1986 PLP 731 (CLC)

Date of hearing: 25th August, 1985. This appeal is directed against the order dated 4‑2‑1984 whereby the defence of the appellant was struck off under section 16(2).

2. The relevant facts are that the appellant is admittedly the tenant of the respondent in respect of the disputed premises. The rate of rent is disputed to be either Rs.200 or Rs.300. The respondent had claimed in ejectment application filed on 4‑2‑1979 that the appellant was in arrears from 1‑7‑1975. It was asserted by the appellant in the written statement that he had paid rent at Rs.200 per month upto March, 1978 and thereafter the respondent had refused to accept the rent. On 4‑2‑1979 the Rent Controller passed the order directing the deposit of Rs.300 as arrears from April, 1978 to January, 1979 at Rs.300 and also directed to deposit the future rent at the same rate. The default took place in compliance with the said order and thereupon the appellant was ejected. On 19‑5‑1985 in First Rent Appeal No. 432 of 1982 filed by the appellant, the High Court struck down the order of deposit of rent dated 4‑2‑1979 and directed the Rent ‑Controller to pass fresh order under section 16(1) of Sind Rented Premises Ordinance, 1979 after hearing the parties in accordance with law. Thereafter the parties and their counsel appeared before the Rent Controller on several dates. On 2‑2‑1983 the appellant's counsel made a statement in Court that since the opponent is depositing rent in Court there is no need for a fresh order regarding deposit of rent. However, on the pointation of the counsel for the respondent that High Court had directed the passing of fresh order, therefore, the Rent Controller called for the Nazir's report. On 3‑2‑1983 the Nazir submitted his report in respect of the deposits made by the appellant. On 14‑2‑1983 rent account was filed by the respondent's counsel. Copy of the same was collected by the appellant's Advocate and the matter was put off to 1‑3‑1983 for hearing of application under section 16(1) of Sind Rented Premises Ordinance, 1979. On 1‑3‑1983 the counsel for the parties were present and the Rent Controller after hearing them passed a deposit of rent order directing the appellant to deposit a sum of Rs.10,800 on account of arrears of rent upto 31‑7‑1978 and further arrears of RS.16,500 from 1‑8‑1978 to 28‑2‑1983, total amounting to Rs.7,

300. The Rent Controller took into account Rs.1,600 deposited by the appellant in Miscellaneous Rent Case No. 2740 of 1978 and a further deposit of Rs.15,800 made by the appellant in the relevant present case as well as Rs.300 alleged, to be deposited by the appellant's counsel orally, and thus the total deposits came to Rs.17,

700. Consequently, arrears of Rs.9,600 were directed to be deposited on or before 30th May1983 and future rent at Rs. 300 per month from March, 1983 by or before l0th, of next succeeding month. No deposit in respect of the arrears of Rs;, 9,600 has been made by the appellant as directed by the Rent Controller and, therefore, on application made by the present respondent for striking off defence, the defence was struck off by the impugned order dated 4‑2‑1984.

3. The main contention of the appellant's counsel Mrs. Salima Nasiruddin in two‑fold one is that no application under section 16(1) of Sind Rented Premises Ordinance, 1979 had been made by the respondent and, therefore, the order of deposit of rent could not have been passed on 1‑3‑1983. Second contention is that no deposit of rent for the period of 1‑7‑1975 to 31‑7‑1978 could have been allowed as the same had not been allowed on 4‑2‑1979 in the first deposit of rent order.

