1986 PLP 700 (CLC)

Muhammad Ali Jan for Appellant. Mirza A . Rashid for Respondent. Dates of hearing: 11th August and 8th September, 1985. This appeal is directed against the order, dated 26‑4‑1984 by which the defence of the appellant was struck‑off. The relationship of the landlord and tenant is admitted and the rent is also admitted being Rs.50 per month. On 6‑5‑1982, the appellant was directed to deposit arrears of rent from September, 1981 to June, 1982 within two months and further directed to deposit future rent before 10th of every month. The appellant did not deposit the said rent in these proceedings because his contention is that he was depositing the same in Rent Miscellaneous Application No.4180/81 from August, 1981 till date. The respondent filed application for striking‑off the defence of the appellant. There was no objection filed on behalf of the appellant and, therefore, after receiving the report of the Nazir, which showed no payment in this case, the defence of the appellant was struck‑off on 26‑4‑1984. The contention of Mr. M.A. Jan is that there has been no default at all as the payment has been made by the appellant since August, 1981 before the filing of the ejectment case and that the appellant had no notice of either the deposit of rent order or the application for striking‑off the defence in view of the fact that his previous Advocate, Mr. Imtiaz Hussain had died and thereafter he had engaged Mr. Zafar Javed who filed his power on 15‑12‑1983 who had no knowledge of the case papers as the same were in the office of Mr. Imtiaz Hussain. I find that the statement of Mr. Zafar Javed, Advocate has been recorded by Court who has stated that he had directed the appellant to bring the papers and the receipts of rent paid by him but that the appellant did not bring the receipts and the case papers till the matter was disposed of by the Rent Controller and thereafter he thought that he was too late to supply the same to the Rent Controller or to make a review application in that regard and he thereafter filed this appeal. The appellant's counsel says that the appellant was never in default and, therefore, merely because he did not file the objection in time he should not be punished for the same as the things have remained in confusion on account of the death of Mr. Imtiaz Hussain. In the statement of Mr. Zafar Javed it has been stated that his client brought receipts to him little before the ejectment order was passed and when he went to the Court with the receipts he saw that the order has already been passed and the defence has been struck‑off.

2. I am usually indulgent in respect of the technical default committed by the tenant and I was initially of the view that since the appellant has been depositing rent in Miscellaneous proceedings and that too in advance he should not be made to suffer only because he had not been able to point out to the Rent Controller that the payments have actually been made. However, there are two circumstances in this case which do not permit me to take an indulgent attitude in favour of the appellant. One is that his counsel Mr. Imtiaz had died on 24‑5‑1983, and thereafter he had engaged Mr. Zafar on 15‑12‑1983 and notice of the application for striking‑off defence had been received by him on 19‑2‑1984, but the appellant and his counsel failed to do the needful till 26‑4‑1984 and were thus themselves responsible for the eventual order. Further important fact is that the appellant has produced with this appeal a deposit receipt of Rs.300, dated 3‑1‑1984. The appellant must have himself deposited Rs.300 towards rent in the Miscellaneous .proceedings on 3‑1‑1984, as his previous Advocate Mr. Imtiaz had died by this time and, therefore, the number of Miscellaneous proceedings as well as the latest amount deposited was available with him on 3‑1‑1984 but he did not produce the same before his counsel within time. His counsel was also a little at fault when he did not make an effort just before the ejectment order was passed for bringing this receipt to the notice‑of the Court, that there was a deposit of Rs.300 made by his client on 3‑1‑1984. The result was that basically on account of the negligence of the appellant coupled with the fault of his counsel the matter was disposed of by the Rent Controller on 27‑4‑1984 on the basis that order of deposit of rent had not been complied with and further on the ground that no objection to the application for striking‑off the defence of the appellant was filed. It was, therefore, natural and reasonable that the defence was stuck‑off. I feel, enough time was available at the disposal of the appellant and his counsel between 19‑2‑1984 anal 26‑4‑1984 to bring the receipts to the notice of the Rent Controller butt the same was not done and hence appellant cannot complain now.

3. I could have still granted relief to the appellant, in view of the deposit of rent in Miscellaneous proceedings, if the premises were available but the difficulty is that admittedly the premises have been demolished by the respondent after he had secured the possession from the appellant under execution and, therefore, there is nothing now available for being restored to the appellant.

4. Of course, under section 144, C.P.C. the restoration of the possession as it was before the impugned order could be ordered but in the present circumstances I am of the view that the equities are not entirely on the side of the appellant and the appellant as well as his previous counsel have not shown due diligence in pursuing the defence and, therefore, the order passed by the Rent Controller was not completely unjustified, I have, therefore, no option but to reject this appeal. This appeal is therefore, dismissed. C . M . A . 1901 / 84 is also dismissed as the premises have been demolished. H . B . T . Appeal dismissed.