1998 PLP 2078 (MLD)

I have heard both the counsel and have perused the record. Without going into the merits of the case, admittedly, the appellant/tenant had failed to deposit the arrears of rent as per order dated 9-1-1995 passed by the learned Rent Controller and as such the defence of the appellant/tenant was struck off by order dated 26-3-1995 and consequently the present appeal was filed. During the pendency of the appeal, on 22-10-1995, interim rent order was passed by consent and in presence of the counsel of the parties and appellant No. 1, in person. The order is as follows:-- "22-10-1995. Mr. Bashir Ahmed for the appellant alongwith Muhammad Younus, appellant No. 1: Mr. K.B. Bhutto for the respondent. This application is granted by consent provided that the appellants deposit a sum of Rs.32,775 (Rupees thirty two thousand seven hundred and seventy five only) within six weeks and continue to deposit accruing rents in the sum Rs.575 (Rupees five hundred and seventy five only) per month, the first such deposit being made before the 10th of November, 1995 and thereafter to be continued to be made before the 10th of each calendar month. The amount or amounts so deposited with the Nazir of this Court shall not be withdrawn by the respondent. Application disposed of. (1) C.M.A. No. 1152 of 1995, dated 6-12-1995 was filed on behalf of the appellant under section 148, C.P.C. read with section 151, C.P.C. seeking condonation of delay in depositing the rent and seeking further time to comply with the order dated 22-10-1995. (2) C.M.A. No. 1153 of 1995, is an application under section 16(2). of the Sindh Rented Premises Ordinance, 1979 filed on behalf of the respondent to strike off the defence of the appellant as he failed to comply with the order dated 22-10-1995. Mr. Bashir Ahmed, the learned counsel for the appellants submitted that the amount could not be deposited within six weeks due to bona fide misunderstanding/miscalculation of period as according to him, order dated 22-10-1995 was vague and it was not clear as to when the period for payment would start. He has taken the plea that Friday and Saturday i.e. 1st and 2nd December, 1995, were holidays and on the 3rd there was some strike and on the 4th December he could not deposit the arrears of rent due to death of his close friend/relative and on the 5th when he approached the Nazir to deposit the arrears the Nazir refused to accept the same and as such the application was made on the 6th of December, 1995. According to him, the grounds of non compliance are very sound and as such the period may be condoned. However, Mr. K.B. Bhutto, the learned counsel for the respondents contended that the order very clear and it was understood that the period for payment will start from the following day after passing of the order and six weeks means forty two days which expired on the 2nd of December, 1995, but the opponent made the application on 6th and that too praying for grant of seven days to deposit the arrears of rent which indicate that even on that date he did not have the money to deposit as such the application be dismissed and the defence of the appellant be struck off. Admittedly, the amount of Rs. 32,775 was deposited on 10-12-1995. It is pertinent to mention here that the present appeal has also been filed against the tentative order dated 26-3-1995 passed by the Rent Controller directing the opponent to deposit the arrears of rent within thirty days and future rent to be deposited on or before the 10th of each calendar month, which the opponent failed to comply with. The learned counsel for the appellants could not substantiate his grounds for non-compliance of the order dated 22-10-1995. Not only that he failed to deposit the rent by 6-12-1995, the day application for extension of time was filed but he took another four days to deposit the rent which in itself is self-explanatory as to the non-availability of funds with the appellants. None of the pleas raised on behalf of the appellants were "beyond human control". In the case of Javaid Iqbal v. Rana Muzaffar Khan (1976 SCMR 229), where the tenant had failed to deposit the future monthly rent at specified rate and took the plea that he was not apprised of the order by his counsel and as such default was not wilful. It was held "petitioner/tenant being negligent in prosecution of his defence by failing to keep himself fully informed of order passed against him, default in payment of rent not unavailable or beyond his control; hence order striking off defence unexceptional". In the present case, the appellant No.2 was present when the order was passed by this Court and as such the plea that the order was vague has no force. The appellant had sufficient time to deposit the rent and if he chose to deposit the same on the last few days then he must suffer for his own negligence. In the case of Fazlur Rehman v. Mst. Sarwari Begum and others (1986 SCMR 1156), the learned Rent Controller had struck off the defence of the tenant for non-compliance of the order for depositing of rent. It was observed that "the appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him". As such the appeal was dismissed. In the present case also the appellant had enough time to deposit the rent but failed to do so and moved an application, that too after the expiry of the period granted and the reasons given for condonation of delay are not at all cogent and could have been avoided by him in case he was serious in complying with the rent order. Next argument of Mr. K.B. Bhutto, the learned counsel for the respondent is that the High Court is competent to strike off the defence where the tenant has failed to deposit rent in compliance of the order to the same. As far as the question of striking off the defence by the Appellate Court is concerned in the case of Abdul Qayyum Ansari v. Salahuddin Qureshi (PLD 1974 Kar. 10). It was held that "Appellate Authority as well as High Court in appeals under section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, is competent to exercise powers conferred on Controller under section 13(6) and can order deposit of rent pending appeal and strike off defence for non-compliance with its order." It was held that the view taken in Roshan Din's case (PLD 1969 Kar. 546) is correct and must be followed in this Court and in all subordinate Courts. In the case of M/s Crescent Publicity Service v. S.M. Younus and others (1980 SCMR 779), the above referred judgment was upheld and the petition was accordingly dismissed. Since the appellant's defence is struck off, this appeal stands dismissed. However, the appellant is granted sixty days' time from the date of this order to vacate and hand over vacant peaceful possession of the premises to the respondent/landlord. C.M.A./M-315/K Ejectment upheld.