1986 PLP 290 (MLD)

Muhammad Sadiq for Respondents. Date of hearing: 3rd December, 1985. This appeal is directed against the order, dated 2‑10‑1984 passed by XV Senior Civil Judge and Rent Controller, Karachi allowing the application under section 16(2) of Sind Rented Premises Ordinance, 1979 filed by the respondents and thereby striking off the defence of the appellant on the ground that he had not deposited the rent in the Court in compliance of an order for deposit of tentative rent passed on 24‑5‑1982.

2. Respondents had filed an application under section 15(2) of Sind Rented Premises Ordinance for the ejectment of the appellant from premises bearing shop No.34, Amin Terrace and Ashraf Centre, Salim Frak Market, Plot No.R.C. 11/23, Fatia Kashiram Street, Karachi. The respondents claimed to be the owners of this shop. They alleged that the appellant was their tenant in the shop at a monthly rent of Rs.40 payable on the lot of every calendar month. They alleged that the appellant was habitual defaulter in payment of rent and had failed to pay the rent of the said shop from October, 1981 till the date of filing of application I.e. 24‑1‑1982 in spite of repeated demands. It was also alleged that the appellant had sublet the premises to somebody else without consent of the respondents'.

3. The appellant contested the ejectment application. He admitted that the respondents were landlord while he was the tenant. He also admitted the rate of rent. He, however, denied that the rent was payable on the 1st of every calendar month. He alleged that it was the respondents, who had refused to accept the rent for the month of October, 1981 hence the appellant remitted the same by. Money‑order but the respondents refused to accept the Money‑order without assigning any reason. He had, therefore, started depositing the same in the Court of the Controller. He has alleged that the respondents are greedy persons and want to eject the appellant so that they may be able to rent out the shop on higher rent and also may be able to earn Pugree.

4. The case was .set down for recording of evidence. On behalf of the respondents, Yaqoob, the husband of respondent No.1 and father of respondents Nos.2 and 3 filed his affidavit of evidence on 16‑8‑1982. On 27‑11‑1983, he subjected himself for cross‑examination but the appellant did not cross‑examine him. On 19‑1‑1984, an application under section 16(2) of the Sind Rented Premises Ordinance was filed alleging that the appellant had failed to comply with the order, dated 24‑5‑1985 passed by the learned Rent Controller for depositing of future monthly rent. It will be useful to reproduce the tentative order for depositing the rent:‑‑ "Heard the Advocates for the parties and perused the rent accounts. There is no dispute over the rate of rent and the period the opponent is depositing the rent from the month of October, 1.982 at the rate of Rs.40 p.m. in Misc. Rent Application No.568/82. This deposit is adjusted in the present case the opponent is further directed to deposit the monthly rent for the month of July, 1982. at the rate of Rs.40 on or before 10th August 1982 he should go one depositing the future rent before 10th of each succeeding month.

5. In reply to the application under section 18(2) of Sind Rented Premises Ordinance, the Advocate for the appellant filed statement at the Bar alongwith which he submitted true copy of the extract of deposits made in ledger 328 in Misc. Rent Case No.568 of 1982 showing various deposits made therein

6. During the course of arguments before the learned Rent Controller it was contended that direction was given to the appellant to deposit the rent in Rent Case No.355 of 1982. He, however, allowed to have the adjustment of the deposit of rent in Misc. Rent Case No.568 of 1982 in this rent application. But for the subsequent deposit it was directed that the same should be made in Rent Case No.355 of 1982 and not in Misc. Rent Case No.568 of 1982. The fact that the appellant continued to deposit the rent in that Mae. Rent case amounted to disregard of the order of the learned Rent Controller. This argument was, however, not accepted by the learned Rent Controller. She observed that the appellant had not been directed to deposit rent in the present case only but the words that have been used are that he should go on depositing future rent which can even mean that the appellant may continue to deposit rent in Misc. Rent Case No.568 of 1982. She, therefore, did not accept that contention. She, however, allowed the application for striking off the defence on the ground that from the perusal of the certified copy of the extract of deposit of rent, it appears that the rent for the month of August 1983 and that of November 1983 was not deposited by the appellant in time, as such there was a default of these two months.

7. I have heard Mr. Ajeebullah Jaswal, Advocate, for the appellant and Mr. Muhammad Sadiq, Advocate for the respondents.

8. Mr. Ajeebullah Jaswal has pointed out that the extract of ledger 328 produced by him alongwith his statement at Bar contained a clerical mistake. He pointed out that the deposit, dated 8‑8‑1983 which was made vide receipt No.08393 showed that it was for Rs.40 only. He, however, produced the original receipt before me which shows that it was for Rs.120. Mr. Sadiq, Advocate for the respondents did not challenge the genuineness of this receipt. It would, therefore, appear that the Nazir or his clerk by mistake showed Rs.80 as short in the extract while referring to receipt No.08393, dated 8‑8‑1983. The rent is admittedly Rs.40 per month. Hence, the delay of payment of rent for the months of August and November, 1983 stands fully explained. It is, therefore, quite clear that in fact there was no delay whatsoever in payment of rent of any one of these two months. The Courts can always look into clerical mistake and give allowance for the same as soon as it is brought to their notice. The appellant cannot be made to suffer for the clerical mistake of the Nazir or his Cashier or the Clerk of that office.

9. Mr. Muhammad Sadiq also referred to 1984 C L C 3102 and submitted that where a tenant was depositing rent in Miscellaneous application despite order passed by the Rent Controller for depositing of rent in rent case it amounted to non‑compliance with the order of the Rent Controller and the defence of the opponent ought to have been struck off. I have perused this ruling, it does not apply to the facts of the present case. Firstly, there is no clear direction of the Controller that the rent should be deposited in rent case No.355 of 1982 and not in Misc. Rent Case No.568 of 1982 as has been rightly pointed out by the Rent Controller. Apart from that, in this ruling deposit of rent which was said to have been made was not proved and, therefore, the learned Rent Controller was justified in ignoring that ruling. The observation of the learned Single Judge of the High Court that even if rent had been deposited in the miscellaneous proceedings there was no compliance of the order of the Controller was an obiter dicta and cannot be considered to be an authority on the point.

10. I, therefore, allow the appeal and set aside the impugned order of the learned Rent Controller. I direct the parties to appear before the District Judge, Karachi South on 19‑12‑1985, who shall assign the case to the Controller having jurisdiction and direct that Controller to dispose of the case expeditiously and if possible within three months of the date of first appearance of the parties before him. The appellant is further directed to keep his evidence ready to be produced before the learned Controller on that date. H. B. T. Appeal allowed.