1999 PLP 2002 (CLC)

‑‑‑‑S. 16(2)‑‑‑Order of deposit of rent‑‑‑Extension of time‑‑‑Rent Controller was not competent to extend such time. G.Z. Malik v. Mrs. Khayyam Baig 1991 CLC 1148 rel. Mahmood Habibullah for Appellant. S. Nasir Hussain Jaffri for Respondent. . Date of hearing: 9th December, 1997 . Appellant has called in question the order, dated 23‑8‑1997 of learned IIIrd Senior Civil Judge/Rent Controller, Karachi passed in Rent Case No.306 of 1997 whereby he struck off the defence of the appellant and allowed application under section 16(2) of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, and directed to vacate the premises in question and to hand over possession to the respondent within 30 days. Precisely the facts of this case are that respondent filed ejectment application under section 15 of the Ordinance against the appellant on the grounds of default in payment of rent, alterations, additions without his consent and permission and personal bona fide need. During the pendency of the rent case an application 'under section 16(1) of the Ordinance was moved by the respondent and after hearing the counsel for the parties a tentative rent order was passed on 5th December, 1996 directing the appellant to deposit the arrears of rent since June, 1995 to December, 1996 at the rate of Rs.2,700 per month within one month's time amounting to Rs.51,

300. He was directed to deposit future monthly rent at the above rate from January, 1997 onwards on or before 10th of each succeeding calendar month. The rent deposited in Miscellaneous Rent Case No.584 of 1996 was ordered to be adjusted. However, respondent was directed not to withdraw the rent from June, 1995 to June, 1996. Since tentative rent order was not complied with as such an application under section 16(2) of the Ordinance was filed by the respondent which was allowed on 23‑6-1996 with an observation that appellant has committed a clear default of 6 days in depositing the rent of the month of January, 1997. I have heard Mr. Mahmood Habibullah, counsel for the appellant and Mr. S. Nasir Hussain Jaffri, counsel for the appellant at length and have perused It is mainly contended that by appellant's counsel that he has not committed any default in payment of rent and the impugned order has been passed by non‑reading as well as mis-appreciating the factual and legal aspect of the case. According to him, appellant was directed to deposit arrears of rent from June, 1995 to December, 1996 as per tentative rent order, dated 5‑12‑1996 at the rate or Rs.2,700 within one month's time and was further directed to deposit future monthly rent at the above rate from January, 1997 onward before 10th of each succeeding calendar month. The appellant has deposited the arrears and also the monthly rent on 9‑I‑1997. As such he has committed no default in payment of rent. He further, contended that so far monthly rent of January, 1997 is concerned, appellant deposited the same on 16‑2‑1997 as he became seriously ill and was under treatment from 8‑2‑1997 to 15‑2‑1997 being chronic patient of diabetic, hypertension and heart disease. In view of this there has happened a delay of six days in depositing the rent which factually was not considered by the Rent Controller. In support he placed reliance on case‑law reported as PLD 1991 SC

711. Mr. Nasir Hussain Jaffri on the other hand vehemently refuted the arguments advanced by appellant's counsel and stated that learned Rent Controller has rightly passed the impugned order terming the appellant a: defaulter. According to him, appellant has admittedly deposited the rent for the month of, January, 1.997 on 16‑2‑1997 which according to the tentative rent order was to be deposited on or before 10th of each succeeding calendar month and. thus committed a default of six days in depositing the rent. He next argued that learned Rent Controller was not empowered to condone such delay or to extend the time of depositing the rent on any ground. In support he placed reliance on the case law reported as PLD 191 SC 484 and 1991 CLC 1748. The learned Rent Controller while passing the tentative rent order has specified with regard to the deposit of arrears of rent and future monthly rent on or before 10th of every succeeding calendar month. As such appellant was bound to deposit the monthly rent on or before 10th of every month. The Nazir's Report shows that appellant has deposited Rs.11,500 in Miscellaneous Rent Case No.584 of 1996 and thereafter, he deposited Rs.37,

100. In this way he has deposited Rs.48,600 upto 5‑1‑1997 towards the arrears of rent. So far monthly rent of December, 1996 is concerned, Nazir says that same was deposited on 9‑1‑1997 but onwards he has mentioned that rent of January, 1997 was deposited on 16‑2‑1997 just after six days of the scheduled time. The contention that appellant could not deposit the rent of the month of January, before 10th February, 1997 as he was ill being patient of diabetic and hypertension is concerned, it has no force mainly for the reasons that perusal of medical certificates shows that appellant was treated as out door patient and in such circumstances he could have easily gone and deposited the rent within time. The question whether Rent Controller is competent to extend the time and to allow the tenant to deposit the rent beyond the period fixed in section 16 of the Ordinance is concerned, I am of the view that it is not within the competence of Rent Controller to extend such time. Subsection (2) of section 16 of the Ordinance states that 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 be put into possession of the premises within the time prescribed by the Rent Controller. This provision of law shows that there is no option except to strike off the defence in case of non‑payment of arrears of rent or monthly rent. This Court in the case of G.Z. Malik v. Mrs. Khayyam Baig 1991 CLC 1148 has observed that Rent Controller has no power at all to extend time for deposit of rent fixed by him in his order under section 16(1) of the Ordinance. The case of Noor Muhammad v. Mehdi PLD 1991 SC 711 referred by appellant's counsel is of no help to him as in the cited case there was default of purely technical in nature and there being no deliberate or contumacious disregard of the order of the Rent Controller as the rent was deposited in another miscellaneous rent case. Under these circumstances, there seems to be no justification to interfere with the order of Rent Controller. The appeal being devoid of merit is dismissed with no order as to costs. However, appellant is allowed 60 days time to vacate the premises and to hand over its possession to the respondent. Q.M.H./M.A.K./H‑58/K???????????????????????????????????????????????????????????????????? Appeal dismissed.