1983 PLP 3051 (CLC)

Date of hearing : 4th May, 1983. This is a Second Rent Appeal. Rent Case No. 1679/1678 was filed by the respondent/landlord for eviction of the appellant tenant from the premises in question on the ground of default in the payment of rent. After the filing of the written‑statement, rent account was filed by Advocate for the respondent on 10th August, 1978 show in root due from November, 1977 to July, 1978 amounting to Rs. 270 at the admitted monthly rent of Rs.

30. On 17th August, '.978 tentative sent order was passed by the learned Rent Controller in the presence of the counsel for the respondent, none being present for the appellant. The Rent Con troller directed the deposit of Rs. 270 less the amount df rent which the appellant had already deposited in Miscellaneous Rent Case. Direction was also given for deposit of future monthly rent. It is an admitted position that there is non‑compliance of the tentative rent order dated 17th August, 1978 on the part of the appellant. An application for striking off the defence was filed by the respondent. An application fer review of the tentative rent order was also moved by the appellant, The appli cation for review was dismissed and the application under section 135(6) of the 1959 Ordinance was granted and the defence of the appellant was struck o$' by order dated 13th January. 1979. The appellant filed Rent Appeal No.68/1979 but the same was dismissed by the learned IV Additional District Judge, Karachi by his order dated 2nd April, 1979. By this Second Appeal the two impugned orders of the learned Rent Controller and the learned First Appellate Authority are challenged. I have heard Mr. Anis Ahmad, learned counsel for the appellant and Mr. S. Azizul Hassan, Advocate, who was appeared on behalf of the respondent. It was first contended by learned counsel for the appellant that the appellant was only liable to pay Rs. 15 per month as he had deposited a sum of Rs. 1,266 with the respondent as is apparent from the agreement of tenancy dated 9th April, 1974 according to which Rs. 15 was to be paid towards monthly rent and an amount of Rs. 15 per month was to be adjusted from the amount of Rs. 1,

266. In the present case apart from g this agreement, there is a second tenancy agreement dated 3rd August, 1977 in which there is no reference to the amount of Rs. 1,266 but reference is made to an amount of Rs. 500 deposited by the appellant with the respondent as fixed deposit liable to be refunded when the appellant vacates the premises and bands over possession of the same to the respondent. According to the learned First Appellate Authority, the second agreement supersedes the first agreement as the second agreement neither mentions the deposit of Rs. 1,266 nor mentions about the adjustment of Rs. 15 every month as was mentioned in the first agreement dated 9th April, 1974. As observed earlier, second agreement dated 3rd August, 1977 only speaks about the fixed deposit of Rs. 500 refundable on hand ing over possession of the premises to the respondent. It may be mentioned here that in the written statement no plea was taken by the appellant on the basis of the first agreement and a very brie-written statement was filed, in which it was admitted that the appellant was a tenant of the respondent at a monthly rent of Rs: 30 under agreement of tenancy dated 3rd August, 1977. Allegation about the default in the payment of rent was denied. The entire defence taken by the appeal land in his written statement is contained in para. 2 of the written state ment which reads as follows :‑ "That the contents of para. 2 of the application are denied. The applicant himself avoided to receive rent and as such the opponent had to send money‑order which the applicant refused to accept. Therefore, the opponent made an application for the deposit of rent in Court and deposited the same as per Court orders." It would be noticed from the written statement that the relationship between the parties was admitted to be based on the second agreement dated 3rd August, 1977 and no reference was made to the first agreement of 1974. The conclusion of the learned First Appellate Authority that the second agreement of 1977 superseded the first agreement is, therefore, correct. It was contended by learned counsel for the appellant that in view of what was available on the record on the date when the tentative rent order was passed, a legal and valid tentative rent order was passed by the learned Rent Controller but the order dismissing the review application was illegal and the learned Rent Controller should have reviewed the tentative rent order after having been apprised of the existence of the first agreement of 1974. If the tentative rent order was validly and legally passed, the defence of the appellant was rightly struck off on account of non‑compliance of the tentative rent order. I do not agree with the contention of learned counsel for the appellant that the tentative rent order was liable to review. In view of the admission contained in the written statement filed by the appellant and contents of the tenancy agreement dated 3rd August, 1977 no ground was made out for review of the tentative rent order. Further no reason or explanation has been advanced to show why reference about first agreement was not made in the written statement and no plea was taken before or at the time of the passing of the tentative rent order based on the first agreement of 1974. In this background and in view of the contents of the written statement, the. conclusion of the learned First Appellate Authority that the second agreement dated 3rd August, 1977 superseded the first agree ment, as observed earlier, has been correctly reached. It is not the case of the appellant that on account of reasons which were beyond his control that he was prevented from depositing the rent ordered by the tentative rent order dated 17th August, 1978. In the circumstances the defence of the appellant on account of non‑compliance of the tentative rent order has been rightly struck off. As a result Second Appeal No. 370 of 1979 is dismissed. There will be no order as to costs as costs are not claimed by Mr. S. Azizul Hassan, Advocate for the respondent. The appellant is, how ever, granted time till 31st August, 1983 to vacate the premises. M, Y. H. Appeal dismissed.