1999 PLP 2886 (MLD)

This first rent appeal is directed against the order, dated 14-5-1998 passed by Rent Controller and 1st Senior Civil Judge Sukkur in Rent Application No.75 of 1997. The brief facts leading to the filing of this rent appeal, are that during the course of the proceedings in Rent Application No.75 of 1997, on an application under section 16(1) of the Sindh Rent Premises Ordinance, 1979, the Rent Controller on 19-3-1998 passed rent order directing the appellant to deposit arrears of rent from March, 1997 to February, 1998 for 12 months at the rate of Rs.2,000 per month with the Nazir of the Court within 15 days of the passing of the rent order and also future rent before the 10th of each calendar month. In the same order, the Rent Controller further observed that the rent already deposited by the opponent in Miscellaneous Application is adjustable in this case and the opponent would be at liberty to withdraw the same from the office of the Nazir and to deposit in this case within the said period. On 8-5-1998 the respondent moved an application under section 16(2), of the Sindh Rented Premises Ordinance, 1979 wherein she prayed for striking off the defence of the appellant/tenant as he failed to comply with the terms of the rent order passed in this case. On notice of this application, the appellant/tenant filed his objections and the Rent Controller also called report from the Nazir of the Court, and after hearing the parties, allowed the application under section 16(2) by his order impugned in this appeal. I have heard the learned counsel for the appellant, who has contended that the default if any committed by the appellant was purely of technical nature as the appellant had already deposited such rent through a miscellaneous application filed in the name of the same landlady in the same Court and such amount was already lying in favour of the landlady in the Court. The learned counsel in this regard referred to the Nazir report which also confirms this position, that an amount of Rs.16,000 deposited in a Miscellaneous Rent Application No. 86 of 1997 was also lying with the same Nazir. The learned counsel in these circumstances, submitted that the commission of default in compliance of the rent order is of a technical nature and, therefore, the Rent Controller was not justified in striking off the defence of the appellant. He has placed his reliance on the case reported as Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970), and also another citation reported as Zafarullah Khan v. ribu Bakar (1995 CLC 23) and submitted that there was no default from the side of appellant in compliance of the rent order and therefore, the impugned order maybe set aside. Learned counsel for the respondent has strongly resisted this rent appeal and submitted that there was specific direction contained in the rent order, dated 19-3-1998 whereby the appellant was directed to withdraw .the rent already deposited in the Nazir Office and to re-deposit the same in this case, in such circumstances non-compliance and non-deposit of rent amount in Court in terms of the order, dated 19-3-1998 rightly entailed consequences of striking off the defence. In support of his contention learned counsel placed his reliance on the case law reported as Ghulam Hussain v. Mst. Roshan Bibi (1986 SCMR 1714) Mahmood Bashir v. Mst. Mubina Begum (1988 SCMR 427) Hussain Trading Company, Karachi v. Messrs Jala1 Brothers (Private) Limited, Karachi 1994 SCMR 159) Javaid Iqbal v. Rana Muzaffar Khan (1976 SCMR 229) and M. Nazir v. S. Shaukat Ali (1982 SCMR 985). I have carefully considered the arguments advanced before me and also perused the case law referred above. Before examining the contentions of the learned counsel for the parties it will be relevant to re-produce a portion of the rent order passed by the Rent Controller in this case, which reads as follows:-- "The rent already deposited by the opponent in Miscellaneous Rent Application, however, is adjustable to this case. The opponent is at liberty to withdraw the same from the office of Na7Ir an to deposit in this case within the above period." ??????????? From the reading of the above passage from the rent order passed by Rent Controller in this case, it is clear that the Rent Controller was well aware of the fact that the arrears of the rent deposited in miscellaneous rent case were in favour of the same landlady and lying with the same Nazir of the Court. In the above circumstances, there was no wisdom in passing of an order by the Rent Controller whereby instead of allowing adjustment of the rent amount already lying with the same Nazir he gave direction to the appellant/tenant to withdraw the same and then to deposit it in the present case. If the Rent Controller had properly applied his mind, such situation might not have emerged in the present case. The Nazir report called by the Rent Controller clearly speaks A about the fact that the amount of Rs.16,000 was deposited by the appellant /tenant much prior to the passing of the rent order and such deposit of rent in the miscellaneous application was in the name of same landlady. Thus default was merely technical in nature, carrying no element of contumacy on the part of appellant, as he was already out pocketed with amount by depositing the same in miscellaneous application. The case-law referred by the learned counsel for the appellant Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970) is fully attracted to the facts and circumstances of the present appeal. The case law cited by the learned counsel for the respondent is-on different facts and is not attracted in circumstances of the present case. As a result this appeal succeeds, the order of the Rent Controller, dated? 14-5-1998 is set aside and the case is remanded to the Rent Controller for e disposal in accordance with law.

2. Dismissed as infructuous. Q.M.H./J-51/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.