4. I have no hesitation in repelling the first contention of the learned counsel because of the fact that the Rent Case No. 3875 of 1978 out of which this appeal has arisen had been filed before the Sind Rented Premises Ordinance, 1979 came into force, hence the rights and obligations of the parties had to be determined under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, the rent order could have been passed without any application by the landlord. In fact, the first rent order was passed on 4‑2‑1979 without any application by the respondent. Moreover the High Court when it passed the order on 19‑5‑1982 directing the passing of fresh deposit of rent order under section 16(1) of Sind Rented Premises Ordinance, 1979 had not directed that fresh application by the landlord would be necessary. On remand from the High Court the original position as it prevailed on 4‑2‑1979 became applicable and, therefore, the rent order passed on 1‑3‑1983 without a formal application by the respondent was quite legal. In any case, on 2‑1‑1983 when the matter was adjourned to 2‑2‑1983 the parties' counsel were present and the question of passing of the fresh order of deposit of rent was in the mind of .he parties. In fact, on 2‑2‑1983 the appellant's counsel had made an endorsement in her hand that no fresh order of deposit of rent was necessary but in spite of that the matter in respect of the deposit of rent was pursued by the Rent Controller. I may also note here that on 30th of November, 1982 the opponent was present in\person and had filed a statement of account. The Rent Controller had asked for report from the Nazir and the same was supplied on 3‑2‑1983 and thereafter on 14‑2‑1983 the appellant's counsel had collected the statement of account filed by the respondent's counsel. It is, therefore, obvious that all along from 19‑5‑1982 and thereafter the question of passing of fresh rent order was under consideration and the respondent was present before the Rent Controller, on 14‑2‑1983 the Rent Controller had made the following endorsement in his order:‑-- "By consent put off to 1‑3‑1983 for hearing of application under section 16(1) of Sind Rented Premises Ordinance, 1979." It is, therefore, obvious to me that once the party had got the matter fixed by consent for decision under section 16(1) of the Sind Rented Premises Ordinance, 1979 then thereafter the objection of the counsel that there was no formal application under section 16(1) of the Ordinance is an allegation without substance and it would be making a technicality fetish of the matter. The next submission of the appellant's counsel that deposit of arrears of rent from 1‑7‑1975 to 31‑7‑1978 could not have been ordered by the Rent Controller is again not correct. The previous order of deposit of rent had been set aside by the High Court and, therefore, on 1‑3‑1983 the Rent Controller could tentatively determine as to what was the arrears of rent between the parties.

5. The learned counsel had submitted that if the appellant had been given proper opportunity the appellant could have shown that he had paid the rent upto March, 1978. That may have been possible for the appellant to say but he should have raised such objection when the respondent's counsel had filed the statement of account and he should have filed his objections to the same. After all, it is a tentative deposit of rent order which is passed by the Rent Controller after giving reasonable opportunity to the parties. The appellant cannot deny that the reasonable opportunity has been provided to her. In fact, the matter had been postponed for a number of hearings for this very purpose of passing the rent order under section 16(1) of S.R.P.O. 1979. The rent account filed by the respondent on 14‑2‑1983 shows arrears of Rs. 27,000 from 1‑8‑1975 but no objection to the date of arrears is shown in any way either in writing or in the oral submissions made before the Rent Controller on 1‑3‑1983.

6. It is correct that on 30‑11‑1982 the statement of account filed by the appellant's counsel had claimed that there was no rent due but the photostat of the payment made by the appellant in Court had alone been filed with that statement and all these photostat have been accounted for in the rent order. However, there is no submission before me that these amounts which have been shown to be deposited by the appellant in Court have not been taken into consideration by the Rent Controller.

7. The other submission made by the appellant's counsel was that if the appellant had been provided sufficient opportunity then she could have proved that she had made payments to the respondent. I do not find any such request having been made by any application made before the Rent Controller although the appellant had known all along from 19‑5‑1982 till 1‑3‑1983 that the question of deposit of rent order was present before the Rent Controller and more so when the respondent had claimed arrears on 14‑2‑1983. It, therefore, appears to me that the submission that no proper opportunity had been afforded to the appellant to show that she had deposited the rent from 1975 to 1978 is not justified in view of the lower Court's record. However since allegation of payment of arrears was merely oral, therefore, the appellant should have made efforts to produce the witnesses for that purpose, but appellant failed to do so.

8. The submission that the subsequent deposit of rent order could not have taken into consideration the arrears from 1975 to 1978 as first deposit of rent order of 4‑2‑1979 has not provided such deposit is not correct as the whole matter was open before the Rent Controller after the remand order from the High Court on 19‑5‑1982 and, therefore, on 1‑3‑1983 the Rent Controller could have made an order on the basis of pleadings between the parties and the material before him. The result is that this appeal is found to be without merit and is hereby dismissed.

9. However, in view of the acute shortage of residential accommodation in this city I am inclined to accept the request of the appellant's counsel for allowing 6 months time to vacate the premises. Mr. Abdul Karim Siddiqui, counsel for the respondent had not objected to concession to be given to the appellant. This concession would be subject to the deposit of future monthly rent by the appellant as directed by the Rent Controller. Direct writ of possession will be issued after 6 months from today against the appellant or even earlier in case of failure to deposit future monthly rent from September 1985 C . M . A . 578 of 1985 is dismissed as infructuous. H B.T.????????????????????????????????????????????????? Appeal dismissed.