1987 PLP 655 (SCMR)

"27‑10‑1975. The counsel for the parties are present and heard. The tenancy is not disputed nor is the rate of rent disputed which is Rs.600 p.m. The period of arrears is however, disputed. According to the applicant the opponent has not paid rent from January, 1975, onwards while according to the opponent he has paid rent upto April, 1975. He has produced a receipt (photostat) which shows that the rent has been paid upto April, 1975. This the opponent has to pay rent from May, 1975 onwards at Rs.600 per month amounting to Rs.3,000 (Rupees three thousand) only which he shall deposit by 31st December, 1975. The opponent is further directed to deposit future rent falling due against him at the same rate before the 15th day of each calendar month. Put off to 2‑1‑1976, for issues." It is admitted before us by the learned counsel for the appellant that the respondent deposited Rs.600 on 24th November, 1975, Rs.2,000 on 29th November, 1975 and Rs.1,600 on 23rd December, 1975. Therefore, by 23rd December, 1975, the respondent in all deposited Rs.4, 200 towards rent. However, according to the appellant the respondent had committed default in depositing rent for the months of October and November, 1975, which he had to deposit before 15th November, 1975 and 15th December, 1975 respectively. Accordingly he made an application for striking off the defence of the respondent. The respondent pleaded in his defence that the order of the Rent Controller suffered from vagueness and that he was advised by his counsel that the rent for the month of October, was included in the arrears of rent to be deposited by 31st December, 1975. In support of this plea an affidavit was filed by the Advocate for the respondent.

2. The learned Rent Controller, however, did not find the explanation furnished by the respondent satisfactory or plausible. He accordingly by his order, dated 31st October, 1977, struck off the defence of the respondent and directed him to hand over the vacant possession of the premises to the appellant.

3. The respondent's appeal against the aforesaid order was accepted by the learned Second Additional District Judge, Karachi, who by his judgment, dated 16th March, 1981, set aside the order passed by the learned Rent Controller and remanded the case to the Rent Controller for decision on merits.

4. The appellant being dissatisfied with the judgment passed by the first appellate Court, then filed a second appeal in the Sind High Court and a learned Single Judge dismissed the same by his judgment, dated 21st March, 1982. He held as under: "Unfortunately, in my opinion tentative rent order, dated 27‑10‑1975, is rather vague, both in respect of the actual arrears covered by the said order and in respect of deposit of future rents. Beside this as held by the learned IInd Additional District Judge, Karachi, deposit of Rs.600 made by the respondent on 24‑11‑1975, could be considered as deposit of rent for the month of November, 1975, and remaining deposits made by the respondent before 23‑12‑1975, which come to Rs.3,600 could be treated as deposits towards arrears of rents from May, 1975, to October, 1975, which was to be deposited on or before 31‑12‑1975, as there is nothing on record to show on what account respondent started depositing money from 24‑11‑1975, in accordance with tentative rent order in question and as such benefit of such calculation ought to go to the respondent. I see nothing wrong with this conclusion arrived at by the learned IInd Additional District Judge, Karachi, in view of vagueness of tentative rent order, dated 27‑10‑1975, and in view of the finding of the learned Rent Controller, that default if any, committed by respondent was in respect of the rent of November, 1975, and not October, as well as November, 1975, as urged by the learned Advocate for the appellant before him, as well as before this Court, "

5. On a petition by the appellant leave was granted by this Court to examine the contention that there was no question of confusion in the order of the Rent Controller, dated 27th October, 1975, in view of the rent account submitted by the respondent himself which reads as under: Rent account drawn on behalf of the opponent. Rent due and payable from 1‑5‑1975 to 30‑9‑1975(5 months) at the rate of Rs.600 per month only. ‑‑‑‑‑‑ Rs.3,000 It was submitted that reading the tentative rent order alongwith the rent account as aforementioned, it is clear that the learned Rent Controller directed the respondent to deposit an amount of Rs. 3,000 as arrears of rent from May, 1975, for five months upto September, 1975 by 31st December, 1975. Thus there was default in respect of the months of October, and November, 1975.

6. We have heard Mr. Shahenshah Hussain, learned counsel for the appellant at considerable length and he has reiterated his argument which was noted in the leave granting order. On a careful examination of the record we are, however, of the view that the order of the Rent Controller, dated 27th October, 1975, was likely to cause confusion and, may, therefore, have resulted in misguiding the respondent or his counsel in regard to the period of arrears of rent. We are no, impressed by the argument that there would be no such confusion if the said order is read alongwith the rent account submitted by the respondent. Since an order under section 13(6) of the Urban Rent Restriction Ordinance for the deposit of arrears of rent and future rent, is likely to result in serious consequence for the tenant, it is expected that such order should specify clearly the period for which the arrears are to be deposited and the time from which the future rent is to be deposited in Court. It is unfair to the parties to leave any matter of calculation in this regard to the parties on the basis of extraneous material outside such an order. In this case the learner. Rent Controller did mention that arrears of rent was payable with effect from May, 1975, but he did not say as to when the period of arrears of rent would expire, although the amount of Rs.3000 was mentioned. The fact remains that the respondent deposited rent for seven months by 23rd December, 1975, inclusive of the rent for the month of November, 1975. He was required to pay Rs.3000 only upto 31st December, 1975. We, therefore, find no wilful default on the part of the respondent with the intention to withhold the rent from being deposited. In any case it was within the discretion of the firs and second appellate Courts to accept the plea of the tenant that he was misled by the language of the tentative rent order from depositing the rent for the months in question strictly within the prescribed time.

7. For all these reasons we are not included to interfere with the judgment of the High Court. This appeal, therefore, fails and is accordingly dismissed with no order as to costs. S. Q./H‑6/S???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.