P L D 1993 Karachi 308 (PLP)

This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 has been riled by the tenant whose defence has been struck off under section 16(2) of the Ordinance due to 'his non-compliance with the order for payment of arrears of rent under section 16(l) of the Sindh Rented Premises Ordinance, 1979 passed by the III Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 441 of 1985. The appellant Muhammad Shafi was inducted as a tenant of a shop situated on Plot No. C-144, Central Commercial Area, P.E.C.H. Society, Karachi in December 1968 by respondent Shahid Hafeez on payment of rent of Rs.700 per month including other miscellaneous charges. The respondent Shahid Hafeez on 9-9-1982 presented an application under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking ejectment of the appellant from the rented premises on the ground that he did not pay rent with effect from May 1982 and had sublet a portion of shop premises to someone else. The application was filed by the respondent as the co-owner of the premises in dispute and was resisted by the appellant. On 29th July, 1986 an application under section 16(l) of the Sindh Rented Premises Ordinance, 1979 was filed on behalf of the applicant praying that the appellant be directed to deposit arrears of rent with effect from May, 1982 and the current monthly rent in Court. This application was disposed of by consent of the parties on 22-8-1986 whereby it was directed that the arears of rent with effect from May 1982 till 1986 at the admitted rent of Rs. 700 per month for 53 months amounting to Rs. 37,100 be deposited in Court on or before 30th January, 1987. It was further ordered by consent that the appellant could deposit this amount either by lump sum or in instalments. While the rent for the month of October 1986 should be deposited on or before 10th November, 1986 and thereafter appellant should continue to deposit future rent before 10ih of every succeeding month. On 2nd February, 1987 application was moved under section 16 (2) of the Sindh Rented Premises Ordinance, 1979 by the respondent landlord praying that the defence of the appellant be struck off for non-compliance of the order passed on 22-10-1986. On 23rd February, 1987 the appellant filed an application praying that time be extended to two months to deposit rent as ordered earlier by the Court. Both the applications mentioned above came to be heard by the Rent Controller who by his order passed on 14th July, 1987 dismissed the application filed by the appellant for extending time for payment of arrears of rent while he allowed the application filed by the respondent and struck off the defence of the appellant and directed him to hand over the possession of the rented premises within 30 days from the date of his order. It is against this order that the present appeal has been filed. Mr. Khalid M. Ishaque, Advocate for the appellant, contended that the Rent Controller had directed deposit of arrears of rent for 53 months which is beyond period of 3 years permissible in law. To support his such contention he referred to the cases published in PLD 1982 SC 398, PLD 1983 SC 1, 1989 MLD 2294 and 1989 MLD 4436. He further contended that the consent by the appellant was recorded while passing the tentative order due to wrong advice and as such appellant was not bound by that order. He referred to the cases reported in 1973 SCMR 112, 1975 SCMR 261, 1984 CLC 1745, 1986 SCMR 1069 and 1988 CLC

963. He further was of the view that additional evidence be recorded in the case and to support hig such ground he referred to the cases reported in PLD 1984 Karachi 143, PLI) 1984 SC 222, 1988 SCMR

741. Mr. A.R. Akhtar, Advocate for the respondent, contended that the appellant had himself filed an application as on 6-1-1983 to deposit the arrears of rent at his own risk while he had given consent to the passing of the tentative order freely and on proper advice which cannot be questioned at this stage. He referred to the case reported in 1976 SCMR

229. He then contended that the respondent had claimed rent from May 1982 in the Rent Case filed by him on 9-9-1982 within period of 3 years. The rent had accumulated during the pendency of the Rent case and the Rent Controller was correct in passing the order for deposit of arrears of rent for the entire period. He referred to the cases reported in PLD 1971 SC 766, PLI) 1990 SC 1201, PLD 1986 Karachi 199 and PLD 1971 SC

550. Reverting to the first contention raised by Mr. Khalid M. Ishaque, Advocate for the appellant, that the Rent Controller has directed deposit of rent for period of more than 3 years, it will be sufficient to mention that application for ejectment of the appellant on the ground of his failure to pay rent with effect from the- month of May, 1982 was admittedly filed on 9-9-1982 within the period of limitation prescribed for recovery of arrears of rent under Article 110 of the First Schedule to the Limitation Act. The rent that had accumulated during the period the application happened to be pending decision for more than 3 years, and the period taken by the parties to obtain an order for deposit of arrears of rent in terms of section 16(l) of the Sindh Rented Premises Ordinance, 1979 had gone beyond the period of 3 years such a period will not be relevant to bar the claim -of the respondent had he filed a suit for the recovery of such arrears of rent. The cases referred to by Mr. Khalid M. Ishaque, Advocate for the appellant on the point relate to the period taken by the landlord in filing the ejectment application beyond the period of limitation of 3 years and are not relevant. Such point, therefore, has no force. The order passed by the Rent Controller for deposit of arrears of rent and payment of the current monthly rent was admittedly passed by the consent of the parties. It may be pointed out that before such order was passed the appellant himself had filed an application seeking permission to deposit such arrears. It cannot, therefore, be stated that the appellant was not properly advised. The second contention, therefore, has no force. The appellant had filed Civil Miscellaneous Application No. 1255 of 1988 under section 21 (3) of the Sindh Rented Premises Ordinance, 1.979 praying that the inquiry may be conducted by this Honourable Court before deciding the appeal. The application merely mentions that the appellant had deposited arrears of rent amounting to Rs. 6,300 in the year 1983. Admittedly no amount towards arrears of rent was paid by the appellant since the passing of the tentative rent order and up to the order passed by the Rent Controller impugned in this appeal. In fact the appellant even did not care to deposit amount of arrears even in this Court in the appeal. All this shows that the appellant at no stage ever intended to deposit the arrears of rent under directions of the Rent Controller. The application for recording of additional evidence, therefore, merits no consideration. For the foregoing reasons I find no force in this appeal which is dismissed. AA./M-1788/K Appeal dismissed.