1986 PLP 540 (CLC)

Date of hearing: 19th November, 1985. This appeal is directed against the order of Mr. Maqsood R. Sheikh, Additional Controller of Rents Clifton Cantonment, dated 21‑9‑1985, whereby he struck off defence of the appellant and directed him to put the respondent in vacant possession of Shop No. 2, on Plot No. D‑3/31 Delhi Colony No.

2. Ch. Khaliquzzaman Road, Karachi‑6, under section 17 (9) of Cantonment Rent Restriction Act, 1963. The respondent is the landlord of the above shop which he had given on rent of the appellant at Rs.70 per month. The respondent had alleged that the appellant is habitual defaulter and has not paid rent from August, 1983 to 31 October, 1984, in spite of repeated demands. Hence he is liable for ejectment such ejectment application was filed by the respondent on 11‑1‑1984. The appellant admitted the relationship of landlord and tenant as well as the rate of rent. He has alleged that after October, 1983, the respondent demanded for enhancement of rent and on his refusal to yield to this illegal demand, he stopped collecting the rent. Consequently the appellant deposited the rent in Court in Miscellaneous Application and Rent Case No. 3 of 1984 Ledger Folio No. 163/111. The appellant has alleged that he was never a defaulter in payment of rent. The tentative order for deposit of rent was passed by the learned Rent Controller directing the appellant to deposit the arrears of rent for the period commencing from 1‑8‑1983 to 31‑10‑1984 at Rs.70 per month, amounting to Rs.1,050 on or before 5th December, 1984. The appellant was given facility of adjustment by transfer of the amount deposit under the above‑noted miscellaneous application. He was further directed to deposit current rent at Rs.70 per month from the month of November, 1984 before 5th of each following month, till final disposal of the case. On 19‑2‑1985, the respondent made this application under section 17 (9) of Cantonment Rent Restriction Act alleging that the appellant had failed to comply with the order of deposit of arrears of rent for month of August, 1983 to October, 1984 amounting to Rs.1,

050. Hence his defence be struck off. The appellant resisted the above application and alleged that he had paid the entire rent in the Court in the above miscellaneous application. The learned Rent Controller after persual of the Court ledger folio referred to above came to the conclusion that the respondent had deposited total of Rs.1,120 as against Rs.l ,050 on account of arrears of rent before 5th December, 1984. Hence payment was in excess by Rs.70 so far as arrears of rent upto 30th November. 1984 was concerned. He did not make any deposit of rent between 17‑10‑1984 and 25‑3‑1985 he deposited Rs.210. The excess of Rs.70 will recover the rent of December, 1984 before which was to be deposited before 5th January, 1985. But there was still default for January and February, 1985, which rent was to be deposited before 5th February and 5th March, 1985 respectively and, therefore, not deposited in time. Similarly he find that another Rs.210 were deposited by the appellant on 13‑5‑1985. There was no deposited was made in between 25‑3‑1985 and 13th May, 1985. The amount of Rs.210 deposited on 13‑5‑1985 would in fact cover the rent for the month of March, April and May, 1985 and were to be deposited by 5th April, 5th May and 5th June, 1985 respectively. Hence the Controller comes to the conclusion that the appellant had committed default on all these occasions. At this stage Mr. Suleman, Advocate, who appeared for the appellants submitted that the application under section 17(9) filed by the respondent in this case, had shown that the appellant had defaulted in payment of arrear of rent amounting to Rs.1,050 before due date that is 5‑12‑1984 which was not correct as held by the Controller himself. This fact has been also supported by the photo copy of ledger folio produced by the respondent alongwith the above application. The further observations of the learned Rent Controller that the appellant had made no payments between 17‑10‑1984 and 25‑3‑1985 and 13‑5‑1985 are not correct and not evidenced from the above photo copy of the ledger folio. He requested the Court to give him 2 days' time to produce upto date ledger from the Nazir. It would show that he had deposited the rent for the months, of December, 1984 and thereafter, upto date in time. Hence further order on this rent appeal is deferred till 21‑11‑1985. It will be passed after perusal of the copy of relevant rent ledger folio If produced by the appellant's counsel by that day. Appellant and their Advocate Mr. Suleman Habib, called absent. No rent Ledger has been produced by the appellants as undertaken by their Advocate. Hence it will appear that the finding of fact given by the Rent Controller that the appellants failed to deposit the rent of January and February, 1985 before 5th of February and 5th of March, respectively is unrebutted and is correct. Similarly he had failed to deposit the rent for the month of March, April and May, before 5th of April, 5th of May, and 5th of June respectively which too is not rebutted and is, therefore, taken as correct. Hence the conclusion of the Rent Controller that the appellant had committed default on of these occasions has gone unrebutted and is, therefore, to be taken as correct. I am, therefore, also of the view that the appellants have failed to comply with the order of the deposit of tentative rent passed by Rent Controller, under section 17 (9) of the Sind Rented Premises Ordinance, 1979 and has thus rendered himself liable to have his defence struck off thereunder. I, therefore, dismiss the appeal in limine and direct the appellant to hand over the vacant possession of the premises to the respondent as directed by the Rent Controller. H.B.T. Appeal dismissed.