1986 PLP 1504 (CLC)

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979, is from the order, dated 14‑9‑1985, passed by the IVth Civil Judge and Rent Controller, Karachi, whereby he has struck off the defence of the appellant due to non‑compliance of his order, dated 7‑7‑1985, in the following circumstances.

2. On 27‑1‑1985, the respondent filed an application under section 15 of the Ordinance for eviction of the appellant from building situated on Plot No. 1189, Sector 15‑B, Buffer Zone, North Karachi, for non‑payment of rent from June, 1984.

3. In the written statement the appellant stated that he had paid a sum of Rs.6,000 in cash on account of rent for the months of June, July and August, 1984, and further sum of Rs.12,000 towards the rent for the months of September, 1984 to February, 1985, for which amounts the respondent executed receipts.

4. Thereafter, the rent account was filed by the respondent stating that a sum of Rs.20,000 was outstanding from 1‑6‑1984 to 31‑5‑1985. To this objections were filed by the appellant stating that he had paid a sum of Rs.6,000 in cash as rent for the months of June to August, 1984 and a sum of Rs.12,000 on account of rent for the months of September, 1984 to February, 1985.

5. The Controller gave opportunities to the appellant to produce receipts for the two sums of Rs.6,000 and Rs.12,000 to support the stand taken by him in his written statement as well as in the objections but no receipts were produced. He, therefore, ordered the appellant to depsoit a sum of Rs.24,000 being the arrears of rent from June, 1984 to May, 1985 within 60 days from the date of the order. He further directed the appellant by the order, dated 7‑7‑1985, to deposit future monthly rent at the rate of Rs.2,000 per month before the 10th of each succeeding month.

6. This order was not complied with at all. Therefore, on 15‑8‑1985, the respondent filed an application under section 16(2) of the Ordinance which resulted in the order of eviction of the appellant giving rise to the present appeal.

7. It is an admitted fact that no rent has been deposited by the appellant. It is, however, contended by the learned counsel for the appellant that the order, dated 7‑7‑1985, was an illegal order and, therefore, it was not necessary for the appellant to have complied with the same. He submitted that the Controller has not considered the two amounts paid by the appellant i.e. Rs.6,000 and Rs.12,000 to the respondent for which the respondent gave him receipts, photostat copies whereof he has now annexed to the memorandum of appeal.

8. I had called for the R&P and meanwhile issued notice of the application for the stay of the execution proceedings to the respondent. Pursuant to the same now Mr. Iqbal Ahmad learned counsel for the respondent is present.

9. Taking up the contention of Mr. Faizanul Haq learned counsel for the appellant that the two payments made by the appellant were not considered by the Controller while passing the order, dated 7‑7‑1985, it may be stated that the same is without any substance for no receipts were produced before the Controller as Stated by him in the order. Mr. Iqbal Ahmad learned counsel for the respondent has pointed out that after the filing of the statement of accounts on 28‑3‑1985, the hearing was adjourned six times. Even otherwise, no objections to the application under section 16(2) of the Ordinance were filed and no' receipts were produced before the Controller. In these circumstances the contention of the learned counsel for the appellant that the order, dated 7‑7‑1985, or that the order dated 14‑9‑1985, striking off the defence of the appellant are illegal orders has no substance.

10. It may be stated that the photostat copy of the receipt of Rs.12,000 bears the date 5‑9‑1985, which by itself belies the stand of the appellant taken by him in the written statement that he had paid the amount of Rs.12,000 on 5‑9‑1984. It may be noted that the written statement was filed in March, 1985. The objections to the application under section 16(1) of the Ordinance were filed on 7‑7‑1985.

11. The learned counsel for the respondent has filed a counter -affidavit to the application for stay of execution of the eviction order wherein the execution of the receipts is denied and it is stated that they are forged and do not bear the signature of the respondent. Alongwith the counter‑affidaivt he has also produced a photostat copy of the telegram, dated 26‑1‑1985, wherein the stand taken by the appellant was that he had paid rent upto December, 1984. I do not however, take this telegram into consideration. Nonetheless, it is clear that the receipt, dated 5‑9‑1985 seems to have been prepared much after the orders, dated 7‑7‑1985. If it were in existence it would have been produced before the passing of the order, dated 7‑7‑1985 or at least before the passing of the impugned order.

12. Mr. Faizanul Haq learned counsel for the appellant then argued that the appellant had deposited a sum of Rs.10,000 as security deposit but this plea is taken for the first time before me and no such plea was taken in the objections file in reply to the application under section 16(1) of the Ordinance before the Controller at the time of passing the tentative order of rent. The appellant did not filed any objection to the application under section 16(2) of the Ordinance. In any case it relates to the defence which could be considered after it was struck, off by the impugned order. The appellant was bound to comply with the order of the Controller as held by their Lordships of the Supreme Court in Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496 and Mst. Akhtarjehan Begum and 4 others v. Muhammad Azam Khan PL D 198? S C

1. I may quote the relevant observations from the first mentioned case, which are:‑ "4 The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of the course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication." 12 I, therefore, find no merit in this appeal and dismiss it. A . A Appeal dismissed