1982 PLP 85 (CLC)

The facts leading to the filing of the above appeal are that the res pondent filed rent application for ejectment on the ground of default and also on account of personal requirement. The above application was resisted by the present appellant. The rent accounts were fled by the parties. According to the rent account filed by the respondent, the appellant was liable to pay arrears of rent, amounting to Rs.12,0; 0 for the period from April, 1978 till January, 1979, whereas according to the rent account filed by the appellant a balance of Rs.1,000 was to his credit with the respondent. In the above rent account the appellant had shown arrears for the period from May, 1978 up to December, 1978 at Rs.1,000 per month, amounting to Rs.8,

000. Against the above arrears, the appellant had shown a sum of Rs.9,000 being the alleged amount paid to the respondent at the time of the commencement of the tenancy. The learned Rent Controller passed the rent order on 3‑1‑1979 as follows :‑ "Parties counsel are present. Rate of rent and arrears of rent both are disputed. According to applicant rate of rent is Rs.1,200 and due from April, 1978 while according to opponent rate of rent is Rs.1,000 and due from May, 1978. I pass this rent order tentatively and direct the opponent to deposit Rs.10,800 being the arrears of rent from April, 1978 to December, 1978 at the rate of Rs.1,200 in Court before 3:st March, 1979. The applicant will not be entitled to withdraw Rs.1,200 from this amount till further orders, and from the remaining amount he will also be entitled to withdraw the rent at the rate of Rs.1,000 per month. The opponent is further directed to deposit future monthly rent at the same rate of Rs.1,200 in Court commencing from the month of January, 1979 before 15th each preceding month i.e. the rent of January, 1979 should be deposited before 15th February, 1979 and so on failing which his defence will be struck off. Put off to 14‑2‑1979 for issues." A perusal of the above‑quoted rent order indicates that before the Rent Controller the stand taken by the appellant was that he was in arrears for the period commencing from May, 1978 at the rate of Rs.1,000 per month. adjustment for the amount of Rs.9,000 was claimed expressly at the time of passing of the above rent order. The learned Rent Controller ordered deposit of arrears from April, 1978 up to December, 1978 at the rate of Rs.1,200 per month in Court before 31‑3‑1979 on the condition that the respondent shall withdraw from the amount so deposited at the rate of Rs.1,000 and not at the rate of Rs.1,200 which was deposited by the appel lant. It is an admitted position that the appellant had not deposited any amount towards the arrears of rent. Consequently, an application under section 13 (6) was filed which has been granted by the learned Rent Controller by his aforesaid order dated 11‑11‑1979, i.e. the order under appeal. 2.‑(a) In support of the above appeal Mr. Gulab M. Rang, learned counsel for the appellant has urged that notwithstanding that the appellant had not filed any objection to the respondent's above application under sec tion 13(6), the learned Rent Controller was under obligation to hold an inquiry in order to determine the rate of the rent as well as also the period since the appellant had disputed the same in his objection to the main rent application. Whereas it has been urged by Mr. Abdul Matin learned counsel for the respondent that the learned Rent Controller was not under any obli gation to hold an inquiry before the passing of the order under appeal for striking off the defence, particularly, as no request in that behalf was made by the appellant before the learned Rent Controller nor any objection to the respondent's application under section 13(6) was filed by the appellant. (b) In support of the above contention Mr. Gulab :N

1. Rang has referred to an unreported judgment dated 1‑3‑1976 passed in II Appeal Vo. 100 of 1975 (Arshad Ali Syed v. Mst. Shafaet Jehan Begum) by Fakhruddin G. fibrahim, J., whereas Mr. Abdul Matin has referred to the case of Mushtaque Hussain v. Muhammad Shaff (1979SCMR496). 1t is true that the above unreported judgment of Fakhrnddin J., supports the contention of the learned counsel for the appellant inasmuch as it has been held in that case that the Rent Controller should have held an inquiry before striking off the defence of the tenant. However, in the above recent Supreme Court case a contrary view has been taken and it has been held that the compliance of the tentative rent order under section 13(6) was a condition precedent for examining the defence pleas. It will be advantageous to reproduce hereinbelow para. 4 of the above judg ment, which reads as follows :‑ "It was conceded by the learned counsel that this client had not complied with the order of the learned Rent Controller and had not deposited the rent as directed, but his argument was, that as his client had in his, written statement taken up the plea of adjustment of certain amount spent by him and as even otherwise according to him, no rent was due on his part, therefore, in this state of affairs, the order directing the deposit of rent without first sorting out whether any rent was actually due from him after accounting for the claimed adjustments, was not justified. The contention has no merit. The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tanta mount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial , and adjudication." 3. 1n my view, if the tenant does not make an express request before the Rent Controller for holding an inquiry under section 13(8) before passing an order under section 13(6) for striking off defence, the tenant cannot have any grievance, even if it is to be held that such a course was open to the Rent Controller. In the instant case since no such request was made and inasmuch as even no objection was filed to the application under section 13(6), the learned Rent Controller was justified in passing the order for striking off the defence after obtaining a report from the Nazir of the Court on the questi3n of deposit of rent made by the appellant in furtherance of the aforesaid rent order. In this view of the matter, no exception can be taken to the order under appeal. The appeal, therefore, does not merit and hence the same is dismissed with no order as to costs. However, I grant at the request of the learned counsel for the appellant with the consent of the learned counsel for the respondent, 8 months time from today to the appellant for handing over vacant possession of the premises in dispute to the respondent" on the condition that he shall deposit regularly monthly rent in terms of the Rent Controller's order with the Nazir of the District Court; failing which the respondent sba!1 be free to file execution application. K. M. A. Appeal dismissed.