1986 PLP 1544 (CLC)

Date of hearing: 25th April, 1985. This is a first rent appeal filed under section 21 of Sind Rented Premises Ordinance, 1979, challenging the order, dated 16‑11‑1983 passed by the Rent Controller, Karachi, striking off the defence of the appellant/ tenant and ordering his ejectment from the premises in question. Ejectment Case No. 1552 of 1980 had been filed on 11‑3‑1980 by the respondent /landlady on the ground of default and violation of the terms of the tenancy. There was an agreement of tenancy for eleven months executed on 7‑5‑1979, according to which the period of tenancy was to expire on 31‑3‑1980. A written statement was filed in which apart from other pleas, a defence was taken that the respondent had a deposit of Rs.18,000, which could be adjusted against the rent. An application under section 16(1) of the 1979 Sind Rented Premises Ordinance, 1979, was filed. I have gone through the R & P of the Rent Controller and Ejectment Case No. 1552/80 and I find that no counter‑affidavit or objections were filed on behalf of appellant. The following rent order was passed on 20‑7‑1980 by the Rent Controller:‑‑ "By consent I pass this rent order tentatively and direct the opponent to deposit Rs.27,000 being the arrears of rent from October, 1979 to June, 1980 at the rate of Rs.3,000 in Court before 31‑10‑1980. The opponent is further directed to deposit future monthly rent at the same rate of rent of Rs.3,000 commencing from the month of July, 1980, on or before 10th of each succeeding month i.e. the rent of July, 1980 will be deposited on or before 10th of August, 1980 and so on. Put off till 19‑2‑1980 for evidence." The arrears mentioned in the rent order, dated 27‑10‑1980 were deposited in time by the appellant but there has been default of one or two days in the deposit of some months rent. Later on an application under section 16(2) of the 1979 Rent Ordinance was filed on 12‑1‑1983 by the respondent to which objections were filed. By the impugned order, dated 16‑11‑1983 the Rent Controller allowed the application under section 16(2) of the 1979 Rent Ordinance and struck off the defence of the appellant ordering his ejectment from the premises in question. I have heard Miss Surayya Qamar, learned counsel for the appellant and .Mr. Zahid Marghub, learned counsel for the respondent.

2. Two contentions have been raised by the learned counsel for the appellant. The main contention is that it is an admitted position and it is also specifically mentioned in the tenancy agreement, dated 7‑5‑1979 that a sum of Rs.18,000 is lying with the respondent and this was liable to be refunded to the appellant at the termination of the tenancy agreement "after he clears up all damages and repairs of the said premises if any". According to the learned counsel for the appellant, the fact of this deposit of Rs.18,000 has not at all been considered or taken into consideration by the Rent Controller when he passed the order, dated 20‑7‑1980. It is further submitted that at the' time the order, dated 20‑7‑1980 had been passed, the period of tenancy under the tenancy agreement, dated 7‑5‑1979 had already expired and as such the amount of Rs.18,000 became refundable to the appellant and if this had been taken into consideration, the Rent Controller would not have passed the order for deposit of Rs.27,000 as arrears but at the most would have ordered for the deposit of Rs.9,000 as arrears after granting adjustment of Rs.18,000 to the appellant. Learned counsel also relied upon the following reported judgments:‑‑ P L D 1980 Lah. 302, 1984 C L C 1745, P L D 1980 S C 298 and P L D 1981 Kar.

150. In my view none of the authorities cited by the learned counsel come to the rescue of the appellant in the facts and circumstances of the present case. As pointed out earlier, neither any counter‑affidavit nor objections had been filed and the rent order, dated 20‑7‑1980 shows that it had been passed by consent. I have perused the memo. of the present first rent appeal and I find that no ground has been taken or grievance made that the rent order, dated 20‑7‑1980 was not a consent order. The order, dated 20‑7‑1980 being a consent order and no attack having been made in the present appeal against the said order not being by consent, it is not open to the appellant to take a plea that instead of Rs.27,000 as arrears, the Rent Controller ought to have ordered deposit of Rs.9,000 only as arrears. Further, I find that Rs.18,000 were not adjustable against the rent and according to the terms of the tenancy the amount was refundable on the termination of the tenancy. The rent order, dated 20‑7‑1980, accordingly cannot be l set aside in the facts and circumstances of the present case on the ground that adjustment of Rs.18,000 has not been granted by the Rent Controller. Admittedly, there has been a default in the deposit of some' monthly rents. It was submitted that on account of illness the appellant could not deposit the rent in time. Learned Rent Controller has dealt with this aspect of the case and has held that a wilful default had been committed to deposit the rent for two months. No ground has been made out for interference with the order of the Rent Controller striking off the defence of the appellant. First Rent Appeal No. 997 of 1983 is accordingly dismissed but with no order as to costs. Learned counsel for the appellant states that the appellant is running a school in the premises. Time is granted till 30‑6‑1986 to vacate the premises. It is further ordered that in case the premises are not vacated by 30‑6‑1986 it will be open to respondent to file execution application in which writ of possession will be issued without notice to the appellant. H.B.T. Appeal dismissed.