1999CLC771 (PLP)

onwards. To the above application the appellant filed reply in which he stated that the respondent's father Hashmatullah was the landlord, who refused to receive the rent by way of money order, as such he has been depositing the rent in the Court of 1st Senior Civil Judge, Karachi in Miscellaneous Rent Case No.606 of 1994 from July, 1994 till today at the rate of Rs.250 per month in Account No.3/119, Court Ledger No. 13 and he will continue to deposit the rent in future. However, the learned Rent Controller allowed the above application and directed the appellant to deposit arrears of the rent from July, 1994 to August, 1995 at the rate of Rs.250 per month amounting to Rs.3,500 in the present Rent Case subject to adjustment of rent already deposited in Miscellaneous Rent Case No.606 of 1994. He was further ordered to deposit future monthly rent in this rent case on or before 10th at the same rate till disposal of the rent application. Thereafter the respondent filed an application under section 16(2) of the Ordinance on 15‑11‑1995 stating therein that the appellant had failed to comply with the tentative order passed on 12‑9‑1995 and has neither deposited arrears of Rs.3,500 nor have deposited the future monthly rent in this case as such his defence be struck off and may be directed to hand over the vacant possession of the premises. The appellant did not file any objection to the said application as such the said application was allowed on 15‑2‑1996 and the defence of the appellant was struck off and was directed to hand over vacant possession of the premises within 60 days.

5. The learned counsel for the parties did not advance oral arguments but have filed their respective written arguments.

6. The appellant in his written arguments has mainly stated that the respondent had not come with clean hands. According to him in fact Hashmatullah was the owner with whom he used to deposit the monthly rent of Rs.250. With regard to depositing of rent after refusal of the same by Hashmatullah, he has stated that the said rent was being deposited in Miscellaneous Rent Case No.606 of 1994. He has further stated that the appellant has not violated the tentative orders of depositing rent in Rent Case No.806 of 1994 and has accordingly deposited the rent and, thus, has not committed any willful default in the payment of rent and also that the notice under section 18 of the Ordinance was not served upon the appellant. He has also stated that an amount of Rs.4,500 has already been deposited in Miscellaneous Rent Case No.606 of 1994 as against Rs.3,500, as such the appellant cannot be termed to be a defaulter in view of order under section 16(1) of the Ordinance. In support he has relied upon the case‑law reported in PLD 1991 SC 711, 1991 SCMR 986, 1987 SCMR 1013 and 1988 SCMR 970.

7. On the other side the respondent in her written arguments has vehemently denied the contentions of the appellant raised in the arguments and has urged that the plea that no notice under section 18 of the Ordinance was served upon the appellant is untenable. The appellant in paragraph 4 of his written statement has himself admitted that he had received notice, dated 7‑8‑1994 with regard to change of ownership by the respondent. According to him if a notice of change of ownership is not served even then the filing of ejectment application itself amounts to notice of change of ownership: In support of this plea he has referred to 1991 CLC 1134. According to the respondent the appellant has clearly violated the tentative order passed under section 16(1) of the Ordinance and has willfully defaulted in making the payment of arrears amounting to Rs.3,500 and future monthly rent in the instant rent case, as such his defence has been rightly struck off under section 16(2) of the Ordinance. In spite of specific directions the appellant again on 28‑9‑1995 deposited the rent in Miscellaneous Rent Case No.606 of 1994, which clearly shows that he did not want to deposit the rent in the instant rent case and has knowingly violated the orders. In the Miscellaneous Rent Case also he had been depositing the rent in the name of the previous landlord. In support of his contentions he has relied upon the case‑law reported in 1994 SCMR 159, 1995 SCMR 204, 1986 SCMR 1714 and 1991 CLC 1134.

8. I have given anxious thought to the abovementioned arguments of the parties and have gone through the record and proceedings and the impugned order. The appellant in his written statement has admitted the tenancy. He has also admitted that he was tenant of the demised premises with Hashmatullah the previous owner and father of the respondent, but has denied the relationship of being tenant with the landlady Mst. Abida Begum, the respondent. As per orders, dated 12‑9‑1995 a tentative rent order was passed whereby the appellant was directed to deposit the amount of arrears from July, 1994 to August, 1995 amounting to Rs.3,500 in the instant Rent Case No.806 of 1994 and also future monthly rent at the rate of Rs.250 from September, 1995 onwards, but instead of depositing the 'rent in the instant case he had been depositing rent in Miscellaneous Rent Case No.606 of 1994 and has, thus, clearly violated the orders. The appellant has also not filed any objection to the application under section 16(2) of the Ordinance, as such there seems to be no illegality in both orders, dated 12‑9‑1995 and 15‑2‑1995. 1 have also gone through the Nazir's report, dated 5‑12‑1995, wherein he has mentioned that the appellant has been depositing the rent in Miscellaneous Rent Case No.606 of 1994 from 8‑9‑1994 to 28‑9‑1995. In the note he has stated that as per ledger no deposit in the instant Case No. 806 of 1994 has been made.

