2001 PLP 251 (CLC)

First Rent Appeal No.699 and Civil Miscellaneous Application No. 1410 of 1998, decided on 24th April, 2000. ‑‑‑‑S. 21‑‑‑Appeal‑‑‑Raising of new plea‑‑‑Opportunity to lead additional evidence ‑‑‑Tenant, in the appeal against ejectment order, denied existence of relationship of landlord and tenant‑‑‑Such being the new stand in appeal, contention by the tenant was that opportunity to lead evidence before Rent Controller might be granted regarding such new plea‑‑‑Validity‑‑‑Where additional question of fact and law was raised in appellate proceedings, Appellate Court, in a proper case, might direct that evidence be led as the same would not prejudice any of the parties‑‑‑Plea raised by the tenant was contradicted by his stand before the Rent Controller‑‑‑Party could not be allowed to blow hot and cold and kept on experimenting with different factual pleas at different stages of proceedings as to allow parties to do so would destroy sanctity of judicial system. Mobarak Ahmed for Appellant. Muhammad Latif Shaikh for Respondents. This appeal is directed against the order, dated 17‑8‑1998 of the learned Rent Controller declining his earlier order, dated 29‑4‑1998 whereby the appellant's defence was struck of on account of non‑compliance with the rent order, dated 2‑4‑1998. Basically the facts appear to be that the respondent filed an application for ejectment of the appellant in 1994 on the ground of default in payment of rent. The respondent filed a written statement alleging that he was in possession of the premises as tenant, but since there were disputes about ownership he was depositing rent regularly in M.R.C. 309 of 1995 in the Court of VIth Rent Controller, Karachi (South). He further denied landlord‑tenant relationship on the ground that no notice under section 18 was served upon him.

2. The learned Rent Controller on an application by the respondent passed an elaborate order, dated 11‑4‑1998 directing the appellant to deposit arrears and future rent after deducting amounts deposited under the M.R.C. The appellant, however, failed to comply with the same and eventually by an order, dated .27‑4‑1998 his defence was struck of. Instead of preferring an appeal, however, the appellant chose to file an application for review which was dismissed by the Rent Controller on 17‑8‑1998. Thereafter, he filed this appeal on 2‑10‑1998. Apart from the fact that the application for review was patently misconceived as indeed conceded by Mr. Mubarak Ahmed 'and an appeal against the order rejecting the appellants' defence stands barred by limitation. The appellant does not even have a prima facie case on merits. The only plea taken is that the appellant was not a tenant of the respondent but a landlord in his own right. Such plea I am afraid patently contradicts the stand taken by the appellant in his written statement and could not be allowed .to be raised .at the appellate level. Mr. Mubarak has relied on the observations of the Honourable Supreme Court in Attaullah Jan v. Abdullah Jan PLD 1984 SC 222 and contended that when a plea as to fact is raised at an appellate level the Court should grant an opportunity to parties to lead evidence before the trial Court. In this case a new plea as to application of the Rented Premises Ordinance to ascertain property was raised which had not been raised earlier. In my humble view, however, the law declared in the above precedent does not apply to the facts of the present case. It may well be that in a proper case where an additional question of fact and law is raised in appellate proceedings the appellate Court may direct that evidence be led which would not prejudice any of the party. In the present case, however, a plea that the appellant was the owner of the property in his own right is patently contradicted by his stand before the Rent Controller in respect of premises. A party obviously cannot be allowed to blow hot and cold and keep on experimenting with different factual pleas at different stages of the proceedings. To allow them to do so would destroy sanctity of the judicial system. For the foregoing reasons I find no merit in this appeal and dismiss the same in limine. Q. M.H./M A.K./S‑64/K Appeal dismissed,