1984CLC931 (PLP)

‑‑S. 16(2)‑Striking off defence‑Tentative rent order passed after summary enquiry without finally determining amount of rent due or payable by tenant‑Rent receipts of payment not produced Order, held, cannot be termed arbitrary, capricious or illegal‑Con tention that enquiry should have been held by Rent Controller and if there had been default in payment of rent only then application for striking off defence could have been allowed, repelled. (b) Sind Rented Premises Ordinance (XVII of 1979)‑ ‑‑--Ss. 10(2) & 16(2)‑Rent, payment of‑Acknowledgment‑Land lord denying payment of rent but tenant alleging to have paid and claiming that receipt not issued by landlord‑Held, at time of passing tentative rent order Rent Controller taking into considera tion material placed before him and not finally determining amount of rent. due‑ Order requiring tenant to deposit rent in `'` circumstances, not illegal. (c) Sind Rented Premises Ordinance (XVII of 1979) ‑ ‑‑ S. 16(2)‑Default in payment of rent‑Illness of tenant‑No evidence available on record to establish illness of tenant that he could not move from his bed‑Burden that due to illness it was humanly impossible for tenant to deposit rent in ,time, held, not discharged. ‑‑Ss. 14, 15 & 16(l)‑Ejectment application titled under S. 14 Treated an application filed under S.15 of Ordinance by Rent Controller and proceedings taken accordingly‑Tentative rent order and order of striking off defence, held, passed com petently. Date of bearing : 3rd March, 1983. JUDGMENT In Rent Case No. 4272 of 1980 a tentative rent order dated 23rd November, 1981 was passed requiring the appellant/tenant to deposit the arrears of rent from October, 1979 to October, 1980 amounting to Rs.3,900 by 31st January, 1982 and the appellant was also directed to deposit future rent before 10th of each succeeding month. Admittedly, the arrears were deposited on 8th February, 1982. Therefore, there is a default in the deposit of rent by the appellant as ordered by the Rent Controller. An. application for striking off the defence was moved, which was allowed and the defence of the appellant was struck off by order dated 5th April, 1982 and the appellant was ordered to be ejected The appellant being aggrieved has filed the present first rent appeal. I have heard Mirza Waqar Hussain, learned counsel for the appellant. No one has appeared on behalf of the respondent.

2. It was first contended by the learned counsel for the appellant, that in fact the rent for the period. for which the Rent Controller had ordered for deposit bad been paid but receipts bad not been issued by the respondent‑. It was contended by the learned counsel that an enquiry should have been held by the Rent Controller when the application for striking off the defence of the appellant had been made to find out whether in fact rent had been paid or not and if the finding was that the rent in fact had been paid, the application then would have been rejected and if the Rent Controller had found that the rent in fact had not been paid, only. then the application for striking off the defence could have been allowed. I do not agree with the contention of the learned counsel for the appellant. The Rent Controller had passed the tentative rent order after a summary enquiry. He was not, finally determining the amount of rent due or payable by the appellant. Rent receipts had not been produced and in the circumstances the tentative rent order directing the appellant to deposit rent from October, 1979 to October, 1980 cannot be termed to be arbitrary, capricious or illegal.

3. Reference was also invited by the learned counsel for the appel lant to section 10(2) of the 1979 Ordinance for the preparation that the landlord is now required to acknowledge in writing receipts of rent. This contention does not take the learned counsel very far inasmuch as the time of passing the tentative rent order, the Controller takes into consideration the material placed before him and passes the order. He is not finally determining the amount of rent due. He is passing a tentative rent order. The case of the respondent was that rent had not been paid whereas the case of the appellant was that the rent had been paid and receipts had not been issued. In the circumstances passing an order requiring the appellant to deposit rent was not illegal.

4. It was then contended that there was only delay of seven days in the deposit of arrears and as the appellant was lying ill and his wife was also admitted to hospital, this period should have been condoned. There is no evidence on record to establish that the illness of the appel lant was such that he could not move from his bed. The burden off establishing that the delay in deposit was on account of such circum. stances that it was humanly impossible for the appellant to deposit the rent in time was on the appellant. This burden has not been discharged by the appellant. 5, It was then contended that the rent application itself was not maintainable inasmuch as it was titled under section 14 but in fact it was an application under section 15 of the 1979 Ordinance. No doubt the application is titled under section 14 but it has been treated as an application under section 15 by the Rent Controller also and proceedings were being taken by the learned Rent Controller on the assumption that it was an application under section 15 of the 1979 Ordinance. In any case the tentative rent order had been passed com petently and the orders striking off the defence also do not suffer from any illegality. I find no merit in this appeal. F.R.A. No. 673 of 1982 is dismissed but with no order as to costs. M. Y. H. Appeal dismissed.