1986 PLP 1297 (CLC)

The respondent filed Rent Case No. 425/83 against the appellant, on 29‑1‑1983, for his ejectment from the rented premises viz. a tenement on first floor, 121‑J , Block‑2 P . E . C . H . S . , Karachi on the ground of default in payment of rent and unauthorised alterations in the premises. The appellant filed written statement making denial of the allegations. On an application under section 16 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), the learned Controller passed following order on 16‑5‑1983:‑‑ "This order will dispose of application under section 16(1) of Sind Rented Premises Ordinance, 1979, dated 3‑4‑1983 wherein the applicant has prayed to deposit the arrears of rent from July, 1982. The rent for the month of July, August and September, 1982 "at the rate of Rs.1,500 per month less Its.1,500 amounting to Rs.3,100 and from October, 1982 to April, 1983 at the rate of Rs.700 per month amounting to Rs.4,

200. The total arrears which the applicant has claimed is Rs.7,

200. The opponent in his, objections has stated that from November, 1982 to March, 1983 amounting to Rs.3,500 is due. I have heard learned counsel for the parties and perused the statement of account and direct the opponent to deposit arrears of rent of Rs.7,200 on or before 10th of July, 1983 and he is further directed to pay rent at the rate of Rs.700 per month on or before 10th of each month pending decision of this case, failing which his defence shall be struck off. The applicant will not withdraw the disputed rent of Rs.3,700." The respondent made an application under section 16(2) of the Ordinance, on 18‑7‑1983, that the appellant had not complied with the order, dated 16‑5‑1983 and his defence may be struck off. After hearing the parties, the learned Controller passed the impugned order re-produced herein below:‑‑ "By rent order, dated 16‑5‑1983, the opponent was directed to deposit arrears of rent of Rs.7,200 on or before 10th of July, 1983. Side by side, the opponent was also directed to deposit future rent at the rate of Rs.700 p.m. on or before 10th of every subsequent month. I have heard the learned counsel for the parties. I have gone through the report of Nazir of this Court, dated 22‑12‑1983 according to which the arrears of Rs.7,200 were deposited on 7‑7‑1983. The opponent paid rent of June and July, 1983 on 1‑8‑1983. The rent for August, 1983 was paid on 8‑9‑1983. However, the rent for September, 1983 is not paid at all and the report shows that on 2‑11‑1983, the opponent has paid Rs.700 only. From abovestated state of affairs, it is crystal clear that the opponent violated the rent order, dated 16‑5‑1983, twice, one which he paid rent of June and July, 1983 on 1‑8‑1983 and again when he did not pay the rent of September, 1983 at all. So even if the delay of June, 1983 is condoned, there is no explanation for the default committed in respect of rent for September, 1983. I, therefore, hold that the opponent by not depositing the rent for September, 1983, has committed default within the meaning of section 16(2) of the Sind Rented Premises Ordinance, 1979 and his defence "is liable to be struck off. I strike off the defence of the opponent and while allowing the application made for this purpose, direct the opponent to handover vacant possession of the premises to the applicant within 30 days from the date of this order." The learned counsel for the appellant has contended that the order of the learned Controller, dated 16‑5‑1983 did not take into consideration the account of rent furnished by the appellant and he made arbitrary order that arrears of Rs.7,200 'as calculated by the respondent /landlord should be deposited by a specific date and such order was bad in law and non‑compliance thereof, if at all attributable to the appellant, did not warrant striking off the defence. He has next contended that the order was fully complied with as the arrears were deposited within due date and the current rent also was deposited without any default. He has urged that the learned Controller has struck off the defence of the appellant on the ground that a rent for the month of September, 1983 was not paid but the appellant holds a receipt confirming that the rent for that month was actually deposited within time and no default was committed. On the other hand, the learned counsel for the respondent has urged that the order, dated 16‑5‑1983 was passed after taking into consideration the statements of the rent accounts filed by the parties and the learned Controller took precaution of safeguarding the interest of the appellant by mentioning in the order that the deposited amount would not be withdrawn by the respondent /landlord till its final determination. He has further urged that the respondent would not deny that rent for the month of September, 1983 was paid in time but it is evident the rent was not deposited for the month of June, 1983 in accordance with the order, dated 16‑5‑1983 and the defence of the appellant was liable to be struck off and the Controller did not have powers to have condoned the default as indicated in the order, dated 9‑2‑1984. He has placed reliance on the cases reported in 1982 SCMR 616 and 1982 S C M R

