1986 PLP 1592 (MLD)

‑‑‑Ss. 15, 16(1)(2) & 21(l)‑‑Tentative rent order‑‑Non‑compliance of‑ Effect‑‑Enquiry contemplated by S.16(1) of Ordinance XVII of 1979 in respect of determination of arrears of rent being of summary nature and compliance of tentative rent order passed thereunder being of imperative nature under S. 16(2) of Ordinance, 1979, failure of tenant to comply with same, held, would entail penal consequences of striking off defence of tenant. Zahid Hussain for Appellant. Hussain Sheikh for Respondent. Date of hearing: 2nd February 1986. This appeal is directed against the order passed by the Civil judge, and Rent Controller, Tando Adam, dated 30‑5‑1985, directing the appellant to hand over vacant and peaceful possession of the premises in dispute to the respondent. The facts of the case, briefly, are that t e respondent is the landlord of the residential premises situated in Tando Adam and the appellant is the tenant in respect of the same at a monthly rent of Rs.125. The respondent filed application under section 15 of the Sind Rented Premises Ordinance, 1979 for ejectment of the appellant, as according to the respondent the premises in question were required in good faith by him for his personal use. On 9‑12‑1984 the learned Rent Controller passed a tentative rent order directing the appellant to deposit rent for the period from August to November, 1984, in Court. He further directed the appellant to keep on depositing rent every month in Court at the same rate from December 1984, onwards. It appears that the appellant failed to deposit rent in Court as directed, therefore on 16‑5‑1985 he filed an application before the learned Rent Controller, requesting him to allow the tenant to deposit rent which had become due for the period from December, 1984 to April, 1985. Earlier, an application under section 16(2) of the said Ordinance had also been filed by the respondent's Advocate for striking off the appellant's defence owing to his non‑compliance of the tentative rent order passed by the Rent Controller. Both these applications were disposed of by the learned Rent Controller by the impugned order. The contention now raised on behalf of the appellant mainly, is, that the default, if any, was not intentional and the same, in any case, was only technical. It has been further contended that the appellant had not been informed by his previous counsel about the passing of the tentative rent order and as such, he failed to deposit rent in question within the time as directed by the Rent Controller. It has also been contended that the Rent Controller while passing the tentative rent order had failed to take into account the fact that the appellant had been directly sending rent to the respondent through money orders upto the month of November, 1984. It has further been contended that the respondent was accepting rent through such money orders despite his filing ejectment application before the learned Rent Controller and it was only after November, 1984 that the respondent refused to accept rent by money order without assigning any reason. In the end it has been contended that failure to deposit rent, although, constituted negligence but no default in order to bring the case within the purview of section 16(2) of the said Ordinance. The contentions raised on behalf of the appellant although have not been disputed by Mr. Hussain Shaikh, the learned counsel appearing on behalf of the respondent, but his argument has been that since failure on the part of the appellant to deposit monthly rent for the period in question has not been denied, the burden was on him to explain such failure. The learned counsel has further contended that such failure has not been explained even in the application, dated 16‑5‑1985, filed by the appellant before the Rent Controller as no explanation had been offered by him for the same. Although, it is true that the appellant was regularly sending rent to the respondent by money order from August upto November, 1984, as alleged by him, as the same has also been conceded by Mr. Hussain Shaikh, the learned counsel for the respondent, but the question is not only of the non‑payment of rent for that period as the appellant, admittedly, also failed to deposit rent for the period from December, 1984 to April, 1985. When the rent for the period from August, 1984 to April, 1985 was not deposited by the appellant in compliance with the tentative rent order, as according to his own case he has paid rent to the respondent only upto the month of November, 1984, therefore, it is manifest that the appellant was in default as far as the period from December, 1984 to April, 1985 was concerned. Since no plausibl explanation has been offered by the appellant for failing to deposit rent for that period, there was a clear failure on his part to comply with the tentative rent order passed by the Rent Controller. Once that was established, then the only course left for the Rent Controller was to strike off the appellant's defence under subsection (2) of section 1 of the said Ordinance. Reference in this respect may also be made to Muhammad Umar v. Mst. Aiyshia Aziz 1981 S C M R 276 and Khali Ahmed Malik v. Mst. Habiba Begum 1981 C L C 1496. In the first case, decided by this Court, there was a delaY of three days it deposit of rent, which had not been explained. It was held, that delay of each day had to be explained and the order passed by the Rent Controller was upheld. In the second case, also decided by this Court, although the tenant had deposited arrears of rent but he had defaulted in payment of future monthly rent without any explanation. The order striking off the tenant's defence was upheld in this case also. The appellant has pleaded lack of knowledge on his part in regard to passing of order under section 16(1) of the Ordinance. Consequently it has been contended that the appellant was not guilt of any default on his part. This argument, however, cannot be of an avail to the appellant as the language used in section 16(2) of the Sind Rented Premises Ordinance is different as compared to that used in the former Rent Ordinance. The words used in the Sind Rented Premise Ordinance are "where the tenant has failed to deposit the arrears o rent or to pay monthly rent under subsection (i)". Section 13(6) o the former Ordinance has used the word "default" which has a different connotation than the word "fail". As we held in Sind Employer's Social Security Institution v. Silva Industries Ltd., 1982 P L C 1062 the word "fail" has a wider connotation as compared to the word "default". In any case, since the only reason stated by the appellant for failure on his part to deposit rent as ordered by the Rent Controller was want of knowledge on his part in respect of the existence of such 'Order, this is my opinion, amounts to negligence which is not excusable. Lastly‑It has been contended that the Order under section 16(1) of the Sind Rented Premises Ordinance was factually incorrect, therefore, its non‑compliance would not entail any penalty. This argument also seems to be devoid of force as the enquiry contemplated by section 16(1) of the Ordinance is to be of summary nature and the order to be passed there under is only tentative. The use of the word "shall" in subsection (2) of section 16 clearly suggests that failure on the part of the tenant to comply with the order of the Rent Controller entails penal consequences. For the aforesaid reasons this appeal is dismissed and the order passed by the learned Rent Controller is maintained. However, in view of the circumstances of the case, the parties shall bear their own costs. The appellant is, however, granted three months' time to put the landlord in possession of the premises. H.B.T. Appeal dismissed.