2000 PLP 1869 (CLC)

5. It is contended by Mr. S.M. Alam learned counsel for appellant that the rate of rent is denied by the appellant and the application under section 16(1) of Sindh Rented Premises Ordinance, 1979 was filed by respondent and learned Rent Controller passed an order on 26‑10‑1993 whereby the appellant was ordered to deposit arrears as well as monthly future rent at the rate of Rs.2,

500. It is stated that thereafter the evidence was recorded and while the appellant was in' witness‑box .it was offered that whether he was prepared to take special oath about the rate of rent and he accepted the said proposal. The appellant stated on oath that the rate of rent was Rs.1,500 and not Rs.2,

500. Thereafter, the learned counsel for respondent did not press main ejectment application as such learned Rent Controller disposed of the matter on the basis of said oath. It is argued that on 6‑11‑1994 an application under section 12(2), C.P.C. read with section 151, C.P.C. and section 19 of Sindh Rented Premises Ordinance, 1979 was filed and the appellant filed objection thereon. The learned Rent Controller framed preliminary issue on the said application to resolve the controversy whether order, dated 20‑4‑1994 was obtained by appellant in connivance with the counsel for respondent and committed fraud.

6. The parties led their evidence and learned Rent Controller on 24‑10‑1997 set aside the order, dated 20‑7‑1994. He restored the ejectment application and fixed it for cross‑examination on the affidavit ‑filed by the appellant. The appellant from August, 1994 started depositing rent in the Court at the rate of Rs.1,

500. It was only, after the order, dated 24‑10‑1997 passed by Rent Controller, the appellant started depositing rent at the rate of Rs.2,

500. Respondent on 28‑10‑1997 moved an application seeking direction from the Rent Controller to direct the appellant to make deficit monthly rent which was not deposited by him earlier. The said application was pending when respondent filed an application under section 16(2) of Sindh Rented Premises Ordinance, 1979 which was subsequently, allowed and the defence of the appellant was struck off by the impugned order, dated 11‑5‑1998. It is denied that the order is illegal and without lawful authority. ‑ The learned counsel has argued that order passed on application under section 12(2), C.P.C. was challenged by the appellant in this Honourable Court but the same was dismissed in limine. It is argued that the said application was F,moved levelling allegation against hip own counsel but the said counsel was not examined in Court. Learned counsel has pleaded that appellant was justified in depositing rent at the rate of R‑1,500 which way being paid by, him after he was administered special oath and the deficit amount was not determined by the Rent Controller The reference is made to a case of Agrics Cooperative Housing Society, Lahore v. F.L.C. and others 1996 MLD 1995. ‑ .

7. Mr. S.M. Hyder learned counsel for respondent stated that application under section 12(2), C.P.C. was allowed on 24‑10‑1997 and the matter was restored to its original position. It is contended that the appellant was required to deposit rent at the rate of Rs.2,500 and to make deficit amount of rent. It is contended that the appellant failed to comply with the order and the learned Rent Controller rightly struck of his defence. The reference is made to Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1 and Muhamm4d Saleem v. Muhammad Shaft 1982 SCMR 33 ‑

8. The record reveals that appellant during cross‑examination was given special oath which was accepted by the then counsel appearing for the respondent and rent application was disposed of on 20‑7‑1994 and thereafter the opponent started depositing rent in‑the Court at the rate of Rs.1,500 per month.

9. It appears that on 17‑8‑1994 the respondent filed an application under section 12(2), C.P.C. whereby he challenged the .order, dated 20‑7‑1994 wherein he urged that said order be recalled as the same was obtained by appellant in collusion with the previous counsel appearing for the respondent. The learned Rent Controller on 6‑11‑1994 framed the following issues: (1) Whether the order dated 20‑7‑1994 has been obtained by counsel by way of fraud? (2) What should the order be?

10. The appellant against the said order filed F.R.A. No.686 of 1994 in this Honourable Court but the same was dismissed in limine on 29‑1‑1995 and the learned Rent Controller was directed to decide application under section 12(2), C.P.C. without any further loss of time.

11. The parties thereafter adduced their evidence and application under section 12(2), C.P.C. was allowed as prayed on 24‑10‑1997. The rent application was restored to its original position. The appellant against the said order, dated 24‑10‑1997 preferred F.R.A. No.266 of 1997 which was dismissed in limine on 8‑12‑1997. . After dismissal of said F.R.A. the respondent filed application under ‑ section 16(2) `of the Sindh Recited Premises .Ordinance, 1979 praying wherein that' defence of applicant be struck off as he failed to comply with the directions of tentative rent order, dated 26‑10‑1993 and did not pay tent at the rate of Rs.2.500 per month. It appears that objections were filed by the appellant wherein he pleaded that said application was not maintainable as .the case was already decided on special oath. Lastly, the order, dated ‑20‑7‑1994 was set aside and the rent case was restored hence the tentative rent order. dated 26‑10‑1993 is fully enforceable and. was binding upon the appellant. From the record it appears that on 26‑10‑1993 the appellant was directed to deposit the monthly rent at the rate of Rs.2,500 per month and he started depositing rent at the said rate. He deposited said amount up to the month of June, 1994 but from July, 1994 he again started depositing rent at the rate of Rs.1,500 per month. The plea that case was decided on special oath does not appear to be sound as if the parties had mutually agreed, then the rent must have been paid directly to the respondent and why should the same be deposited in Court. The arguments by the learned counsel that it was collusive order in connivance with the counsel appearing for the respondent has force in it. As soon as, the said order was set aside, the appellant wits bound to pay rent at the rate of Rs.2,500 per month but he failed to comply with the order, dated 26‑10‑1993 passed by the Rent Controller and did not deposit the rent at the rate of Rs.2,500 per month from the month of October, 1997.

12. The case‑law referred to by the learned counsel for appellant has no relevance to the facts and circumstances of the‑instant case. The defence of appellant was rightly struck off by the Rent Controller and ejectment order does not suffer from any illegality or irregularity and the same does not call 8 for any interference. ,

13. This F.R.A. No.362 of 1998 is dismissed with no order as to cost. The appellant to hand over vacant possession of the premises in question to the respondent within a period of 60 days from the date of this order . H.B.T./D‑4/K Appeal dismissed.