1986 PLP 90 (CLC)

This Rent Appeal has arisen from the order of Ist Senior Civil Judge and Rent Controller, Karachi, dated 16‑1‑1985 whereby he struck off the defence of the appellants/ tenants directing them to put the respondent /landlord in peaceful vacant possession of the demised premises within 90 days of the order. Briefly stated the facts of the case are that the respondent filed ejectment proceedings, seeking ejectment of the appellants from the disputed premises, inter alia on the ground of default in payment of rent. The appellants resisted the ejectment application denying the allegations of the respondent including that of the default. During pendency of the ejectment proceedings between the parties, the learned Rent Controller passed a tentative order, dated 20‑2‑1984 calling upon the appellants to deposit rent arrears of Rs.975 within a month, withdrawing the said amount from Miscellaneous Rent Application No. 35 of 1972 and future monthly rent at the rate of Rs.15 per month on or before 10th of every succeeding month. It was further ordered by the learned Rent Controller that the rent for the month of February, 1984 would be deposited on or before 10th March, 1984. In compliance of this order the rent arrears of Rs.975 were paid within time. The appellants, however, made default in depositing the rent for the months of March, 1984 and May, 1984 by due dates whereupon the learned Rent Controller struck off the defence of the appellants by the impugned order. After hepring the learned counsel for the parties at some length, the appeal was dismissed with no order as to costs by short order, dated 20‑10‑1985 for reasons to be recorded separately. By the same order the appellants were directed to hand over the vacant possession of the demised premises to the respondent within 2 months of the order. Following are the reasons in support of the short order. It is an admitted position that rent arrears of Rs.975 were deposited by the appellants within time fixed in the tentative order. However they are held to have committed default in depositing the rent for two months namely March and May, 1984 by the due dates. The Nazir's report shows that after passing of the tentative order first payment of Rs.15 was made by the appellants on 10‑3‑1984 which amount was obviously the rent for the month of February, 1984. The second payment of Rs.30 on account of monthly rent was made on 17‑4‑1984. Although the learned counsel for the appellants was unable to explain why the rent for two months was paid together on the said date, the amount deposited on 17‑4‑1984 was clearly the rent for next two months namely, March and April, 1984. Since the rent for the month of March, 1984 was due to be paid on or before 10‑4‑1984, the appellants had obviously made default in depositing the rent for March, 1984 by the due date. Again the third payment of Rs.30 made on 11‑6‑1984 was also for two months next following i.e. May and June, 1984. Although no explanation is forthcoming as to why the rent for two months was depsoited together, it is clear that the rent for the month of May, 1984 was deposited one day late, as it was deposited on 11‑6‑1984 instead of 10‑6‑1984. Thus the appellants committed default in respect of the months of March and May, 1984. The learned counsel for the appellants, however, contended that even after passing of the tentative order the appellants paid the rent for the month of February, 1984 in the earlier miscellaneous application referred to above and as such the payment of Rs.15 made on 10‑3‑1984 was the rent for the month of March, 1984. Similarly the amount of Rs.30 deposited on 17‑4‑1984 was the rent for the months of April and May, 1984. In this way, the argued no default could be attributed to the appellants as through bona fide mistake they deposited the rent for the month of February, in the earlier miscellaneous application. According to the learned counsel such error on the part of the appellants was only technical in nature and could be condoned. In support of his contention he relied upon an unreported decision of the Supreme Court in the case of Major (R) A.S.K. Samad v. Lt.‑Col. (R) A. Hussain and another (Civil Appeal No. K‑97 of 1982), decided on 30‑1‑1984. It would appear that the facts of the case of Supreme Court cited by the learned counsel for the appellants are distinguishable from the facts of the case in hand. In the case of Supreme Court the rent case in which the rent was being deposited was between the same parties and further the landlady was from time to time withdrawing the amounts from the rent so deposited by the tenant, and the Rent Controller had not made a specific order for withdrawal of the rent arrears from the earlier rent case and depositing of the same in the pending case. It was conceded by the learned counsel for the appellants that the alleged payment of rent for the month of March, 1984 in the Miscellaneous Rent Case was made by the appellants not in the name of respondent but in the name of his father Fazal Peera. The receipt produced in support of the payment also shows that the payment was made in the name of respondent's father. This shows that the respondent was not party in the earlier Miscellaneous Rent Case in which the appellants were depositing the rent. Perhaps it was due to that reason that the learned Rent Controller had directed in the tentative order for withdrawal of the amount from the said rent case and depositing the same in the case under consideration. The learned counsel for the appellants tried to argue that in some other case the respondent had admitted that his father was his attorney and, therefore, the payment made in the name of his father could be held to have been made in his name. The argument of the learned counsel is patently untenable. There is no indication in the written statement filed by the appellants in reply to the ejectment application that the respondent's father Fazal Peera had ever collected rent from them or that he was the attorney of the respondent. Moreover the learned Rent Controller had made a specific order directing the appellants to withdraw the amount deposited in the B earlier rent case and deposit the same in the present case. In view of such specific direction the appellants could not thereafter deposit the rent in the earlier rent case. Therefore the deposit of Rs.15 in the earlier Miscellaneous Rent Case on 6‑3‑1984 subsequent to passing of the tentative order could not be held to have been made in compliance of the tentative order. The learned counsel for the respondent has cited two cases in support of the above view: Ghulam Mustafa v. Mian Waqar Ahmed PLD 1980 S C 9 and Mahmood Beshir v. Mst. Mubeena Begum 1984 C L C 2620. In the case of Ghulam Mustal'a the tenant failed to deposit the rent in specific name of landlord suing him for ejectment and whom he had specifically accepted as his landlord but instead deposited the same in the names of large body of persons namely heirs of landlord's father. It was held that deposit of rent was not in conformity with the Rent Controller's order and as such Courts below were justified in not endorsing the validity of such deposit. In the 'case of Mahmood Bashir the tenant did not deposit the rent in the name of landlady but instead deposited the same in the name of her husband. Thereupon the Rent Controller directed the tenant to withdraw the amount wrongly deposited and deposit the same in the specific name of the landlord. The tenant did not comply with the order of the Rent Controller who, therefore, struck off his defence and passed order of his, ejectment. It was held: "Even if there was some initial justification for deposit of rent in the name of Zafar who is the husband of the present respondent, still that justification was completely gone after the order passed by the Rent Controller on 5th December, 1981. The result is that it was not mere technical non‑complianace with the order of Rent Controller, dated 5th December, 1981 but a contumacious insistence on the part of the appellant that he will continue to do as he liked in spite of order of the Rent Controller. " The present case appears to be on all fours of the above two, reported cases. In the instant case too there was specific direction from the Rent Controller that the amount of rent deposited in the earlier Miscellaneous Rent Case would be withdrawn and re‑deposited in the present case within one month's time and thereafter, the monthly rent would be deposited on or before 10th of each succeeding month. Despite such clear cut order of the Rent Controller, appellants deposited the rent for the month of February not in the present case but in the earlier Miscellaneous Rent Case and that too in the name of the respondent's father who is not party to the present case. The upshot of the above discussion is that the appellants did not comply with the tentative order passed by the learned Rent Controller' in respect of depositing the monthly rent for, the months of March and May, 1984 as the same was not deposited by due dates as has been pointed out above. Consequently their defence was rightly struck off. Hence the appeal was dismissed and the appellants were ordered to deliver the possession of the demised premises to the respondent within two months of this order. A.A. Appeal dismissed