1983 PLP 3230 (CLC)

‑‑ S. 13(6)‑‑‑Striking off defence‑Non‑compliance with tentative rent order‑Plea of tenant that Nazarat Section of Rent Controller would not accept rent during vacation period falsified‑Plea not taken before Rent Controller and no evidence available to this, effect‑Non‑com pliance of tentative rent order established‑Interference with order of striking off defence, held, not justified. M. G. Dastagir for Appellant. Syed Tariq Ali for Respondent, Date of hearing : 7th March, 1983, By judgment dated 14‑2‑1983, I had dismissed this appeal after hearing the learned counsel for the respondent, as no one was present on behalf of the appellant. On the same day, an application (C. M. A. No. 316 of 1983) was filed for recalling the order dated 14‑2‑1983. Mr. M. G. Dastagir, learned counsel for the appellant, filed his personal affidavit in support of the applica tion. No counter‑affidavit has been filed. C. M. A. No. 316 of 1983 is granted and the order dated 14‑2‑1983 is recalled. 2. 1 have heard Mr. M. G. Dastagir, learned counsel for the appellant, who had, supported this appeal and Mr. S. Tariq Ali, learned counsel, who has appeared on behalf of the respondent.

3. By the tentative rent order dated 25‑4‑1979, the appellant was ordered to deposit arrears of rent within two months. There is a non‑compliance insofar as the deposit of arrears is concerned, as the arrears were deposited on 2‑7‑1979 instead of depositing the same on or before 25‑6‑1979 1. e. within two months of the order dated 25‑4‑1979 of the Controller. The defence of the appellant was struck off by order dated. 4‑2‑1980 and the appellant being aggrieved, filed the present appeal.

4. In support of the present appeal, Mr. M. G. Dastagir, learned counsel for the appellant, has raised the following contentions : ‑ (a) It was submitted that the tentative rent order dated 25‑4‑1979 is a defective order inasmuch as under section 13 (6) of the 1959 Ordinance a date had to be fixed before which the arrears had to be deposited whereas in the instant case no date was fixed but it was wrongly ordered that the arrears be deposited within two months. I find no violation of section 13(6) of 1959 Ordinance. The order directing the arrears to be deposited within two months is an order, which specifically directs the tenant to deposit rent within a specified period and can be equated with an order, which fixes the date, by which the arrears are to be deposited. Learned counsel has relied upon three judgments in support of the argument that the order in question was defective. N L R 1979 Civil (Lah.) 582 was relied upon, where it was held that the tentative rent order, which directed the tenant to pay the rent to the landlord instead of deposit ing the rent with the Rent Controller was a defective order. I agree with principle laid down in that judgment, as payment to the landlord directly cannot be equated with deposit of rent with the Rent Controller as required by section 13(6) of the 1959 Ordinance. But no analogy can be drawn from that principle to argue that the instant rent order was defective. The other two cases relied upon were P L D 1964 Kar. 418 and P L D 1965 Kar. 367, in which it has been laid down that there has to be strict compliance by the Rent Controller while he passes an order under section 13(6) of the 1959 Ordinance. I entirely agree with this principle. However, in my view, in the instant case, there has been a strict compliance with the provision of section 13(6) and the order cannot be deemed to be defective or in violation o section 13(6) because it provides for two months' time to. pay the arrear instead of fixing the date. . (b) The next contention was that the Rent Controller had in his tentative rent order directed that the arrears of rent should be deposited with effect from August, 1978 whereas in his written statement the appellant had taken up the plea that he had paid the rent for August, 1978 through cheque to the respondent. The respondent had claimed rent with effect from August, 1978, whereas, according to the appellants, the rent was payable with effect from September, 1978. The tentative rent order was passed directing arrears to be deposited with effect from August, 197$ as claimed by the respondent/landlord and not with effect from September, 1978, as asserted by the appellant. It was con tended that before striking off the defence, an enquiry should have been held by the Rent Controller whether in fact the rent for August, 1978, had been paid by the appellant to the respondent as claimed by him in the written statement and if it was found that the rent had in fact been paid in respect of August, 1978, the defence could not have been struck off. The legal position has been clearly laid down by the Supreme Court in a recent judgment reported in Akhtar Jehan Begum v. Muhammad Azam Khan P L D 1983 S C I that if there is a violation of a tentative rent order by the tenant, the defence is to be struck off ipso facto. In my view, unless the tentative rent order is shown to be arbitrary or capricious, the defence of the tenant is liable to be struck off ipso facto if the violation of the tentative rent order has been com mitted and the Rent Controller is not required to hold another enquiry before passing the order for striking off the defence for determining whether the rent had in fact been paid or not as claimed by the learned counsel for the appellant. (c) It was lastly contended by the learned counsel for the appellant that in the instant case the arrears were required to be deposited by 25‑6‑1976 and as in June the District Courts are closed, the appellant can presume that the rent will not be accepted by the office. In this case the admitted position is that the current monthly rent for May, 1979 was in fact deposited by the appellant on 14‑6‑1979, which fact by itself falsifies the assertion of the appellant that in June, 1979, the Nazarat Section of the Rent Controller was not accepting the rents. In the objections filed against the application for striking off the defence also the plea that was taken was that during vacations no rent was accepted by the Nazarat Section. It was contended by the learned! counsel for the appellant that the rent was being accepted by Nazarat till 15th June, 1979 and from 15th June to 30th June, 1979 the Nazarat Section was not accepting the rent. This was not the case of the appellant before the Rent Controller and even otherwise, there is no evidence to the effect on record. As observed earlier, the case of the appellant was that during June, 1979, no rent was being accepted by the Nazarat, which has been proved to be wrong by the fact the rent for May, 1979, was in fact deposited on 14‑6‑1979 by the appellant and, therefore, the same must have been ‑ accepted by the Nazarat Section on that day.

5. I find no reason or justification to interfere with the order of the learned Rent Controller striking off the defence of the appellant. F. R. A. No. 230 of 1980 is dismissed with costs. The appellant is, however, graded time till 30‑6.1983 to vacate the premises. M' Y. H. Appeal dismissed.