1983 PLP 2068 (CLC)

12‑10‑1978 8‑11‑1978 1319 1856 1913 465 1271 2017 2726 3359 Total amount 65‑00. 65‑00. 65‑00. 195‑00 10,855.00 65‑00. 65‑00. 65‑00. 65‑

00. Rs.11,310.00."

6. Though after passing of the order on 26th March, 1980 by the learned lower appellate Court, the appellant did not deposit Rs. 130 but it is agreed by both the learned Advocates for the parties that while passing the impugned order striking off the defence, 'the sum of Rs. 200 deposited by the appellant between 14th December, 1967 to 14th. March, 1968 mentioned above, was not taken into consideration. According to Mr. Shaukat, ‑learned Advocate for appellant this amount ought to have been taken into consideration, and if so done, it would be found that the appellant had deposited more than Rs. 130 and that there was no default. Mr. Bhutto the learned counsel for the respondent on the other hand argued that the appellant was bound to have complied with the order dated 26th March, 1980 passed by the learned District Judge in C. A. No. 457/78 and accordingly on the failure of the appellant to deposit Rs. 130 after the said date, the appellant cannot be permitted to take advantage of the sum of Rs. 200 earlier deposited by him and thus try to avoid the consequences of non‑compliance of order under section 16(2) of the Sind Rented Premises Ordinance, 1979.

7. I have carefully considered the respective arguments advanced b the learned counsel for the parties. The fact which stands admitted by both the learned counsel for the parties as already noted above, is that Rs. 200 were already lying deposited in Court by the appellant (which 14 amount was over and above the sum of Rs. 11,310 separately deposited as per Nazir's report of 30th November, 1980. Thus, as against the sum of Rs. 130 to be deposited as per appellate order dated 26th March, 1980 we find that Rs. 200 were lying deposited with Nazir and the said amount ought to have been taken into consideration while determining if any default had been committed by the appellant. It would make no difference that this amount of Rs. 200 was deposited earlier than 26th March, 1980 when the appellate Court gave direction for deposit of Rs. 130 within one month of the passing of the said order. ‑ The direction of the learned appellate Court requiring the appellant t deposit Rs. 130 as rent for June and July, 1978 was based on an obvious factual mistake in view of omission to bring to the notice of the Court that Rs. 200 were already lying in deposit with the Nazir. In my humble view as laid down in the case of lkramuddin v. Mahboob Ali (P L D 1978 Kar. 145) it is open to the appellant to show that the order for deposit of tentative rent passed by the learned District Judge was factually incorrect for the reason that the appellant had already deposited the entire amount (in fact more than what he was directed to be deposited. Reference be also made here to the case of Barkat Ali v. Pakistan Sanitary and Drainage Works (1974 S C M R 75) where the Honourable Supreme Court repelling the contention that default was committed in deposit of rent and dismissing the petition for leave to appeal observed as follows :‑ The learned Judge in the High Court of Sind and Baluchistan took the view that if the time‑barred rent which had been deposited as arrears by the tenant and actually withdrawn by the landlord is taken into account, then he must be given credit for the same so far as future rent is concerned and if this is done, then there will be no default at all and there will be some amount still standing to the credit of the tenant. The order of the Rent Controller was, accordingly, restored. The landlord has now come up for special leave to appeal in this Court but we are of the opinion that this petition is wholly without any substance. The decision of the High Court is on the basis of at least two decisions of this Court. one in the case of Ashfaqur Rehman v. Ch. Muhammad Afzal P L D 1968 S C 230 and the other in the case of Ashfaqur Rehman v. Ch. Vuhammad Afzal P L D 1971 S C 230.

8. For the aforesaid reasons this appeal succeeds and is remanded in terms of short order passed on 18th May, 1982 which reads aslc follows :‑ "For reasons to be recorded separately this appeal is allowed and the order dated 21st October, 1982 is set aside. Since the negligence on the part of the appellant's Advocate appearing in the lower Court has resulted in delay in disposal of the case pending since 1967. 1 allow Rs. 500 as special costs against the appellant to be paid to the respondent's Advocate within 15 days." M. Y. M. Appeal accepted.