1989 PLP 4361 (MLD)

This first Rent Appeal is directed against the order dated 12-3-1987 of Vth Senior Civil Judge & Rent Controller, whereby the defence of the appellant has been struck off.

2. The rent case was filed on various grounds in the year 1985. During the pendency of the rent case, an application under section 16(1) of the Sind Rented Premises Ordinance, 1979 was moved on 8-11-1982. The Rent Controller, after lapse of 2 years on 4-11-1984 passed a tentative rent order, thereby an application under section 16(2) was moved by the respondent, to which objections were filed and finally the Rent Controller, by an order dated 9-8-1986, dismissed the application under section 16(2) of the respondent and directed the appellant to pay the arrears amounting to Rs.10,500 within one month from the date of the order and also future monthly rent from August, 1986 C- Rs.700 per month on or before 10th of every calandar month. Once again an application under section 16(2) of the Ordinance was moved on 14th January, 1987 and the Rent Controller finally came to the conclusion that some arrears were paid by one day's delay, therefore, the defence of the appellant was struck off.

3. I have heard Mr. Malik M. Saeed. It is argued by the learned counsel that earlier application under section 16(1) of the Ordinance on which the order was passed by the Rent Controller, an action was taken to the extent that Rent Controller has to amend the order and passed a fresh order under section 16(1) of the Ordinance, which is not in accordance with law. He has referred to case reported in PLD 1985 Kar. 43 and PLD 1985 Kar.

698. It is argued by the learned counsel that this is a default which is not wilful one as the intention of the appellant is to deposit the same. Mr. Javed Raza, Advocate for the respondent, argued that impugned order is proper and even on one day's default the Supreme Court has held that the defence of the party could be struck off. He has referred to 1982 SCMR

392. The appellant was directed by an order dated 9-8-1986 to deposit the arrears within one month. He deposited Rs.4,000 on 8-9-1986 while remaining amount of Rs.6,500 was deposited on 9-9-1986 the following day and there is a delay in payment by one day. The contention of Mr. Javed is that this default is deliberate as appellant was not depositing the rent since 1984, therefore, he was liable to pay regular rent. It is an admitted position that Rent Controller realised his mistake and amended the order earlier passed in the year 1984. The subsequent order was passed after lapse of 2 years in the year 1984. There is force in the contention of Mr. Malik M. Saeed that no action can be taken without an application under section 16(1). The application earlier filed on 8-11-1982 was disposed of by the Rent Controller finally by an order dated 4-11-1984. Thereafter while disposing of an application under section 16(2), which he dismissed, passed another order under section 16(1), which in view of the cases reported is illegal. When the order is defective then it could be challenged in any manner on points of law and facts. Moreover, the intention of the appellant from the facts, it appears, was to pay the arrears and there is only delay of one day, which cannot be called as wilful default in compliance of tentative rent order. In these circumstances, I accept the appeal and set aside the rent order of the Rent Controller. The Rent Controller is directed to proceed with the case and decide the case within 6 months. M.Y.H./A-617/K Appeal accepted.