1986 PLP 926 (MLD)

‑‑‑Ss.15(2) (ii), 16(1)(2) & 21(1)‑‑Ejectment of tenant‑‑Default in payment of rent‑‑Tentative rent order, non‑compliance of‑‑Striking off defence‑‑Tenant admittedly failed to deposit arrears of rent and future monthly rent according to directions of Rent Controller‑‑In absence of plausible explanation for non‑compliance of tentative rent order, defence of tenant, held, was rightly struck off by Rent Controller. Mubarak Hussain Siddiqui for Appellant. Ismail Rasani for Respondents. Date of hearing: 9th March; 1986. This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant/ tenant against the order of the Rent Controller passed under section 16(2) of the Ordinance striking off his defence in the case. The rent application was instituted by the respondent/ landlord against the appellant on the ground of default in payment of rent from September 1982 to October, 1983. Tentative rent order was passed in the case by the Rent Controller on 3‑10‑1984, whereby the appellant was directed to deposit arrears of rent amounting to Rs.10,450 before 30th October, 1984'and future monthly rent was to be deposited from 1‑10‑1984 before 10th of each month until disposal of the case. It is an admitted position that neither arrears of rent amounting to Rs.10,450 nor the future monthly rent from 1‑10‑1984 were deposited in Court as directed by the Rent Controller. Consequently the defence of the appellant was struck off by the Rent Controller on 21‑11‑1984. The present appeal was filed in this Court on 2‑1‑1985 and it is admitted by the learned counsel for the appellant that arrears of rent‑ and the current monthly rent were deposited for the first time in this Court pursuant to the order of this Court dated 11‑8‑1985. Mr. Mubarak Hussain Siddiqui, learned counsel for the appellant firstly contended that at the time the Rent Controller passed the order for deposit of arrears of rent in Court there were no arrears due against the appellant who had already paid rent upto November, 1983, which fact was not noticed by the Rent Controller. It is next contended by the learned counsel that the eviction application was premature as on the date of presentation of ejectment application there were no arrears of rent due against the appellant. The contentions of learned counsel did not impress me. The tentative rent order was passed in this case on 3‑10‑1984 in presence of the counsel for the appellant and it is mentioned in the order that no documents were. filed before him to show payment of arrears of rent. In this appeal no doubt the appellant has produced a photostat of receipt dated .1st November, 1983 claiming to have been issued by the respondent towards the rent for November, 1983 and it is also claimed by the learned counsel for the appellant that his client is in possession of all the rent receipts for the period prior to November, 1983, but this contention cannot help the appellant, as admittedly no rent was paid by the appellant after November, 1983 and in any case there is no plausible explanation for the default committed in respect of current monthly rent. The learned counsel for the appellant contended that his client was lying ill which resulted in his failure to deposit the current monthly rent in Court. Firstly no such explanation was offered before the Controller. In this appeal, the appellant has explained the default in depositing the rent in Court in paragraph 5 of the memo. of appeal as follows:

5. That .it appears that the respondents made an application under section 16(1) of Sin d Rented Premises Ordinance, copy of which was received by the appellant's Advocate but he could not contract the appellant and informed An about this application or passing of order thereon. The learned Rent Controller on 3rd October, 1964 passed an order for deposit of rent which was not communicated to the appellant by his Advocate. Unfortunately the appellant also fell seriously ill and was confined to bed from 24th of September, 1984 till last week of November, 1984." A reading of the above paragraph of appeal will show that it il claimed by the appellant that he was confined to bed from 24‑9‑1984 till last week of November, 1984. Neither the nature of illness is mentioned nor it is mentioned that on account of such illness the appellant was unable to move about or perform his usual duties. The allegation of illness is also not supported by any medical evidence. Apart from it according to appellant's own showing he recovered from illness in the last week of November, 1984, while the present appeal was filed in this Court or '2‑1‑1985. There is no explanation at all for not complying with the direction of the Rent Controller from November, 1984 to 2nd. January, 1985, when this appeal was filed. Over and above the admitted position is that the rent was deposited for the first time in this Court in pursuance of the order dated 11‑8‑1985. It is next contended by the learned counsel that the rent application was premature on the date of its presentation. This contention relates to the merits of the case and could only be considered provided the appellant complied with the tentative rent order. The appeal has no merits which is according dismissed, but the parties ‑are left to bear their respective costs. In view of the fact that the appellant has deposited all the arrears of rent in compliance with the order of this Court dated 11‑8‑1985, as stated by Mr: Mubarak Hussain Siddiqui, and that future rent is also deposited regularly by appellant, I grant six months time to appellant to vacate the premises subject to the condition that he will continue to deposit monthly rent in Court during this period. It is, however, clarified that as the appellant had disputed the arrears of rent claimed against him, the respondent will be at liberty to withdraw the rent y from December, 1983 upto date ad for arrears of rent he will only be entitled to withdraw the same after he established his claim in appropriate proceedings. H.B.T. Appeal dismissed.