1997 PLP 1491 (CLC)

This appeal is directed against the order dated 23‑8‑1995, passed by learned 1st Rent Controller Karachi‑South, striking off defence of the appellant and directing him to hand over vacant possession of the premises to the respondent within two months.

2. Briefly the facts, as stated by the appellant, are that he was the statutory tenant of Shop No. 15, Zainab Manzil, Kazi Khuda Bux Road, Artillery Maidan, Karachi, at the rent of Rs.100 per month excluding electricity charges. It is alleged by the appellant that he had obtained the shop on Pugri from the respondent on payment of a sum of Rs.1,50,

000. Monthly rent was collected by the respondent himself according to his own convenience and he used to issue rent receipts after two or three months. The respondent on 6‑10‑1992, it is said, filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called "the Ordinance"), for ejectment of the appellant. Appellant filed a written reply denying various allegations made in the rent application for ejectment. According to him, respondent deliberately remained .absent and did not collect rent for February, 1989 with mala fide intention as the rate of goodwill was raised in the locality. He, therefore, filed an application for depositing rent in the office of Controller being Miscellaneous Rent Case No.748 of 1989 and deposited rent due with permission.

3. During the pendency of the rent case the respondent filed an application before the Rent Controller under section 16(1) of the Ordinance, notice whereof was given to the appellant. On 17‑1‑1994, parties appeared before the Controller when Advocate for the appellant made statement in Court in writing by endorsing on the said application as under:‑ "The opponent is depositing rent vide Miscellaneous Rent Application No.748 of 1989. therefore, we have no objection if the above application is disposed of by consent. "

4. In view of this endorsement by the counsel for the appellant, the learned Rent Controller proceeded to pass tentative rent order in the following terms:‑ "Application is hereby disposed of on the basis of the statement of the parties and future rent to be deposited in this case on or before 10th of each month."

5. Subsequently, the respondent moved an application on 22‑3‑1995 under section 16(2) of the Ordinance, pointing out to the Controller that the appellant had neither deposited the arrears of rent nor future monthly rent as directed by the Controller, as such he had committed a wilful default. The Nazir of t he Court reported that no amount had been deposited in the rent case but has mentioned the details of amount deposited by the appellant in Miscellaneous Rent Case 748 of 1989. On hearing parties counsel and consideration of Nazir's report, learned Rent Controller struck off the defence of the appellant by an rder, the same day which has been impugned in this appeal. I have heard Mr. Talmiz S. Burney, Advocate for the appellant, and Mr. Azizuddin Qureshi, Advocate for the respondent and perused the record.

7. It has been contended by Mr. Burney that the initial tentative rent order passed by the Rent Controller on 17‑1‑1994 was invalid as neither the quantum of arrears of rent nor the amount of future rent to be deposited by the appellant was specified. But only a superficial order was passed directing the appellant to deposit the future rent on or before 10th of each month without determining the actual amount due and payable to him which has seriously prejudiced the defence of the appellant. In these circumstances subsequent order striking off the defence of the appellant passed on 23‑8‑1995 was unwarranted and not supported by the material on record.

8. Learned counsel vigorously contended that impugned order passed by the Controller is based on misappreciation of facts and founded on misconception of law. Indeed, the learned Rent Controller omitted to take a vital circumstance into consideration that part of the claim of the landlord was time barred and while calculating the amount of arrears of rent he should have confined the claim on account of arrears for three years prior to institution of ejectment application, particularly when the appellant had depositeo Rs.7,000 in Miscellaneous Rent Case No.748 of 1989. Appellant had further deposited a sum of Rs.1,000 on 22‑8‑1995 which escaped notice of the Rent Controller and in case this amount is taken into account appellant had deposited more than the actual amount he was required to deposit. The deposit of rent in Miscellaneous Rent Case No.748 of 1989 in compliance to the order dated 17‑1‑1994 was merely a technical default towards deposit of rent. Reliance has been placed on PLD 1964 Karachi 418, PLD 1965 Karachi 367 and 1990 SCMR 1327 (Amir Ali and others v. M/s Burma Oil Mills Ltd.). Under these circumstances impugned orders dated 17‑1‑1994 under section 16(1) dated 23‑8‑1995 and under section 16(2) of the Ordinance, 1979, are bad in law and of no legal effect which require to be set aside.

9. Conversely, Mr. Azizuddin Qureshi, learned counsel for the respondent, while supporting the order urged that the tentative rent order was passed by consent of the parties when neither the arrears were deposited nor the rate of rent was disputed. This order was passed in presence of both the counsel for the parties and is thus binding and valid for all intents and purposes. He submitted that the appellant took no efforts to have the amount deposited in Miscellaneous Rent Case 748 of 1989 adjusted to the account in the main Rent Case. He did not comply with the direction for deposit of rent nor did he ever agitate that the tentative rent order was illegal. Even when application under section 16(2) of the Ordinance was moved he did not bother to contest that application, though notice thereof was given to his counsel on 22‑3‑1995. The amount of Rs.1,000 deposited eight months after the tentative order in the Miscellaneous Rent Case but not in the main case does not absolve him of the act of wilful default. Learned Controller was therefore justified in striking off his defence as there was nothing to show that he had deposited rent in the main Rent Case. Reliance has been placed on 1992 CLC 2499 (Muhammad Naeem and another v. M/s Karimi Bidi Works through Partners), 1994 SCMR 159 (Hussain Trading Company, Karachi v. M/s Jalal Brothers (Pvt.) Ltd. Kar.), 1995 CLC 1722 (M. Fahim v. Mrs. Shamim Tahira and another), and 1997 CLC 221 (M/s Paramount Linen v. Mst. Shagufta Muzaffar).

