1999 PLP 852 (CLC)

Maqbool Elahi v. S. Anwer Tauheed 1984 CLC 626; Syed Abdul Hakim and others v. Ghulam Mohiuddin PLD 1994 SC 52 ref. Syed Saeed Hassan Zaidi for Appellant. Iftikhar Javaid Qazi for Respondent. Allowed but subject to all just exceptions. 2 and

3. This is an appeal under section 24 of the Cantonments Rent Restriction Act, 1963, directed against an order, dated 12‑9‑1996 passed by Alditional Rent Controller, Clifton, Karachi in a Rent Case No, l of 1996, Mst. Jamila Khanum v. Saeed Ahmed Khan whereby the defence of the appellant was struck off under section 17(9) of the Cantonments Rent Restriction Act, 1963 with the directions to vacate the premises within 30 days. The order of Additional Rent Controller, Clifton, Karachi, dated 10‑7‑1996 passed under section 17(8) of Rent Act runs: "In the circumstances, I tentatively direct the opponent to deposit the arrears of rent, w.e.f. May, 1995 to June, 1996 (14 months) at the rate of Rs.3,500 per month, amounting to Rs.49,000 within 30 days from the date of this order, subject to adjustment of rent already deposited by the opponent in M.R.C. No.99 of 1995 which amount shall be transferred and adjusted in this case. The opponent is further directed to deposit the rent for the month of July, 1996 before 5th of August, 1996 and rent for the subsequent months before 5th of each succeeding month till further orders. The applicant is, however, restrained from withdrawing the rent for the months May, 1995 to September, 1995 till final disposal of this case. The applicant is allowed to withdraw the rent from October, 1995. The respondent/landlady filed an application under section 17(9) of Cantonments Rent Restriction Act on 18‑8‑1996 stating therein that the appellant/tenant has failed to comply with the tentative rent order, dated 10‑7 1996 in respect of deposit of rent for the month of July, 1996 which was required to be deposited before 5th of August, 1996 but instead of that rent was deposited on 18th of August, 1996. The appellant/tenant filed objections stating therein that the delay in deposit of rent for the said month was neither intentional nor wilful but beyond the control of the appellant/tenant as the appellant/tenant as wife became seriously ill and was confined to bed. The Additional Rent Controller as per impugned order, dated 12‑9‑1996 observed:‑‑ "From the perusal of the facts of this case and so also the case‑law referred on the points under consideration I am of the view that the Rent Controller has no power to condone the delay in depositing the rent and accordingly the prayer of the opponent in this regard is hereby rejected. Since it has been fully established that the opponent has clearly failed to comply with the rent order, dated I0‑7‑1996 regarding deposit to rent for the month of July, 1996 which rent he failed to deposit before 5th August, 1996 and in fact, deposited the same on 18‑8‑1996. I, therefore, feel no hesitation but to allow the application under section 17(9) of the Cantonments Rent Restriction Act, 1963 and strike off the defence of the opponent in this case. " The contention of learned counsel for appellant is that the order, dated 10‑7‑1996 passed under section 17(8) of the Rent Act was not legal as in the said order specific amount of arrears to be deposited was not stated but only an amount of Rs.49,000 as arrears was said to be deposited within 30 days subject to adjustment of the rent already deposited by the appellant/tenant, therefore, default if any in respect of future rent would not entail the penalty provided under the law. He has placed reliance upon Tahir Hussain v. Saeed Ahmad Khan Lodhi 1993 CLC

519. Learned counsel for respondent/landlady has argued that there is no dispute about the non‑compliance of deposit of rent of arrears but in the instant case appellant/tenant has failed to deposit future rent viz. rent for the month of July, 1996 before 5th of August, 1996 and the said order is quite specific and clear, therefore, the above cited case would trot be applicable to the facts of the instant case. He has placed reliance upon Dr. Shafique Ahmed v. Mst. Surraya Sultan 1996 CLC

399. It is admitted position that the rent for the month of July, 1996 was not deposited on or before 5th of August, 1996 but was deposited on 18th of August, 1996 as reported by Accountant Rent Controller Branch, Clifton on 8‑9‑1996. Learned counsel for appellant has also no defence to say anything about the non‑payment of rent for the said month of July, 1996 by the 5th of August, 1996. So far the ailment of the wife of the appellant it has also no merit as the various certificates issued speak about the different period of the ailment but not of the period during which compliance was required to be made by the appellant. Even if it was so then also the appellant could have made arrangement for deposit of rent on any date before 5th of August, 1996. It is not stated that there has been no other person in the house of the appellant who could have carried out this job of deposit of rent in the office of Rent Controller. The order is legal and proper. No interference is called for Accordingly, appeal has no merits which non‑compliance of the order has been admitted. There is no valid and legal ground for condoning the said non‑compliance. The contention that arrears of rent should have been adjusted from security deposit of Rs.40,000 has no merit. Reference is made to Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 and Syed Asghar Ali Imam v. Muhammad Ali PLD 1988 SC

228. Contention of learned counsel for appellant that the case may be remanded to the Controller to determine if the payment of rent was made through cheques has no merit as well, as it was not necessary for the Rent Controller to record evidence for the purpose of passing an order under section 17(8) of the Rent lC Act. Reference is made to Maqbool Elahi v. S. Anwer Tauheed 1984 CLC

626. Reference is also made to Syed Abdul Hakim and others v. Ghulam Mohiuddin PLD 1994 SC

52. Even single default would be sufficient to bring the case of appellant within the meaning of mischief of section 17(9) of the Rent Act. U Reference is also made to Abdul Malik Shamsi v. Muhammad Shamim 19861 CLC

540. I do not find any substance in the contentions of the learned appellant's counsel, hence, appeal has no merit which is hereby dismissed in limine. Consequently C.M.A. 1079 of 1995 is also dismissed. The appellant is given thirty days period to vacate the premises. Q.M.H./M.A.K./S‑172/K Eviction upheld