1989 PLP 3501 (MLD)

This First Rent Appeal is directed against the order dated 31st March, 1987 passed by the learned IInd Senior Civil Judge and Rent Controller Karachi West, striking off the defence of 1 he appellant for failure to comply with the order passed on 3-4-1986. The brief facts giving rise to the present appeal are that the respondent filed an ejectment application before the learned Rent Controller inter alia stating therein that he is a landlord of Quarter No. 148/9, Sector 5; D, North Karachi. In para. 2 of the above application it was stated that the opponent is in possession of the above premised as tenant at monthly rent of Rs. 300 since the life of deceased Nasiruddin ancestor of the applicant. That the opponent has failed to pay rent and therefore, an ejectment application being Rent Case No. 2195/82 was filed on the ground of default and personal bona fide need, which was allowed and the opponent has filed First Rent Appeal No. 1010 of 1984 in the High Court. That during the pendency of the said proceedings the applicant has attained the age of 60 years and as such he served the opponent with a notice under section 14 of the Sind Rented Premises Ordinance, 1979, which was refused. That the applicant is above the age of 60 years and has been residing alongwith some other family members who have accommodated him out of sheer sympathy. He requires the demised premises for his personal bona fide use. The appellant/tenant was served and she filed her written statement in which she admitted the relationship of landlord and tenant. It was also admitted that the rate of rent was Rs.300 per month. However, it was denied that she was defaulter. As far as the age of the appellant/respondent was concerned, it was stated that the same is denied for want of knowledge and the applicant is put to strict proof so far his age was concerned. That since the matter was sub-judice before the High Court in appeal, the present application was not maintainable. That during the pendency of the ejectment application the respondent moved an application under section 16(1) of the Sind Rented Premises Ordinance, which was allowed on 3-4-1986 and the appellant was directed to deposit Rs.12,900 as arrears of rent from May, 1982 to December 1985 within two months. She was further directed to deposit rent from January 1986 to March 1986 at the rate of Rs.300 per month on or before 10th of every succeeding month so also the future rent. The appellant did not comply with the order passed by the learned Rent Controller, and therefore the application under section 16(2) of the Sind Rented Premises Ordinance was filed, notice of which was issued to the appellant but the appellant produced certain receipts showing that she had deposited some rent at the rate of Rs.120 per month and therefore her defence was struck off and she was directed to hand over vacant possession to the respondent within two months. The present appeal is directed against the above order. I have heard Mr. Muhammad Ali Shaikh learned counsel appearing for the appellant, Mr. Muhammad Ramzan learned counsel appearing for the respondent, and have also gone through the R & P of the case. It was contended by Mr. Muhammad Ali Shaikh learned counsel appearing for the appellant, that the rate of rent was Rs.120 per month and the learned Advocate appearing for the appellant before the Rent Controller had admitted the rate of rent to be Rs.300 through mistake. That the appellant has been depositing the rent at the rate of Rs.120 per month and therefore she was not a defaulter. Mr. Muhammad Ramzan learned counsel appearing for the respondent has contended that the written statement was verified on oath and it clearly mentioned that the rate was Rs.300 per month. He has further contended that the appellant had failed to comply with the order passed by the learned Rent Controller under section 16(1) inasmuch as neither the arrears of rent were deposited nor future rent was deposited at the rate of Rs.300 per month, and therefore, the learned Rent Controller had rightly passed the impugned order. I have considered the contentions of the learned counsel. In para. 2 of the application the rate of rent has been stated to be Rs.300 per month. In para. 5 of the written statement the appellant has admitted the relationship of landlord and tenant, and has also admitted the rate of rent to be Rs.300 per month. The written statement was verified on oath before Commissioner for Taking Affidavits and therefore the contention that the rate of rent was admitted through mistake is untenable. Admittedly, the tentative order passed by the learned Rent Controller on 3-4-1986 was not complied with and no satisfactory explanation was submitted for non-compliance of the order. The receipts, produced by the learned counsel show that the rent was being deposited at the rate of Rs.120 per month, and therefore, it is clear that the appellant was a clear defaulter in payment of rent. She had failed to comply with the order passed by the Rent Controller. In view of the above admitted position, the order passed by the learned Rent Controller does not suffer from any infirmity and therefore, the appeal is I accordingly dismissed. However, I wanted to give some time to the appellant for handing over possession of the demised premises to the respondent but I was informed by Mr. Muhammad Ali Shaikh that the appellant has been dis-possessed in execution of ejectment order passed in the earlier case and therefore there was no question of granting time to the appellant. M.Y.H./R-96/K