985. By order of the learned Controller, dated 16‑5‑1983, the appellant was directed to deposit arrears of the rent amounting to Rs.7,200 before 10th of July, 1983; and he was further directed to deposit monthly rent at Rs.700 before 10th of each month. This order was passed under the provisions of section 16(1) of the Ordinance. The arrears were calculated upto the month of April, 1983. The report of the Nazir shows that the sum of Rs.7,200, which represented the arrears of the rent, was deposited on 7‑7‑1983 and the deposit was well within time specified in the order. It further appears from the report that a sum of Rs.700 was deposited on 9‑6‑1983, Rs.1,400 on 1‑8‑1983, Rs.700 on 8‑9‑1983, Rs.700 on 2‑11‑1983, and Rs.700 on 8‑12‑1983. These sums represented the rent for the period subsequent to the passing of the order, dated 16‑5‑1983. The contention of the learned counsel for the appellant is that the amount of Rs.700 deposited on 9‑6‑1983 represented rent for the month of June, 1983, and the amount of Rs.1,400 deposited on 1‑8‑1980, was the rent for the months of July and August 1983 and the amount of Rs.700 deposited on 8‑9‑1983 was the rent for the month of September, 1983 and the remaining two sums of Rs.700, each, represented the rent for the months of November and December during which they were deposited. He has contended that the rent for the month of October was paid and he was in possession of such receipt but it was not mentioned in the report of the Nazir. He has contended that the amount of Rs.7,200 deposited as the arrears of rent included the rent for the month of May, 1983. The contention of the learned counsel for the respondent is that the arrears were calculated upto the month of April, 1983 and the amount of Rs.700 deposited on 9‑6‑1983 was the rent for the month of May, 1983, and the rent for the month of June which was to be paid on or before 10th of July, 1983 was not paid and the rent for the month of July were collectively deposited on 1‑8‑1983. He has, of course, conceded that rent for the month of September, 1983 was deposited in time. The order of the learned Controller, dated 16‑5‑1983, clearly bears out that the arrears of rent to the tune of Rs.7,200 were calculated upto the month of April, 1983. The order for deposit of future rent was passed in the middle of month of May, 1983 and the rent for that month was to be paid on or before 10th of June, 1983. A sum of Rs.700 was actually deposited on 9‑6‑1983. The rent for the month of June, 198'3 was to be deposited on or before 10th of July, 1983 but the rent for that month does not seem to have been deposited in the month of July, 1983 as the sum of Rs.7,200 deposited on 7‑7‑1983 represented the amount of arrears. The sum of Rs.1,400 deposited on 1‑8‑1983 was obviously rent for the months of June and July, 1983 in accordance with the order of the learned Controller. If the argument of the learned counsel for the appellant that the deposits for the monthly rent were made in advance were accepted, there would be default in payment of rent for the month of May as the sum of Rs.7,200 deposited towards the arrears of the rent did not include the rent for the month of May, 1983. But it appears that the rent was not paid for the month of June, 1983 and it was deposited alongwith the rent for the month of July, 1983 on 1‑8‑1983. The learned Controller seems to have condoned late deposit of the rent for: the month of June, 1983. But there is a Supreme Court authority in the case M. Nazir v. S. Shaukat Ali, reported in 1982 S C M R 985 that delay of even one day in compliance of the order of the Controller for depositing future rent could not be condoned by the Controller. In another case Gulzar Ahmad Peerzada v. Additional District Judge, Lahore and others 1982 SCMR 616 also it was held by the Supreme Court that even one day's delay in compliance with the order for depositing of tentative rent made by the Controller could nor be condoned. Accordingly, the order of learned Controller condemning delay in depositing the rent for the month of June, 1983 was not in accordance with law and cannot be sustained. Of course, the learned Controller has struck off the defence of the appellant on the ground that rent was not deposited in time for the month of September, 1983, but evidence has been produced that rent for that month was actually deposited in time. The order of the learned Controller for striking off the defence on that ground is not sustainable but his order containing the late deposit of rent for the month of June, 1983 also is not sustainable. However, the result is that the appellant had made himself liable for the striking off his defence by not depositing the rent for the month of June, 1983 in accordance with the order of the Controller and his appeal would not succeed. The appeal is dismissed with no order as to costs. The appellant is given three months time to vacate premise and handover its vacant possession to the landlord. A. A . Appeal dismissed