1989CLC509 (PLP)

I have heard the learned counsel for the parties. The present appeal has been filed against the order of the Rent Controller passed in the Rent case striking off the defence of the appellants/tenants and directing them to hand over the possession of the premises to the respondent within thirty days. In the appeal, an application, being C.M.A. No.628/1988 was moved to stay the execution of the order of the Rent Controller, while the respondent moved an application, being, C.M.A. No.1292/1988, under Order 39, Rule 4, C.P.C., with the prayer that the interim order passed on 6‑4‑1988 staying the execution of the impugned order be discharged and also the appeal be dismissed. 1 proceed to dispose of the above two applications by this common order. This appeal was admitted on 6‑4‑1988 by this Court. It is stated in the order as under: "Learned counsel contends that in the objection filed on behalf of the appellants to the application under section 16(1) of Sind Rented Premises Ordinance, 1979, it was specifically stated that the notice under section 18 of the Act had not been given to the appellants and hence they had not committed any default. The trial Court failed to appreciate and passed an order under section 16(1). When the matter came up again on an application under section 16(2) of the Act, a similar objection was, inter alia, raised but the learned Rent Controller allowed the application for striking off defence without taking into consideration and repelling the said objection. The contention raised requires consideration. Admit. Notice. (3) Notice, in the meanwhile the execution of the impugned order shall remain stayed." Mr. Muhammad Asar Hussain, learned counsel for the respondent, while arguing application C.MA. No.1292/88, has mainly urged that the Rent Controller did consider the objection raised by the appellants with regard to non service of notice under section 18 of the Sind Rented Premises Ordinance and, therefore, the plea in this regard taken by the learned Advocate in this appeal at the time of admission was misconceived. He contended that the admission has been obtained by misrepresentation and fraud by arguing that the Rent Controller had not appreciated and taken into consideration the above said ground. The learned counsel for the respondent has relied on the case of Grindlay's Bank Limited v. Murree Brewery Company Limited and another P L D 1954 Lah. 745 and also on the case of Messrs Ruby Trading Company v. Mst. Zainab Khanum and 5 others reported in 1984 C L C

169. In the latter case the appeal was got admitted on the grounds which were not sustainable by record and in similar circumstances an application was moved by the respondent and Mr.Zafar Hussain Mirza, J., as he then was, vacated the stay order observing that, "I am sure if this aspect was pointed out to the learned Judge, he would not have passed the ad interim order". In the present case, the counsel for the respondent has brought on record the earlier order passed by the Rent Controller on the application under section 16(1) on 29‑9‑1987, which very clearly shows that the Rent Controller has taken into consideration the plea of the appellants that no notice under section 18 of the Sind Rented Premises Ordinance had been served. The impugned order under section 16(2) was passed by the Rent Controller on account of non compliance of the abovesaid order. Mr. Asar Hussain has, therefore, argued that the contentions of the appellants' counsel that his plea was not taken into consideration or Rent Controller failed to appreciate the same are not tenable and actually amount to taking the grounds not sustainable on record. Mr. Usman Ghani Rashid, learned counsel for the appellants, while making his submission has stated that he did not mean to say that the plea was not considered but as is apparent from the first part of the order dated 6‑4‑1988, all he meant was that the Rent Controller had not appreciated the plea. He also read out the memorandum of the present appeal in order to support his contention, but from the plain reading of the same, it appears that no such specific ground has been taken by the learned counsel. I am sure that if this I aspect was pointed‑out to the learned Judge, he would not have passed the ad interim order. In the result I find no prima facie case for grant of stay of the execution of the impugned order. I, therefore, allow the application C.MA. No.1292/1988 and dismiss the application C.MA. No.628/1988. However, I order that the appeal be fixed for regular hearing on 16th October, 1988. H.B.T./S‑311/K Stay vacated/order accordingly.