1993 PLP 1812 (CLC)

On an application having been moved by the respondent under section 16 (1) of the Sindh Rented Premises Ordinance (hereafter to be mentioned as the Ordinance), the Rent Controller on 27‑9‑1990 passed rent deposit order. As per said order, the appellant was to deposit the arrears of rent for the period February, 1989 to August, 1990 amounting to Rs.19,000 by 30‑10‑1990. Appellant was also directed to deposit the future monthly rent from the month of September 1990 onwards by 10th of each succeeding month. On 30‑10‑1990 the appellant moved an application before the Rent Controller for extension of time to deposit the arrears of rent, which were to be deposited by 30‑10‑1990. In that application the appellant stated that he had deposited the monthly rent on 10‑10‑1990 but he could not deposit the arrears of rent as he was seriously sick since 12‑10‑1990. Said application was accompanied by a medical certificate dated 29‑10‑1990 showing that the appellant was ill since 12‑10‑1990. Subsequently the respondent moved an application under section 16 (2) of the Ordinance for striking off defence of the appellant. Under the impugned order dated 4‑7‑1991, learned Rent Controller struck off the defence of the appellant and ordered his eviction within 60 days. Hence this appeal. Mr. Mufti Abdul Latif, learned counsel for the appellant argued that the appellant had brought evidence on the record to show that he was not in a position to deposit the arrears of rent by 30‑10‑1990 as he was ill since 12‑10‑1990 and could not manage the amount required to be deposited. In this respect, learned counsel relied on the case of Shah Illah v. Mst. Mahmooda Begum (1984 CLC 931) decided by a learned Single Judge of this Court. It was further argued that there was no deliberate default on part of the appellant an depositing the arrears of rent, as he was very regular in depositing the monthly rent and there was delay of only seven days in deposit of arrears of rent, which were deposited on 7‑11‑1990. Mr. Muhammad Ali Jan, learned counsel for the respondent argued that learned Rent Controller had no power to extend the time for depositing the arrears of rent. In this respect reliance was placed on the cases of: (i) Muhammad Yousuf v. Muhammad Bashir and others (1990 SCMR 557); (ii) M. Nazir v. S. Shaukat Ali (1982 SCMR 985); (iii) Messrs Asmat Agencies v. Messrs Shaikh Yousufally and Sons Ltd. (1983 CLC 2088); (iv) Nazir Ahmed v. Holaram (1985 CLC 41); In respect of the medical certificate it was argued that had the appellant been ill since 12‑10‑1990 he would have obtained the medical certificate much earlier and not on 29‑10‑1990. It was also argued that application of the appellant for extension of time was rightly dismissed by the Rent Controller. Section 16 (2) of the Ordinance states that where a tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1) of section 16 of the Ordinance, his defence shall be struck off and the landlord shall be put in to possession of the premises within the period as specified by the Controller. These provisions and identical provisions contained in section 13, (6) of West Pakistan Urban Rent Restriction Ordinance, came up for discussion in the case of Nazir Ahmed (1985 CLC 41) where the view taken was, that the tenant can enjoy special protection offered to him in the Rent Ordinance, only if he strictly complied with the reciprocal obligations prescribed in the Ordinance. In the case of Muhammad Yusuf (1990 SCMR 557) it was held that the default under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance is of a peculiar nature and the Rent Controller has no discretion to condone it, as distinguishable from the default in payment of rent relatable to the other provisions of section

13. In the case of M. Nazir (1982 SCMR 985), it was held on the authority of PLD 1971 SC 700 that Rent Controller has no power to condone the delay under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance. In the case of M/s. Asmat Agencies (1983 CLC 2088), the tenant's authorised officer fell seriously sick and he was not even aware of the order about deposit of tentative rent but tenant's conduct exhibited gross negligence and in the circumstances the order for ejectment of the tenant was not interfered with. The case of S.M. Hayat (1984 CLC 3176) does not apply to this case where the appellant had been otherwise very prudent in depositing the monthly rent. However, the case of Shah Illahi (1984 CLC 931) is no answer to the observations made in the Supreme Court cases. In the case of Shah Illahi there was no discussion about competency of the Rent Controller to extend the time, which has been fixed under section 16 (1) of the Ordinance. Following the Supreme Court authorities relied on behalf of the respondent, I held that the Rent Controller had no discretion to extend the period which he had fixed in the order passed under section 16(1) of the Ordinance. Consequently, the impugned order cannot be interfered with and this appeal stands dismissed with no order as to costs. The appellant is given a period of three months for vacating the premises‑ H.B.T./H‑339/K Appeal dismissed.