admitted) that the Rent Controller's order by which the fair rent was fixed was set aside by him, but contended that it continued in force in spite of it. The facts admittedly are that the Rent Controller had fixed Rs. 20 as the fair rent of the premises in the absence of the respondent and therefore the respondent applied for setting aside the order, whereupon the Rent Controller set aside the order in the presence of the parties on the 28th of August 1950. After this, the A appellant did not appear before the Rent Controller, and therefore the Rent Controller dismissed the appellant's application for the fixation of fair rent on the 20th of October 1950. According to the learned counsel the order of the Rent Controller fixing the fair rent had become final in terms of section 22 of the Sind Rent Restriction Act of 1947, which was in force at that time, and could not be modified or set aside by the Rent Controller. He argued that the provisions of Order IX contained in the Civil Procedure Code were not applicable to the proceedings before the Rent Controller and therefore the only remedy which was open to the landlord was to go to the higher authorities according to the pro visions of the Act and not to apply for setting aside the ex parte order. He laid great stress on this argument without realizing that under section 18 of the Act, the Rent Controller had the power to review any order passed by him. Confronted with section 18 he argued that on legal advice received by the appellant he thought that the order fixing the rent could not be set aside by the Rent Controller and had continued in force. As such there was a genuine dispute between the parties regarding the rate of rent. If the appellant did not pay rent at the rate claimed by the landlord then this omission did not reveal or prove that the appellant was not ready and willing to pay his dues. He conceded that the relevant time at which readiness and willing ness to pay rent should be proved by the tenant is the time of the institution of the suit for ejectment, but drew a distinction between unwillingness to pay rent and existence of a dispute. He pointed out that the appellant stopped payment at the rate claimed by the landlord after the fixation of the fair rent by the Rent Controller, which according to him, was a proof of the fact that non‑payment at the rate claimed by the landlord was due to a good reason or, at least, due to a reason which the appellant genuinely thought to be good in law. After the institution of the present suit, the dispute remained subjudice and, therefore according to counsel the dispute subsisted, but as soon as the decree was passed it became clear to the appellant that his contention was not upheld and, therefore, he has deposited in Court the entire amount claimed from him. This fact, according to the counsel, is another proof of the readiness and willingness to pay. Without going into the question as to whether the existence of a genuine dispute regarding the rate of rent is a sufficient justification for non‑payment of rent, we find that the appellant did no fit rely for non‑payment of rent on the lack of jurisdiction of the Rent Controller for setting aside the order by which the fair rent was fixed. No plea was taken ‑by him in the written statement to that effect. In fact, the appellant seems to have concealed the fact that the order by which the fair rent was fixed was set aside. It was set aside in his presence and yet he relied on it and therefore, the non‑disclosure in the written statement of full facts was not consonant with the good faith of the appellant. Moreover, we C infer from the judgment of the learned trial Court that the present `' argument that the order fixing the fair rent continued in force was not advanced in the Trial Court. This is a new argument which was adopted for the first time in appeal. We do not, therefore, think that the appellant omitted to pay full rent because of a legal advice alleged to have been given to him. We do recognise that the appellant has deposited' all his dues in Court, but we are unable to infer from this that he was ready and willing to pay the rent at the agreed rate before the suit was filed. We think that the appellant has been deliberately neglect full in paying his dues. He never cared to take proper steps to take advantage of the Rent Restriction Acts. He should have appeared before the Rent Controller and pursued his application. He could have applied to the Rent Controller again for the fixation of the fair rent and he should have at least applied for this purpose after the Karachi Rent Restriction Act, 1953 came into force, because, according to this Act, such an application could not be made after a certain time. It appears to us that he was obstinate and realised the seriousness of the suit after the decree for ejectment was passed against him by the trial Court. We therefore dismiss the appeal with costs. A. H. Appeal dismissed.