11. The contention of learned counsel for the appellant that the tentative rent order passed by learned Controller on 17‑1‑1994 for deposit of the arrears of rent and future rent was not in consonance with the requirements of section 16(1) of the Ordinance, therefore, appellant was not bound to comply with it, is not without substance. The amount outstanding towards arrears of rent and the rate of future rent was not specified in the initial order dated 17‑1‑1994 but the tenant was directed to deposit future rent by 10th of each calendar month. Admittedly, there was no dispute as to the rate of rent which was being deposited in Miscellaneous Rent Case No.748 of 1989. On 7‑11‑1993 when application under section 16(1) of the Ordinance was moved at the instance of the respondent, a copy was received by the counsel for the appellant and on 17‑1‑1994 his counsel made an endorsement on it that the opponent was depositing rent vide Miscellaneous Rent Case No.748 of 1989, therefore he had no objection if the application was disposed of by consent hence the learned Controller proceeded to pass the impugned order, requiring him to deposit future monthly rent by 10th of each month. From the record it appears that the appellant deposited Rs.500 every time until he paid Rs.7,000 in the said Miscellaneous Rent Case No.748 of 1989 but made no request to the Court to direct the landlord to withdraw the rent deposited nor did he requested the Court to allow him to withdraw the amount from the said Miscellaneous Rent Case for deposit in the main rent case.

12. Under these circumstances the tenant cannot raise any objection as to the validity of the tentative rent order which was passed by consent. The deposit A of rent in Miscellaneous Rent Case No.748 of 1989 by him after the rent order, was not valid in respect of the main rent case. The authority reported in 1991 SCMR 64 (Najmuddin v. Anis Fatima) relied upon by the counsel for the appellant is of no avail to him, for the simple reason that in that case the tenant after deposit of rent had been repeatedly approaching the Rent Controller before the targetted date to direct the landlord to withdraw the amount deposited in Miscellaneous Rent Appeal or to allow the appellant to withdraw the same and deposit it in the main case. In the instant case nothing of this sort is apparent on the record.

13. The other contention on .behalf of the appellant is that the Rent Controller has erred in calculating the amount of rent deposited. According to him the lact tender of Rs.1,000 has not been included in the amount while calculating the deposits and the appellant had deposited more than what he was supposed to deposit. The record shows that the appellant deposited Rs.1,000 on 22‑8‑1995 in Miscellaneous Rent Case No.748 of 1989. The deposits made after the order dated 7‑11‑1993 were in Miscellaneous Rent Case and not in the main case. Thus, there was a default in compliance with the order of the Rent Case. Hence the Rent Controller struck off his defence on 23‑8‑1995 under section 16(2) of the Ordinance.

14. Learned counsel for the respondent rightly pointed out that non‑deposit of the rent in the main case amounted to non‑compliance of the tentative rent order which made him liable to ejectment. Reliance is placed on the case Hussain Trading Co. Karachi v. M/s Jalal Brothers Karachi, reported in 1994 SCMR 159, wherein defence of the tenant was struck off for non‑compliance of tentative rent order of Rent Controller. It was not only found that tenant had deliberately failed to deposit rent in the ejectment application in spite of clear 8 directions of the Rent Controller but it was also found that he had also committed default in depositing rent in accordance with the tentative rent order. In order to reinforce, his contention learned counsel relied on 1997 CLC 221 (M/s Paramount Linen v. Mst. Shagufta Mazhar) in which it was observed that: "in the circumstances, the tenant had failed to comply with tentative rent order passed by the Rent Controller and his defence was rightly struck off for non‑compliance of the tentative rent order". In the said case tenant according to the tentative rent order was specifically directed to deposit arrears of rent within 6 days in the name of the landlady after adjustment of rent earlier deposited by tenant in Miscellaneous Rent Case and also to deposit future monthly rent in the name of the landlady, but the tenant continued to deposit rent in the earlier Miscellaneous Rent Case.

15. In view of the above facts and the case‑law, I am clear in my mind to hold that the appellant had failed to comply with the tentative rent order passed by the Rent Controller on 7‑1‑1994 and in utter disregard of the order failed to C deposit rent in the main case. Consequently, learned Controller was justified in striking off his defence under section 16(2). The present appeal, therefore, merits no consideration and is accordingly dismissed. However, the appellant is directed to put the respondent in possession of the shop in question within sixty days of this order subject to deposit of rent for this period in the office of the Controller. A.A./M‑182/K Appeal dismissed.