1984 PLP 1189 (MLD)

It may be observed that the respondent filed an application under section 16(2) for striking off defence, to which the appellant filed a counter-affidavit averring therein, that factually there was no default as he was depositing rent in advance. It may be advantageous to reproduce paras. 2 to 7 of the counter-affidavit, which- read as follows:-- "(2) That on 11-8-1981 when the case was fixed for rent order, I was present in Court alongwith my Advocate Mr. Mahmudi. (3) That the Judge dictated the order to his Steno in our presence whereby he directed me to deposit Rs.8,670 being arrears within two months and future rent before the 10th of every month and the matter was adjourned to 12-10-1981. (4) That on the request from my Advocate Mr. Mahmudi the Steno supplied him the carbon copy of the said order which also mentioned Rs.8,670 as arrears. Photostat is filed and marked Exh."A". (5) That accordingly my Advocate Mr. Mahmudi advised me to deposit Rs.8,670 and also two months rent in advance totalling Rs.9,690 which I did on 31-8-1981 and thereafter I have been depositing the rent in advance regularly without any default which are noted by my Advocate on Exh. "A" filed herewith indicating the months to which the deposit relates. (6) That on receipt of the copy of default application under section 16(2), when the Court file was checked, it revealed that the figure of Rs.8,670 was changed by hand into Rs.9,690 of which change neither I nor my said Advocate had any notice or knowledge and I remained under the bona fide belief that I have fully complied the order by depositing arrears of Rs.8,670 as ordered earlier. (7) That soon after discovering the said mistake I have deposited three months rent amounting to Rs.1,530 on 8-12-1983 to cover my non-payment. Photostat of the receipt is filed as Exh."B". No rejoinder to the above counter-affidavit was filed by the respondent. The learned Rent Controller after hearing the parties allowed the respondent's above application and ordered striking off defence of the appellant. The appellant being aggrieved by the above order has filed the present appeal.

2. In support of the above appeal Mr. M.M. Mahmudi learned counsel for the appellant has urged that explanation given by the appellant in his above-quoted counter-affidavit was sufficient and, therefore, the learned Rent Controller was not justified to order striking off defence of the appellant. On the other hand Mr. M.M. Beg learned counsel for the respondent has contended that since the period and the rate of rent was written in the tentative rent order and as factually the appellant had deposited the correct amount within the period of two months, namely Rs.9,690 and not Rs.8,670 the learned Rent Controller was justified in inferring that this explanation was an afterthought and hence the appeal has no merits.

3. Adverting to the above contentions of the learned counsel for the parties, it may be observed that the averments made by the appellant in his counter-affidavit some of which have been reproduced hereinabove remained unrebutted. The factum that the learned Rent Controller dictated the order to his Steno in the presence of the appellant and his Advocate Mr. Mahmudi and dictated the figure of Rs.8,670 and not Rs.9,690 remained unrebutted. From the original record, it seems that the figure of Rs.8,670 was changed into Rs.9,690 in ink by' handwriting and not by type-writer. The above averment of the appellant that originally the learned Rent Controller dictated the figure of Rs.8,670 has been corroborated by the original tentative order on record of the Rent Controller. The factum that the above alteration was made without notice and knowledge of the appellant or his counsel also remained unrebutted. The learned Rent Controller in his order as well as Mr. M.M. Beg appearing for the respondent at the Bar has pointed out that the fact that the appellant had deposited Rs.9,690 within two months as was ordered by the Rent Controller negates the explanation given in the counter-affidavit. In this context it may be pointed out that in the counter-affidavit it was also averred that as per instructions of his Advocate Mr. Mahmudi the appellant had deposited a sum of Rs.8,670 towards the arrears of rent and two months advance rent. This averment has also not been repudiated. Mr. Mahmudi has appeared before me for the appellant and I inquired from him whether factually what has been stated in the affidavit is true or not. He has submitted that he is ready to file his personal affidavit if Court would direct to corroborate the averment contained in the counter-affidavit. Since no rejoinder was filed to the above counter?affidavit, in my view it is not necessary to ask Mr. Mahmudi to file his personal affidavit and as a matter of fact Mr. M.M. Beg learned counsel for the respondent has submitted at the Bar that he would not like that Mr. Mahmudi should file his personal affidavit or should depose on oath before this Court.

4. The question, therefore, in issue is, whether if it is to be assumed that the facts disclosed in the counter-affidavit were true, whether the same were sufficient to entitle the appellant to the discretion in his favour. Mr. Mahmudi has referred to the case of Hashim Khan v. Ghulam Nabi and 7 others, 1973 S C M R 112, in which the Honourable Supreme Court accepted the appeal of the tenant against striking off defence though the same was maintained even by the High Court in a second appeal. The facts in the said case were that 'the tentative order was passed by the Rent Controller on 14-5-1966 directing the tenant to deposit the arrears of rent before 15-7-1966 and also current rent by 15th of each month. It was averred by the tenant that his Advocate had informed him that he was to deposit the arrears as well as current rent before 15th July 1966, though the current rent was to be deposited on or before 15-6-196fi. The above explanation was found sufficient by the Honourable Supreme Court. In my view the above case on all fours is applicable to the instant case, and therefore, I would allow the above appeal and set aside the said order under appeal with no order as to costs. However, I direct the learned Rent Controller to dispose of the case within three months as the learned counsel for the parties have informed me that the evidence has already been concluded and the arguments are to be addressed by the learned counsel. H. B. T.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.