1988 PLP 1564 (MLD)

This appeal arises from the order of the learned VIII Senior Civil Judge/Rent Controller (South) Karachi, dated 18th September, 1985, whereby he has struck off the defence of the appellant for committing default in payment of rent for the month of August, 1977.

2. The learned counsel for the appellant contended that the order for payment of rent was passed on 15‑8‑1979, whereby the appellant was directed to deposit the rent for the month of August, 1977 and the rent for the further months from January, 1978 onwards. According to him in compliance with the order the appellant deposited the rent for the period from 1‑8‑1979 to 31‑12‑1979 as well as the rent for the month of August, 1977, i.e. in all six months' rent amounting to Rs.4,500 on 28‑1‑1979. An application for striking off defence was presented by the respondent on 3‑5‑1983. There was no mention made in this application of the month for which the default was allegedly committed by the appellant. The learned Rent Controller, however, vide his impugned order recorded the conclusion that the rent for the month of August, 1977 was mot paid by the appellant pursuant to the order of the Court dated 15‑8‑1979.

3. I have gone through the record with the assistance of the learned counsel for the parties. The learned counsel for the respondent candidly admits before me that the rent for the month of August, 1979 was undoubtedly paid by the appellant and that there was no default in respect of payment of rent for that period. He however, insisted that the rent for the month of January, 1983 which was payable on 15‑2‑1983 was admittedly paid on 27‑2‑1983 and hence there was a default in payment of rent for the month of January, 1984. The appellant had tendered an explanation with regard to the said delay. The learned Rent Controller has although while considering a decision reported in 1984 C L C 931 made an observation that in the instant case also the appellant had produced certificate of illness of one of its officers which did not state that the said officer was unable to move or talk and that the default committed was not convincingly explained. He has, however, as is evident from the tenor of the order, considered the default in regard to August, 1977 for which a period of more than 6 years had passed since the making of the tentative rent order. The overall reading of the impugned order givens an impression that the Rent Controller was not clear in his mind with regard to the period for which the default had been committed and the explanation for the period of default tendered by the appellant. He has jumbled up the matter with the result that it has resulted in the passing of the impugned order. I am clearly of the opinion that had the Rent Controller gone through the proper facts and circumstances of the case one does not know what would have been the ultimate result of the application for striking of the defence. In all fairness to the parties, I, therefore, deem it necessary to set aside the impugned order and remit the case to the Rent Controller for passing of fresh order on the respondent's application dated 3‑5‑1983. M.Y.H./N‑101/K Case remanded.