1995 PLP 833 (MLD)

Attaullah Khan for Appellant. Shamdas B. Chhangani for Respondent. Date of hearing: 7th February, 1993. The appellant was the respondent's tenant in the premises situated in Baldia Town, Karachi. The latter instituted ejectment proceedings against the appellant in the Court of Second Senior Civil Judge and Rent Controller, Karachi West, who on 28‑9‑1989 passed an order under section 16(1) on the Sindh Rented Premises Ordinance directing the appellant to deposit rent of Rs.60 per month in the Court, which had been tentatively fixed by him for the said premises. Subsequently, an application was filed before the learned Controller on behalf of the respondent, alleging that the appellant had failed to comply with the said order dated 28‑9‑1989 as he had failed to deposit rent in accordance with the learned Rent Controller's order. The said application was contested by the appellant who contended that the said order of the Controller had been substantially complied with since rent was being deposited in Misc. Rent Case No.638 of 1988, which had earlier been filed by the appellant against the respondent. However, the learned Controller vide order dated 26‑11‑1990 came to the conclusion that the order passed under section 16(1) of the Rented Premises Ordinance had been violated by the appellant and consequently he ordered him to forthwith hand over vacant possession of the said premises to the respondent, and hence this appeal.

2. The record of the case indicates that although the appellant was previously depositing rent at the rate of Rs.20 per month but the respondent claimed the same at the rate of Rs.750 per month. However, rent was tentatively fixed at Rs.60 per month by the learned Controller by the said order dated 28‑9‑1989. There is no controversy in regard to the fact that after passing of the tentative rent order the appellant started depositing rent at the rate of Rs.60 per month as per directions of the learned Controller, but the same was deposited not in the rent proceedings in which the said order was passed but in the miscellaneous rent case which was earlier pending between the same parties.

3. Mr. Shamdas B. Chhangani, learned counsel for the respondent, who appeared on behalf of the respondent has placed reliance upon the case of Ghulam Hussain v. Mst. Roshan Bibi (1986 SCMR 1714). In this case the order of the Rent Controller striking off the tenant's defence on account of his failure to deposit rent in the same rent proceedings was upheld by the Supreme Court notwithstanding the fact that rent had been deposited by the tenant in the miscellaneous rent case earlier filed by him against the landlord. The tenant's appeal had earlier been dismissed by the High Court as it was held that he had been negligent in prosecuting his case and furnishing his counsel with relevant information regarding deposit of rent. Reference may however be made in this regard to two other decisions of the Supreme Court in Major (Retd.) A. S. K. Samad v. Lt.‑Col. (Retd.) A. Hussain and another (1987 SCMR 1013) and Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970), wherein deposit of rent by the tenant in the miscellaneous rent case after a rent order had been passed by the Rent Controller was held to be a mere technical default and not a penal non compliance with the order of the Rent Controller. Similar view has been taken by two learned Judges of this Court in Muhammad Yousuf v. Maqbool Ahmad (1985 CLC 2862) and Mst. Rashid Jehan v. Muhammad Ashfaq (1991 MLD 2619).

4. So far as the present case is concerned, there appears to be no intentional failure on the part of the appellant to comply with the learned Controller's order since, as earlier pointed out, the appellant was originally depositing rent at the rate of Rs.20 per month in the Misc. Rent Case but after passing of the said order by the learned Controller he started depositing rent of Rs.60 per month in the said case. Consequently, there appears to be no intention on the part of the appellant to commit default and his failure to deposit rent in the rent case can be regarded as merely a mistake or an irregularity. Consequently, mere failure to deposit rent in the main case and deposit of rent in the miscellaneous case which was between the same parties should not have entailed penal consequences of the appellant's defence being struck off. Under the circumstances, the penal provisions of section 16(2) of the Sindh Rented Premises Ordinance were not attracted to the facts of the present case.

5. In the result, the appeal is allowed and the order passed by the learned Controller dated 26‑11‑1990 is set aside. H.B.T./M‑2009/K Appeal allowed.