1995 PLP 23 (CLC)

This appeal is directed against an order dated 30‑4‑1994 passed by the IIIrd Senior Civil Judge and Rent Controller‑Central, Karachi, striking off the defence of the appellant/tenant and directing him to vacate the premises under his tenancy. The dispute had started when the respondent/landlord Abu Bakar had filed an ‑application under section 15(2)(ii) of Sindh Rented Premises Ordinance, 1979 in the Court of the Rent Controller stating that the appellant/tenant had stopped paying him the rent since October, 1992 and that, therefore, he was a defaulter and that he should be ejected. This application was filed on 2‑5‑1993. The appellant/tenant disputed the rate of the rent and denied the default and he also contended that he had paid the rent up to the month of April, 1993 and that from the month of May, 1993 he had been depositing the rent in the Court of Rent. Controller in a Misc. Rent Case No.409/93. The appellant/tenant claimed that the rate of rent was Rs.600 per month and not Rs.900. It was also pleaded by the appellant/tenant that initially the premises was rented out @ Rs.250 per month and thereafter the rent was being increased and that at the time of filing of the rent application the rate of rent was Rs.600 per month. He also explained the reason behind the receipt of the rent amount in the sum of Rs.900 per month. Before decision of the main rent case on evidence, the respondent/landlord moved an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, requesting the Rent Controller to direct the appellant/tenant to deposit the arrears of rent @ Rs:900 per month. The Rent Controller accepted this application and directed, by his order dated 5‑1‑1994, that the appellant/tenant should deposit the arrears of rent from October, 1992 to January, 1994 @ Rs.900 per month and also should continue' to deposit the rent @ Rs.900 per month. It was also observed in this order that the rent deposited in Misc. Rent Case No.409/93 be adjusted in this rent case. However, the respondent/landlord was restrained from withdrawing the rent for the period October, 1993 to April, 1993. (Sic) In compliance of this order, the appellant/tenant deposited the arrears of the rent and he also continued depositing the future rent but strangely the same was deposited in the Misc. Rent Case No.409/93 instead of the main rent case. The respondent/landlord, therefore; moved an application in the main rent case for striking off the defence of the tenant and the Rent Controller, after hearing the parties has passed the impugned order holding that the tenant had committed a default by not complying with ‑the tentative rent order of the Court, therefore, the order of ejectment was. passed. I have heard Mr. Abdullah Chandio, Advocate for the appellant, who has stated that there is no dispute on the facts of this case between the parties and the only point is, whether the deposit of rent in the Misc. Rent Case, in which the appellant/tenant was depositing the rent earlier, is a wilful default or not. According to the learned counsel for the appellant it is not a wilful violation of the order of the Rent Controller, and that it was at the best a technical default, and further that it was merely a mistake partially contributed by the office of the Rent Controller also. Abu Bakar, the respondent, who was argued his case personally, has contended that the order of deposit of rent should have been complied with in letter and spirit and that the tenant has rightly been held to have violated the terms of the order of the deposit of the rent and, therefore, the order of his ejectment has been rightly passed. I have given my thoughtful consideration to the facts of the case and in my view there appears no will on the part of the tenant to violate the order of the Rent Controller but on account of some bona fide mistake or belief, the rent has been accepted by the office of the Rent Controller in the Misc. Rent Application, in which earlier rent was being accepted by the office. Perhaps because of bulk of work in the offices, the staff of the office also has contributed towards the mistake by accepting the rent in a Misc. Rent Case although the order of the Court was clear that the rent be deposited in the main rent case. Therefore, in my view there is no wilful or deliberate violation of the order of the Rent Controller on the part of 'the tenant and the penal action of not hearing his version about the default, and ejecting him outright will be a very harsh penalty for the tenant to suffer for merely a mistake' which is partially contributed by the office staff of the Rent Controller's Court. It cannot be the intention of the legislature that a person should be punished merely because of a mistake committed unintentionally. Intention and the mens rea are the most important ingrediently, which call for penalty in this case. Mens rea as well as intention are both lacking. A question was put to the respondent/landlord in clear words as to why the tenant had deposited the rent in the Misc. Rent Application instead of the main rent case, and the answer of the landlord was that he did not know the reason and the second question was whether by depositing rent in Misc. Rent Application, has the landlord undergone any inconvenience or difficulty in withdrawing the rent to which the answer was in negative. Therefore, I have no hesitation to come to the conclusion that the default in this case in not depositing the rent strictly in observance of letter and spirit of the order was merely an unintentional mistake on part of the tenant and cannot be equated with "non‑compliance of the tentative rent order". My view on the point has been supported by the decision in the case of Najam v. Mst. Anees Fatma reported in 1991 SCMR

64. The other case on this point pursuading me to decide that the default did not amount to non‑compliance of the tentative rent order, is Raujee v. Abdul Razzaq Khatri, reported in 1994 CLC 1094. This default is also technical default and not a wilful default and, therefore, the extreme penalty of striking of the defence and ordering the ejectment is not the proper order to be passed by the Rent Controller. Yet another important authority on this point is Noor Muhammad and another v. Mehdi reported in PLD 1991 SC

711. Under these circumstances the order of striking of the defence and ejectment of the appellant/tenant is hereby set aside and the case is remanded to the trial Court for disposing of the rent application in accordance with law. However, it is observed that henceforth the tenant will continue to deposit the rent in the main rent case and the trial Court shall also be vigilant in future to see that the order of the Courts are complied with strictly. H.B.T./Z‑229/K Order accordingly.