1980 PLP 629 (CLC)

Ash faq-ur-Rehman v. Ch. Muhammad Af al P L D 1968 S C 230 ref. Attaullah Malik v. Rashid and another Second Appeal No. 108 of 1966 rel. (d) Civil Procedure Code (V of 1908)- -- O. VII, r. 14 and West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S. 13(6)-Appellant not relying on his right of adjustment of excess rent deposited by him in Courts below-Such fact being based on admitted facts and raising only question of law-Appel lant, held. entitled to rely on such fact-Parties allowed to amend their pleadings and case remanded to Rent Controller for rehearing petition afresh.-[Amendment of plaint]. Talmiz Burney for Appellant. Abdul Majeed for Respondents. Date of hearing :14th December, 1971. This is a Second appeal under the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the said Ordinance) against the concurrent orders of a Rent Controller and District Judge, Karachi striking off the appellant's defence for non-compliance with the Rent Controller's orders for deposit under subsection (6) of section 13 of the said Ordinance. The respondents are the owners of the property demised to, the appellant and had filed .an eviction application against him sometime' in 1964. As the appellant contested the eviction ,application, in due course, the Rent Controller passed an order for deposit of tentative rent under subsection (6). He fixed the monthly rent at 36 and directed the appellant to pay Rs. 1.800 as arrears and to deposit the monthly rent at Rs. 36 p.m. The appellant complied with this order but according to the respondents, lie was irregular in the deposit of rent, therefore they filed an application that an enquiry should be made as to whether he had complied with the order of deposit of rent and that if it was found that he had committed breach of the order his defence should be struck oft: The appellant contested this application and the case of the respondents appears to have been that the appellant had committed default twice. Thus it was argued that he had deposited the rent of Decem ber, 1964 on 5th January, 1965 and she rent of March 1965 on 7th April 1965. As the 4th January, 1965 was a holiday, the-Rent Controller rejected the plea that the appellant had committed default in the deposit of the rent of Decem ber, 1964 but the rent of March, 1965 had been deposited on 7th April, 1'765, and the appellant's only plea in justification was that he had bean prevented by illness from depositing it before 5th April, 1965, Because the appellant did not produce a medical certificate to prove his illness, the Rent Controller, disbelieved his plea and struck off his defence. The appellant filed an appeal in the District Court which was dismissed on the same ground; therefore he in second appeal to this Court.

2. Mr. Burney satisfied me that the appellant used to deposit rent in lump sum and was generally depositing rent in advance, therefore, as he had been late in the payment of rent only once and that only by three days Mr. Burney submitted that the Courts below had erred in disbelieving hill. plea of illness. This receives support from the fact that the appellant was generally depositing tent in advance. But as it cannot be said that the view of the courts below is not supporter by evidence I cannot, interfere with their finding in this second appeal.

3. Mr. Burney then pointed out that the Rent Controller's order for deposit of rent was defective because it had directed the appellant to deposal rent which was time barred. Mr. Abdul Majid Khan very fairly concede the position and admitted that in compliance with the order for deposit, the appellant had deposited rent that was admittedly time-barred, under the rule laid down by the Supreme Court in Ashfuq-ur-Rehman v. Ch. Muhammad Afzal (P L D 1968 S C 230). This means that the respondents had received rent which the appellant was .not liable to pay. Mr. Burney therefore submitted that the appellant was entitled to credit for the excess rent which was thus lying in Court and/or had been corrected by the respondents. The submission in supported by reason and equity, and learned counsel also referred me to the observations of the Supreme Court in Evans v. Muhammad Ashraf (P L D 1964 S C 536). There the facts were that the landlord had collected rent at a rate higher than she was entitled to in law and with regard to the question of alleged default Hamoodur Rehman, J. as he then was, now the Chief Justice, pointed out at page 552 that as the appellant "had paid for 15 months at double (the correct) rate he was legitimately entitled either to a refund of the excess amount paid or to an adjustment thereof against future rents before he could be treated as a defaulter." It is conceded before me that the respondents have not refunded to the appellant the excess amount deposited by him, there fore, in view of the observations quoted, the excess rent has to be adjusted against the single default of March, 1965. The result is that it wipes out the alleged default, so that the impugned orders are illegal and the appeal must be allowed.

4. Mr. Abdul Majid Khan then submitted that in fact no time-barred rent had been deposited by the appellant or collected by the respondents because the respondents were entitled to extension of time for the recovery of rent from the appellant on account of a dispute between them and the appel lants over the transfer of the demised property by the Settlement Authorities. Mr. Burney naturally submitted that this argument was contrary to the view taken by the Supreme Court in Ashfaq-ur-Rehman's case. But Mr. Abdul Majid Khan took time to produce a copy of a judgment of a Division Bench of this Court in Attaullah Malik v. Rasid and another Second Appeal No. 108 of 1966. In this judgment the Division Bench has considered Ashraq-ur-Rehman's case and further held that time for the recovery of rent by the landlord was( extended by a dispute about the title of the demised property. Sitting as Single Judge of this Court, I am bound by this judgment and as it may support the respondent's claim. It is clear that their plea that the rent ordered to be deposited did not include any time-barred rent requires to be investigated. However, they have not pleaded in their eviction application that they were entitled to extension of time so that this argument is not available to them unless the pleadings ere amended.

5. Mr Abdul Malid Khan therefore that Me respondents should to allowed to amend the pleadings because she appellant also was receiving on a defence not raised by him in the Courts below. It is true that the appellant had not relied on his. right of adjustment of the excess rent deposited by him in the Courts below. But as it is based on admitted facts and raises only a question of law lie is entitled to rely on it. It would however not be just to allow him to rely on this plea and at the same time to deny to the respondents an opportunity to amend their pleadings so as to meet the plea of the appellant. Both the learned counsel also agreed with this view arid sought permission for amendment of the pleadings. Accord ingly I permit both of them. to amend their pleadings.

6. The result of this discussion is that the impugned orders are set aside and the appeal is allowed. The case is reminded to the trial Court which shall give the respondents an opportunity to amend their eviction application. The appellant will then be entitled to amend his written statement and thereafter the Rent Controller will far in the light of the amended pleadings the question whether the appellant had committed any default in compliance with the order for deposit of rent passed by him. T he appeal is allowed to the extent stated therein, but I make no order as to costs. M. A. K. Appeal accepted. Case remanded.