1986 PLP 2980 (MLD)

The respondent filed application under section 16(2) of the Sind Ordinance on the ground that the appellant committed default in depositing the balance of arrears of rent and also committed wilful default in late depositing the future rent. The appellant resisted the application. The learned Rent Controller after taking into consideration the arguments advanced by the learned counsel for the parties allowed the application by his order, dated 26‑5‑1985. The appellant being aggrieved against the order, dated 26‑5‑1985 has preferred this First Rent Appeal on the grounds mentioned in the memo. of appeal. Mr. Rehmat Elahi the learned counsel for the appellant has raised the following contentions:‑‑ (1) The learned Controller has not determined the amount but instead of determining the amount himself allowed the deduction of the amount deposited by the appellant. (2) The appellant did not commit default. Reverting to the first contention of the learned counsel for the appellant that the Controller did not determine the amount as contemplated by the provisions of section 16(1) of the Sind Ordinance. To appreciate the arguments it will be advantageous to reproduce section 16(1) which reads as under:‑‑ "Where a case for eviction of the tenant has been filed, the Controller, shall, on application by the landlord and after such summary inquiry as he deems fit to make determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case." Under section 16(1) the Controller is required to direct the tenant to deposit arrears of rent due from him and also to deposit future rent on or before the tenth every month such a direction can only, be given when there is no dispute about the rate of rent and amount of rent due. However, if there is any dispute about the arrears of rent the Controller shall determine such amount and direct that the same be deposited within such period as the Controller may fix in this behalf. A perusal of the order, dated 7‑4‑1983 would show that the Controller directed the appellant to deposit Rs.16,400 on or before the 5th of May 1983 subject to the adjustment already deposited in the miscellaneous Rent Case No.3149 of 1976 till the date of this order. This order in respect of arrears of rent amounting to Rs.16,400 was not passed in confirmity with the provisions of section 16(1) of the said Ordinance. I am of the view that the appellant could not be held liable to be evicted for not complying with such a defective order. The view which I am taking is in accord with the construction put by learned brother Saleem Akhtar, J. in the case of Muhammad Aslam v. Muhammad Umar and another P L D 1982 Kar. 107 which was followed by Mr. B.G.N. Kazi, J. (as he then was) in the case of United Bank Ltd. v. Aijaz Amin 1983 C L C 530 and Division Bench of this Court in the case of Ali Jan v. Shujauddin P L D 1985 Kar. 698 on provision in pari materia in a similar statute. Mr. Muhammad Saleh Memon the learned counsel for the respondent has fairly conceded that the construction put by me is in accord with the law in the above decision. Mr. Muhammad Saleh Memon has submitted that the appellant committed default in payment of future rent. His submission is that the future rent for the period from 18‑3‑1983 to 17‑4‑1983 was not deposited on or before 10th of each calendar month. On the other hand Mr. Rehmat Elahi the learned counsel has contended that the appellant had not committed any default. His submission is that the appellant had deposited a sum of Rs.11,000 in Miscellaneous Rent Case No.3149 of 1976 and the arrears of amount including the current period comes to Rs.10,200 as such there is no default . I have perused the statement of account including the Nazir's report as well as the amount of rent due against the appellant. It seems that the appellant deposited much more than the amount of rent was due to him. In this view there is no default in deposit of future rent. The appellant deposited all the amount of rent due upto 17‑4‑1983. The appellant did not commit any default. Mr. Memon the learned counsel for the respondent has fairly conceded that the appellant did not commit any default. Therefore, the order of the Controller directing the defence be struck off is set aside. This appeal is allowed accordingly and the matter is remitted to the IIIrd Senior Civil Judge and Rent Controller, Karachi East to proceed further with the rent case from the stage where the defence of the present appellant was struck off. The defence will be treated as part of the proceedings and the rent case shall be proceeded with accordingly. Mr. Memon the learned counsel for the respondent has stated at the Bar that he will furnish copies of the affidavits‑in-evidence of the respondent and his witnesses to the learned counsel for the appellant before 14‑10‑1986 and the respondent and his witness, if any, will appear on 14‑10‑1986 for the purpose of cross‑examination. I direct that the rent case shall be disposed of within a period of three months from the date of this judgment. I leave the parties to bear their own costs. H. B. T. Appeal allowed.