1986 PLP 120 (CLC)

(c) Sind Rented Premises Ordinance (XVII of 1979)‑‑ ‑‑‑S. 16‑‑Striking off defence‑‑Rent Controller, held, apart from application to strike off defence could exercise such jurisdiction suo motu‑‑Such order justified and valid on failure of tenant to deposit arrears of rent as per order of Court. Ali Ahmad Tariq for Appellant. Rahmat Elahi for Respondent. Date of hearing: 8th September, 1985 This appeal is directed against the order, dated 12‑12‑1983 passed by Mr. Abdul Mateen Khan the then Second Senior Civil Judge and Rent Controller, Karachi, whereby he ordered the ejectment of the appellant from the premises in dispute within the 45 days of the order.

2. The appellant was the tenant of the respondent in respect of the first floor of the building on Plot No. 708/7, Central Commercial Area, P.E.C.H.S., Karachi at the rate of Rs.500 per month. The appellant failed to deposit the arrears of rent and, therefore, on 24‑10‑1981, the respondent filed an application against him under section 15(2), Sind Rented Premises Ordinance, 1979 on the ground of default in payment of rent singe July, 1980. The appellant admitted the relationship of landlord and tenant between the parties. He, however, denied the default and alleged that he had paid Rs.15,000 as advance rent to the respondent from July, 1982 to 31st December, 1982. On 31‑7‑1982 an application was made by the appellant requesting the Court to direct the respondent to deposit of the arrears of rent amounting to Rs.12,500 per month. On 15‑9‑1982 the respondent's Advocate filed objections to the application and repeated his allegation that he had already paid Rs.15,000 as advance rent from July, 1980 to December, 1982. Consequently, on 12‑10‑1982 the learned Controller directed that an enquiry in respect of arrears of rent be held and put off the case on 13‑11‑1982 for evidence of the parties. It appears that alongwith his application, dated 31‑7‑1982 referred to above the applicant had filed an affidavit of evidence on his behalf. It appears that after passing the order of enquiry, dated 12‑10‑1982, the cross‑examination of the appellant on the affidavit was conducted by the Advocate for the appellant. Thereafter, the respondent closed his side. The respondent did not file any affidavit. He neither submitted himself for cross‑examination nor did he produce any documentary evidence. Hence on 21‑3‑1982, the Controller allowed the applicant's application, dated 31‑7‑1982 and directed the respondent to deposit the arrears of rent amounting to Rs.15,500 from 1‑7‑1982 to November, 1983 on or before 28‑4‑1983. He further directed him to deposit current and future rent at the rate of Rs.500 per month from March, 1983 onward on or before 10th of each calendar month. The opponent did not deposit the arrears of rent amounting to Rs.15,500 or any other amount on or before 28‑4‑1983 and, therefore, the Controller struck off his defence on 12‑12‑1983 and ordered that the appellant be put in possession of the premises in dispute in 45 days. Against this order he has come in this appeal.

3. I have heard Mr. Ali Ahmad Tariq Advocate for the appellant at length and Mr. Rahmat Ellahi Advocate for the respondent. The appellant's counsel had attacked the order for deposit of rent passed on 21‑3‑1983 on the ground that he was not given an opportunity of being heard before passing of that order. He contended that although by his order, dated 12‑10‑1982, the Controller had ordered the holding of an enquiry in respect of arrears of rent but without holding any such inquiry he passed the above order striking off the defence of the appellant. He . has relied upon 1984 C L C 2007 in support of his contention that the enquiry was necessary and what was meant by an enquiry. This ruling does not apply to the facts of the present case because in this case proper enquiry was held by the Rent Controller Mr. Ikram Hussain Jafri and, therefore, it is wrong to say that without recording any evidence about the payment of Rs.15,000 he passed an illegal order on 21‑3‑1983 directing the appellant to deposit the arrears of rent. It may be pointed out that this contention of the learned counsel is not correct. I have already shown above that after passing A the order, dated 12‑10‑1982 an enquiry was held by the Controller as much as he gave the appellant an opportunity to cross‑examine the respondent on the affidavit already filed by the respondent. The Controller thereafter he gave an opportunity to the appellant to lead any evidence but the appellant did not lead any evidence whatsoever. He should, therefore, thank himself for this lapse on his part.

4. The Rent Controller Mr. Ikram Hussain Jafri has clearly shown in his order, dated 21‑3‑1983 that although the appellant had alleged that he had paid Rs.15,000 through a cheque as rent from July, 1980 to December, 1982 but he has failed to produce any receipt or other proof of the alleged cheque given by him to the respondent or any receipt or other proof for: payment of Rs.15,000 to the respondent by the appellant in any other way. He has further pointed out that the respondent had denied the same. He has clearly given a finding that no such amount was paid by the appellant to the respondent. Hence he called upon the appellant to deposit the arrears of rent as well as current and future rent. His order is, therefore, perfectly valid and justified.

5. It was next contended by Mr. Ali Ahmad Tariq that the application for striking off the defence was made by the respondent on 5‑4‑1983 alleging that the arrears of rent were to be deposited on or before 28‑3‑1983 and, therefore, the application was made 28 days before the default had actually taken place and was, therefore, premature. I do not agree with this contention of Mr. Ali Ahmad Tariq. It might be noted that admittedly the appellant had not deposited Rs.15,500 or any other amount as the arrears of rent on or before 28‑4‑1983. An order for striking off defence was made on 12‑12‑1983 which was a date about 8 months after the date on which the arrears were to be deposited in Court. Hence even if the application of striking off the defence was premature when it was filed it had become mature on 28‑4‑1983 and the action taken on 12‑12‑1983 on this application of striking off the defence was legal and justified P L D 1983 S C 1 is relied upon. Apart from that it was not at all necessary for the Controller to pass the order or to exercise his jurisdiction to strike off the defendant only when an application for doing so was made by the landlord. In this connection the relevant provision of Sind Rented Premises Ordinance, 1979 may be reproduced as under:‑ "16(1) (2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such; period as may be specified by the Controller in the order made in this behalf." This does not provide anywhere that the Controller has to strike off the defence only when an application was made to him in this behalf by the landlord. 6. 1 am, therefore, satisfied that the Controller was perfectly justified in striking off the defence of the appellant for non‑payment of arrears of rent and non‑compliance of order, dated 21‑3‑1983 which was valid legal and justified. Consequently, I uphold the order of the' Rent Controller and dismiss the appeal. The respondent shall put the appellant in possession of the house within 45 days from the date of this order. A.A. Appeal dismissed ‑