2002 YLR 607 (PLP)

Muhammad Nasir Farooqi v. Mst. Zubaida and 2 others 1992 CLC 1086 and Syed Mir Hussain and others v. Additional District Judge and others 1998 MLD 135.ref. Ghulam Ali and M. Alam Khan for Appellants. Muazullah Barkandi for Respondent. Date of hearing: 16th March 2001. The facts stated in brief are that the respondent herein instituted application before the learned Rent Controller, Mardan for the ejectment of the appellant on the ground of personal default and expiration of period of tenancy. When the appellant failed to deposit arrears of rent in compliance with the order of the Rent Controller before 3-8-2000 he struck off the defence of the appellant and directed him to put the landlord/respondent possession of the demised premises wit two months. On being aggrieved by order of the learned Rent Controller the appellant assailed the same by filing this appeal

2. The learned counsel for the appellant contended that the learned Rent Controller was not present in the Court the dates before the date of hearing therefore, the appellant could not deposit the rent before the said date in compliance with his order. He next contended that even if the Rent Controller was present at attended the Court before the date hearing nonetheless, the Rent Controller was bound to have given an opportunity being heard to the appellant before striking off his defence. He in support of his contention relied on the case of Muhammad. Nasir Farooqi v. Mst. Zubaida and 2 others (1992 C L C 1086).

3. The learned counsel appearing on behalf of the respondent resisted all of the arguments advanced by the learned counsel for the appellant with much greater verve vigour and vehemence by contending at the bar that there is absolutely nothing on the record to support any of the reasons canvassed by the learned counsel for the appellant. He by placing reliance of the case Syed Mir Hussain and others v. Additional District Judge and others (1998 MLD 135) contended that the failure on the part of the appellant to deposit the rent even thereafter militate against him and rob him of any defence whatever.

4. I have seriously considered the contentions of the learned counsel for the parties and perused the record. The argument that the Rent Controller had not attended the Court before the date of hearing is not borne out from the record. The argument of the learned counsel for the appellant that before striking off the defence of the appellant, the learned Rent Controller was legally bound to have conducted an inquiry as to the causes of default in view of the provisions contained in section 27 of the West Pakistan Urban Rent Restriction Act, is not without substance. Without further discussing the unnecessary details I accept this appeal, set aside the impugned order and send the case back to the learned Rent Controller to decide it afresh in accordance with law within one month from the date of receipt of the file; after giving the appellant an opportunity of being heard as to the causes of default. However, the Rent Controller is to ensure the deposit of arrears after tentatively determining the same within ten days from the date of the appearance of the parties before him H.B.T/557/P Order accordingly.