9. The case‑law referred by the appellant's counsel is of no help to him as it is on different facts and circumstances than that of the case in hand.

10. In the referred case of Noor Muhammad and another v. Mehdi, reported in PLD 1991 SC 711, the rent for the month of February, 1994 was erroneously deposited in Miscellaneous Rent Case and it was because of this reason alone the Honourable Supreme Court allowed the appeal and remanded the case to Controller for proceeding on merits according to law.

11. So far as another referred case of Messrs Asad Brothers v. Ibadat Yar Khan, reported in 1991 SCMR 986 is concerned, in this case the Honourable Supreme Court had remanded the matter to Rent Controller mainly on the grounds that order under subsection (1) of section 16 of the Ordinance was defective and the High Court had failed to examine such defective nature of the rent order passed by the Rent Controller.

12. In the case of Major (Retd.) A.S.K. Samad v. Lt.‑Col (Retd.) Abdul Hussain and another reported in 1987 SCMR 1013, the eviction order passed by the Rent Controller was set aside and the case was remanded for fresh trial. The case was remanded to proceed afresh in accordance with law on the grounds that the rent was being regularly deposited by the tenant with the permission of the Rent Controller in earlier proceedings and the amount was being withdrawn by wife of landlord who was also co‑applicant in subsequent ejectment proceedings.

13. In the case of Abdullah Ghanghro v. Mst. Tahira Begum, reported in 1988 SCMR 970, the Honourable Supreme Court has observed that the non compliance of the Rent Controller's order was mere technical as tenant was depositing rent in Court in connected miscellaneous proceedings between the same parties due to mistake.

14. So far the case‑law produced by the respondent's counsel is concerned, it is fully applicable with his case.

15. In the case of Sindh Trading Company, Karachi v. Jalal Brothers (Pvt.) Ltd. reported in 1994 SCMR 159, the Honourable Supreme Court refused leave to appeal and maintained the order of striking off defence of the tenant for non compliance of order of the learned Rent Controller on the ground that the tenant had deliberately failed to deposit rent in ejectment application in spite of clear directions passed in tentative rent order by the learned Rent Controller. The facts of this case are quite identical to the facts of the instant case.

16. In another referred case of Abdul Malik v. Mst. Qaiser Jahan, reported in 1995 SCMR 204, it was under the similar circumstances that the Honourable Supreme Court has held that the conduct of the tenant by depositing rent in Court in the name of previous landlord in spite of having received notice of change of ownership of property; though the tenant had challenged gift deed by alleging that the same was illegal and that the landlady was not entitled to recover rent, yet it was held that such conduct of the tenant in depositing rent in Court was contumacious and amounted to cause harassment to the landlady and was not a technical default.

17. The case of Ghulam Hussain v. Mst. Roshan Bibi ‑ reported in 1986 SCMR 1714 is also on identical footing with the case of the respondent and the Honourable Supreme Court refused leave to appeal and maintained the order of the Rent Controller, whereby the tenant had failed. to comply with the tentative rent order passed under section 16 of the Ordinance and was depositing the rent regularly in miscellaneous rent case.

18. This Court in the case of Mst. Kulsum Begum and another v. Muhammad Siddique, reported in 1991 CLC 1134, with regard to change of ownership has held that a notice under section 18 sent by new owner in writing by registered post, would be considered to be sufficient compliance though such intimation actually was not received by the tenant. It has also been held that even filing of the ejectment application would be a due compliance of section 18 of the Ordinance.

19. For the foregoing reasons I feel that the impugned orders, dated 12‑9‑1995 and 15‑2‑1995 do not suffer from any illegality and are just and proper. The conduct of the appellant in not complying with the directions is wilful and deliberate and renders him liable to be ejected. Accordingly the B orders of striking off defence of the appellant are maintained and consequently First Rent Appeal No.86 of 1996 is dismissed with no order as to costs. However, the appellant is allowed three months' time to hand over the vacant possession of the said premises to the respondent. Q.M.H./M:A.K./Z‑41/K Appeal dismissed.