2003 PLP 892 (CLC)

By Cheque No.0094758 paid on 26-6-2001 Rs.10,000 Paid cash on 30-7-2001 Rs.58,000 Paid cash on 21-7-2001 Rs.50,000 Paid cash on 6-8-2001 Rs.1,00,000 Deposited to Nazir on 17-1-2001 Rs.63,000 Deposited to Nazir on 7-2-2002 Rs.21,000 Total paid as per record of this Honourable Court. Rs.5,99,000" The landlord filed a counter-affidavit denied the allegation made in the application and disputed three payments totalling Rs.2,08,

000. He also stated that he had filed Suit No.652 of 2002 in the Court of Xth Senior Civil Judge, Karachi East against the tenant for recovery of arrears of rent and damages amounting to Rs.4,47,000 which was proceeding ex parse against the tenant as the latter had failed to appear in Court and defend the proceedings in spite of service by bailiff, registered post, T.C.S. Courier, pasting and publication in Daily Jasarat of 24-9-2002. After hearing the counsel of both the parties, the learned Controller by order dated 24-12-2002 dismissed the application. Consequently, the tenant filed this F.R.A. to set aside the Controller's order 24-12-2002 and stay of the execution till the disposal of the appeal.

3. On 27-1-2003 when the matter came up for Katcha Peshi Mr. Raees, learned counsel for the appellant submitted that the ejectment order was unlawful and could not be enforced as it was contrary to the provision of section 27 of the Act which requires that no order inter alia, under section 17 of the Act shall be made by the Controller except after holding an inquiry and referred to 1992 MLD 801 in support of his argument.

4. I Mr. Ahmed, the learned counsel for the respondent submitted that the tenant had not filed any appeal against the ejectment order dated 9-4-2002 but had filed the appeal against the order passed by the Court on tenant's application under section 12(2), C.P.C. during the pendency of the execution application and consequently the ejectment order had acquired finality and was enforceable in law. He added that the tenant had not deposited any rent at all after the passing of the tentative rent order. Mr. Raees sought time to place before the Court evidence to show that the tenant had deposited in Court or paid uptodate rent to the landlord and had not committed any default in payment of rent: Today. Mr. Raees stated that he was not in a position to submit such proof as his client was not available. It is, therefore, obvious that the tenant has not paid any rent after February, 2002.

5. It is an admitted position that the ejectment order was passed on 9-4-2002 and the appeal against the same should have been filed within 30 days as provided under section 24 of the Act. The tenant did not tile any appeal, the ejectment order therefore, apparently became final and binding upon the tenant. 6: In the application filed on 14-11-2002 under section 12(2), C.P.C. for setting aside the order of ejectment, the tenant showed a total payment of Rs.5,99,000 which included Rs.21,000 security deposit which under the agreement dated 15-7-1999 is required to be refunded to the tenant on his handing over vacant and peaceful possession of the premises after deducting the amount of unpaid bills, if arty or any damage in the demised premises. Therefore, this amount cannot be included m the list of payments alleged by the tenant. After deducting the said Rs.21,000 the total payment allegedly made by the tenant is reduced to Rs.5,78,

000. Even assuming for the sake of argument that the three disputed payments totalling Rs.2,08,000 are genuine, the total payments stand at Rs.5,78,

000. Now, the rate of rent was Rs.21,000 per month. The tenancy started on 15-7-1999 and accordingly the rent payable up to 14-2-2002 for 31 months when the tentative rent order was passed comes to Rs.6,51,

000. Consequently, on the date of the tentative rent order, the tenant was in default of Rs.73,

000. Further the 'application under section 12(2), C.P.C. was filed on 14-11-2002 therefore, the tenant was required to pay further sum of Rs.1,89,000 being nine months rent up to 14-11-2002 which apparent the tenant had not paid as he did not include this amount in the list of payments reproduced in para. 2 above. The tenant was again guilty of default in payment of rent on 14-11-2002 when he filed the application under section 12(2), C.P.C.

7. The tenant is required under the law to pay the rent regularly and additionally permanent to the order of the Controller he was required to pay the future rent in accordance with his order. It cannot be disputed that the appeal is a continuation of the original proceedings (Province or East Pakistan v. Muhammad Hossain Mia PLD 1965 SC

1. The tenant should have continued either to deposit the rent with the Court or pay the same to the landlord. Today Mr. Raees has not produced any proof or payment of rent from March, 2002 todate and has, therefore, committed further default in payment of rent and is liable to be ejected on this score also.

8. The contention of Mr. Raees, the learned counsel for the appellant that the order is contrary to the provisions of section 27 of the Act is not tenable because according to his own admission reproduced above, the tenant is in continuous default in payment of rent. Additionally, both the tentative rent order and the ejectment order were passed after calling the report from the Nazir of the Court regarding the payment of arrears of rent as well as future monthly rent, considering the statements of rent accounts filed by the parties and giving them a hearing which meets the requirements of section 27 of the Act. The case of Muhammad Ali v. Shafiq Ahmad 1992 MLD 801 relied upon by Mr. Raees is not applicable as the facts and circumstances of the said case are different from the facts and circumstances in this case.

9. Mr. Raees has not been able to show any illegality in the order dated 24-12-2002 of the Controller. I have also gone through the said order and aim of the opinion that it is in accordance with law and circumstances of the case.

10. Mr. Arshad Mobin Ahmed filed objections to the appeal alongwith several annexures and supplied copies of the same to Mr. Raees. According to the annexures Suit No.652 of 2002 was decided against the tenant by judgment, dated 16-11-2002 and decree dated 23-11-2002 whereby the tenant is required to pay to the landlord a sum of Rs.3,55,000 as arrears of rent up to 15-5-2002 and further rent at the rate of Rs.21,000 per month till vacation of the rented premises. It is not necessary to comment on the said documents as the appeal can and is being decided on the points discussed above.

11. In view of the above discussion, the appeal is mala fide and is accordingly dismissed in limine alongwith the listed application. M.B.A./S-272/K Appeal dismissed.