1988 PLP 84 (MLD)

By this First Rent Appeal under section 21 of Sind Rented premises Ordinance, 1979 (hereinafter referred to as the Ordinance), use order dated 26 2-1987 of IIIrd Senior Judge, Karachi (East), has been challenged. Rent case was filed under section 15 of the Ordinance by the respondent on various grounds. The written statement was filed and also affidavits in evidence by the parties. In the meanwhile an application under section 16(1) of the Ordinance was moved by the respondent on 8-8-1985, to which objections were filed by the appellant on 28 9-1985. The Rent Controller passed a tentative rent order on 26-2-1986, whereby he directed the appellant to deposit arrears from June, 1981 to January, 1986, the rent for.56 months amounting to Rs. 28,000 on or before 30-4-1986, and the rent of February, 1986, at the rate of Rs.

500. He also directed the appellant to deposit further rent for the month of March. 1986, on or before 16th of succeeding month Court gad respondent could withdraw the rent so deposited in the in Rent Case No. 3362/82. This order was not complied with and case of the appellant is that rent is being deposited since June, 1981, in Miscellaneous Rent Case, as stated above. I have heard Mr. Sadiq. It is contended by the learned Counsel that appellant has not committed any default but was all along depositing the rent in Miscellaneous Rent Application in good faith. It is argued that Nazir's report was not correct, therefore, the order passed by the Rent Controller, is liable to be set aside. He has referred to the cases reported in 1986 S C M R 1069, and 1987 S C M R 1013. Mr. M. Shaft Mohammad appearing for the respondent submitted that appellant has failed to produce any evidence about the deposit of rent in Miscellaneous Rent Case and that facts of both the cases relied upon by Mr. Sadiq are different than the present case. The relationship between the parties and the rate of rent is not disputed. The contention of the appellant is that he has been depositing the rent since June, 1981, in Miscellaneous Rent Case No. 3362/82, and this plea was specifically taken in the objections filed to application under Section 16(1) of the Ordinance. On 8-8-1985, respondent made an application under Section 151, C.P.C., requesting to transfer the amount of rent deposited in Miscellaneous Rent Application to the present case. Thereafter, the appellant made an application dated 6-7-1988 for dismissal of the rent case on the ground that property is situated within the Cantonment Area and the Court has no jurisdiction. Simultaneously, an application under Section 16(2) was also moved by the respondent and Rent Controller by an impugned single order dated 26-2-1987, disposed of both the applications and the defence of the appellant has been struck off. In case of Major (Recd) A.S.K. Samad v. Lt: Col. (Retd) A.Hussain and another reported in 1987 S C M R 1013, it has been held as under: "According to appellant, he is the tenant of respondent No.2, who is wife of respondent No.1, for the reason that, the agreement of lease was executed by her as the owner of the demised premises. The amount of rent deposited by appellant in Court was being withdrawn by respondent No.2 from time to time, and she is also a co-applicant. It is obvious that appellant continued to deposit rent in court, according to his earlier practice, in Miscellaneous Rent Case No. 953 of 1986, and for the only fault committed by him in depositing rent in that case, rather than in the case concerned, namely, ejectment Application No. 1823 of 1977, he cannot be condemned for having been guilty of dis-obedience of the order of the rent Controller dated 20-9-1987 so as to entail penalty of his eviction from the demised premises. The same view has also been taken in Civil Petitions for Special Leave to Appeal Nos. K-15 of 1984 and K-16 of 1984. In view of the above, case on the deposit of rent is proved in a Miscellaneous Rent Case after the passing of tentative rent order. The defence cannot be struck off. However, the appellant has not been able to satisfy for the deposit of the future rent and arrears m terms of the tentative rent order, therefore, on the interest of justice, I feel that when there is no denial of an amount is the Miscellaneous Rent Case from the other side, the Rent Controller should hold an enquiry on the basis of evidence Produced by the appellant and to satisfy actually that the rent had been deposited by the appellant. In these circumstances appellant should produce any before the Rent Controller with an opportunity to the other side to rebut the same. The appeal is allowed and the order of Rent Controller is set aside. Consequently, the rent case will proceed in case the arrears were deposited or future rent was being deposited from time to time in Miscellaneous Rent case. However, it is open to the Rent Controller to an appropriate order on the evidence and law. M.Y.H./A-329/K Appeal allowed.