1983 PLP 1218 (CLC)

The appellant above‑named, being aggrieved by judgment dated 16th March, 1981 of the Learned II Additional District Judge, Karachi, by which he allowed 1st Appeal No. 499/77, filed by the respondent, and set aside the order dated 31st October, 1977 of the learned Vth Rent Controller, Karachi, on appellant's application under section 13(6) " of West Pakistan Urban Rent Restriction Ordinance,‑‑ 1959, by which respondent's defence was struck off; has preferred this second appeal on the following facts and grounds:‑

2. Briefly, the case of appellant as put up in his rent case, before the learned Rent Controller is, that he is the landlord of the disputed premises, which were given on rent to the respondent at the rate of Rs. 600 per month, which respondent has not paid, since January, 1975 and has thus committed wilful default. He has prayed for ejectment of the respondent also, on the ground, that he requires the said premises for his personal bona fide use. Whereas, respondent by his written statement has denied the case of respon dent and prayed for dismissal of the rent case.

3. On 27th October, 1975 learned Rent Controller ordered, that rent at the rate of Rs. 600 per month be deposited in the Court from May, 1975 onwards amounting to Rs. 3,000 by 31st December, 1975. He further directed, that future rent be deposited before 15th of each calendar month. On 24th February, 1976, an application under section 13(6) was moved on behalf of the appellant to strike off the defence of the respondent on the ground, that he has failed to deposit rent of October, and November, 1975 in time. On this application, the reported Nazir was called and notice of it was also given to the respondent. Respondent filed objection stating, that on account of wrong advice of his Advocate he thought, that arrears of rent included the rent of October, 1975. It was stated, that he had so thought, because tentative rent order was passed in the last week of October, 1975 and that he had prayed that the default, if any, may not be considered as wilful default. Alongwith the objection, he filed davit of his Advocate, in rebuttal whereof, appellant. had filed his affidavit. Then, respondent again filed affidavit in rejoinder in support of his objections.

4. However the learned Rent Controller vide his order dated 31st October, 1977 allowed appellant's application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 and struck off the defence of the respondent. Respondent above‑named filed

1. Appeal No. 499/77, against the said order of the learned Rent Controller, m the Court of 11 Additional District Judge,. Karachi, who by his judgment dated 16th March, 1981 set aside order dated 31st October, 1977 of the learned Rent Controller and remanded back the case to the learned Rent Controller for disposal on merits. The appellant above‑named being aggrieved by judg ment dated 16th March, 1981 of the learned 11 Additional District Judge, Karachi, has filed the above sound appeal, on the grounds mentioned m memo. of appeal. 5. 1 have gone through the orders of both the learned lower Courts and have heard the learned Advocates of the parties and have gone through the various authorities cited by them before me,

6. The learned Advocate for the appellant in support of above appeal submitted, that learned 11 Additional District Judge wrongly came to con clusion, that learned Rent Controller held respondent to be defaulter in respect of the rent for month of November, 1975, only. The learned Advocate for the appellant further submitted, that learned II Additional District Judge failed to appreciate, that case reported in 1973 S C M R 112 was distinguishable from the present case and as such has come to erroneous conclusions and held that respondent has not committed default of the tentative rent order. The learned Advocate for the appellant further sub mitted, that learned II Additional District Judge, Karachi has failed to appreciate correctly tentative rent order dated 27th October; 1975. In view of his above submissions, the learned Advocate for the appellant urged that judgment dated 16th March 1981 of the learned II Additional District Judge, Karachi cannot be sustained.

7. The learned Advocate for the respondent on the other band sub mitted, that the judgment dated 16th March, 1981 of the learned II Addi tional District Judge, Karachi is based on cogent reasons and as such it ought not to be interfered with in this second appeal. The learned Advocate for the respondent further submitted, that tentative rent order dated 27th October, 1975 is vague and as such it cannot form basis for striking off the defence of the respondent, as rightly held by the learned II Additional District Judge. The learned Advocate for the respondent further submitted, that the learned Rent Controller by his order dated 31st October, 1977, held respondent defaulter in respect of the payment of rent for the month of November, 1975 only and since appellant did not challenge the said order, by way of appeal, he is now estopped from challenging the said order, on basis, that respondent was defaulter for October as well as November, 1975. In support of his contentions the learned Advocate for the respondent relied upon cases reported in 1973 S C M R 112 and 1979 C L C 794 and sub mitted that above appeal is liable to be dismissed with costs.

8. I have carefully considered the above submissions made by learned counsel before me and have gone through; the order and judgment of the learned lower Courts as well as through the authorities cited by the learned Advocate for the respondent. I have also gone through the tentative rent order dated 27th October, 1975 and affidavit of learned Advocate for the respondent filed before the learned Rent Controller and R & ~ P of learned lower Courts.

9. Unfortunately, in my opinion tentative rent order dated 27th October 1975 is rather vague, both in respect of the actual arrears covered) by the said order and in respect of deposit of future rents. Beside this, as, held by the learned II Additional District Judge, Karachi, deposit of Rs. 600 made by the respondent on 24th November, 1975 could be consider ed as deposits of rent for the month of November, 1975 and remaining deposits made by the respondent before 23rd December, 1975 which come to Rs. 3,600 could be treated as deposits towards arrears of rents from May, 1975 to October, 1975 which was to be deposited on or before 31st December, 1975, as there is nothing on record to show on what account respondent started depositing money from 24th November, 1975, in accordance with tentative rent order in question and as such benefit of such calculation ought to go to the respondent. I see nothing wrong with this conclusion arrived at by the learned 11 Additional District Judge, Karachi, in view of vagueness of tentative rent order dated 27th October, 1975 and in view of the finding of the learned Rent Controller, that default if any, committed by respondent was in respect of the Regt of November, 1975 and not October, as well as November, 1975 as urged by the learned Advocate for the appellant before him, as well as before this Court, I find judgment dated 6th March, 1981 of the learned II Additional District Judge, Karachi is based on cogent reasons and I find no material irregularity in the conclusions arrived at by him nor the conclusions of the learned Additional District Judge, Karachi could be considered incorrect or perverse and contrary to facts on record. In view of this I see no reasons to interfere with judgment date 16th March, 1981 of the learned II Additional District Judge, Karachi, in this second appeal.

10. Therefore I dismiss the above appeal, with costs and remand back the case to the learned Rent Controller for disposal of appellants ejectment,~ application on merits, in accordance with law. Second appeal dismissed.