1989 PLP 2053 (MLD)

This appeal under section 21 of Sind Rented Premises Ordinance, 1979 is directed against the order dated 5-11-1985 passed by the IInd Senior Civil Judge and Rent Controller, Hyderabad, whereby the defence of the appellant was struck off under section 16 (2) of the Ordinance can his failure to comply with the order of the Controller dated 26-5-1985 directing the appellant to deposit Rs.2,400 being the arrears of rent on or before 2-7-1985.

2. It may be stated here that on 13-7-1985, the respondent moved an application dated 13-7-1985 (Ex.17) under section 16 (2) of the Ordinance that can the failure of the appellant to deposit the said suns of Rs.2 400 up to 2-7-1985, his defence may be struck off, where after notice was issued to the appellant and on 7- 9-1985 (Ex.25) the appellant moved an application under section 151 wherein it was stated by the appellant that he had been out of station throughout the proceedings in the case and since he wanted to comply with the order of the Court, he sought time for payment of arrears of rent.

3. Learned counsel for appellant brought to my notice that before the premises in question were let out to the appellant by the respondents, he was a tenant of the respondent in respect of all half portion of 'C' type house No.107/C, Block D Unit No.6, Latifabad, Hyderabad, at monthly rent of Rs.600, which the respondent got vacated on the- ground of personal bona fide requirement. Immediately after obtaining the vacant possession of the said premises on the ground floor, the respondent rented out the first-floor of the building in question to the appellant but the respondent failed to refund the security deposit of Rs.2,000 to the appellant against the first tenancy. Mr. Dhani Bux, learned counsel for the respondent, admits that security deposit was not refunded to the appellant when he vacated the said ground floor but he contends that this pica was not raised by the appellant when a tentative order for deposit of rent was passed by the Rent. Controller on 26-5-1985. In any case, it is submitted try Mr. Dhani Bux, that if this amount is allowed to be adjusted still there shall remain default in payment of rent to the extent of Rs.400, which is said to be the arrears of electric and-gas charges but in fact are arrears of rent. He referred to me the definition of rent under suction 2 (1) of Sind Rented Premises Ordinance, 1979. which states that `rent' includes water charges, electricity charges and charges which are payable by the tenant but are unpaid".

4. Mr. Ghulam Hyder Baloch, learned counsel for appellant, urged before me that there had been a technical default on the part of the appellant. He has been regularly depositing rent and under the circumstances the default may be condoned. In support of his contention, learned counsel referred to me 1986 C L C 43 and P L D 1987 Kar.

173. In 1986 CLC 43, it was held that Rent Controller would determine if non-compliance amounted to default or not. In P L D 1987 Kar. 173, it was held that there was a bona fide mistake on the part of a servant who deposited Rupees fifty less than the actual rent and therefore the order of Rent Controller striking off the defence of the tenant was set aside. But the appellant's case stands on different footing. His case is not of bona ride mistake or where due deligence has been exercised by a tenant but for reasons beyond his control he has failed to comply with the order of the Controller. In fact it was on 26-5-1985 that an order was made by the Rent Controller to deposit arrears to rent up to 2-7-1985. On 13-7-1985 an application under Section, 16 (2) of the Ordinance was moved by the respondent whereafter the appellant on one pretext or the other obtained adjournment or raising frivolous pleas to gain time. It was at late as 7-9-1985, when the appellant filed an application for grant of time for payment of the said arrears on the ground that he had been out of station. The appellant throughout had been represented, through his Advocate and this remaining out of station is no ground for non-compliance of the order of the Court which was passed as far back as 26-5-1985. The appellant has not been able to explain such prolonged delay. The Courts in some very exceptional cases have condoned the delay on the basis of satisfactory material before them. The law itself provides non-compliance of tentative order by the tenant as a matter of very serious nature whereby his defence is bound to be struck off and the landlord is put in possession of the premises.

5. Learned counsel for the respondent Mr. Dhani Bux has referred to P L D 1983 SC 1, wherein it was held that consequence of non-compliance under section 13 (6) of West Pakistan Urban Rent Restrictions Ordinance would result into summary disposal of case without taking further proceedings ipso facto on the basis of such non-compliance by striking off defence and passing order of eviction. Reference was also made to Mohammad Wali Khan v. Jawad Ali Khan reported in P L D 1983 Kar. 425, relevant portion of which is reproduced as under:- "I see no illegality has been committed by the Rent Controller in not giving adjustment of this excess amount claimed by the appellant at the time he passed the tentative order for deposit of rent. Following the law laid down by the Supreme Court, it may be observed that if there is an admitted default or non-compliance of the order of the Rent Controller and no explanation is given for the delay in deposit or for non-deposit, the Rent Controller has to strike off the defence of the tenant. Possibility cannot however, be ruled out of cases where the tentative rent order is arbitrary or capricious on its face. For instance the tenant might have in his statement of account referred to certain payments made by him to the landlord, which payment is accepted by the landlord before or at the time the tentative order for rent is passed and in respect of this the Rent Controller passes an order for deposit of rent without giving adjustment of the amount admittedly received by the landlord. In such cases the Court might take the view that default is not committed if the amount involved in the- default is covered by the amount admittedly received by the landlord. However, in the instant case, it has not been shown that the tentative order of rent dated 3-12-1975 of the Rent Controller is arbitrary or capricious." In may be pointed out that the above decision relates to the interpretation of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, which now stands repealed. The question regarding propriety/validity of the order of deposit of rent under section 16 (1) of the Sind Rented Premises Ordinance 1979, has been fully examined by the Supreme Court of Pakistan in Mrs. Zarina Khawaja v. Agha Mahboob Shah P L D 1988 SC 190 wherein it was held as under"- "Similarly, the use in subsection (2) of Section 16 of the word `pay' regarding monthly rent and `deposit' regarding arrears thereof, is also without significance. The deposit is also a payment. Moreover, the payment has to be under subsection (1) wherein the word `deposit' has been used for both the payments. And subsection (3) also repeals the word `deposit'. Hence, nothing would turn on the use of the words like pay and payment in this context. Therefore, whether it is the monthly rent or the arrears, the payment has to be made through a `deposit' under subsection (1). The disbursal to the landlord is possible under subsection (3) at a later stage, after the deposit has already been made under subsection (1). No payment or adjustment in any other form directly to the landlord has been made possible by section 16." In view of the decision of the Supreme Court of Pakistan referred to above, the appellant cannot claim payment or adjustment of security deposit of Rs.2,

000. Even under the repealed law his failure to exercise clue diligence to comply with the order of the Rent Controller would have disentitled him to the relief prayed for him.

7. As a result, I dismiss the appeal with costs and direct the appellant to hand over vacant possession of the premises to the respondent within two months. H.B.T./M-813/K Appeal dismissed.