1989 PLP 479 (CLC)

The main controversy between the parties centres round the default committed by the respondent in compliance with the order passed by the Rent Controller, Karachi, under subsection (1) of section 16 of the Sind Rented Premises Ordinance, 1979.

2. The appellant had filed an application for ejectment against the respondent on the grounds of default in payment of rent, subletting of premises, and personal requirement. On 23‑12‑1982, the learned Rent Controller directed the respondent to deposit arrears of rent and monthly rent due in the following words: "Heard parties, Advocates. The rate of rent and period of arrears of rent is admitted. The opponent states that he is depositing the rent in Miscellaneous Rent Application No.6004 of 1980. Hence I direct that opponent should deposit the arrears of rent from May, 1980 to November, 1980 at the rate of Rs. 53.75 p.m., amounting to Rs. 1,505 only within one month. The amount deposited in Miscellaneous Rent Application No. 6004 of 1980, be transferred to this case and be adjusted towards the arrears of rent. The opponent is further directed to deposit the rent of each current month on or before the 10th day of each following month. The learned counsel for opponent states ‑that he has already deposited rent upto February, 1983, under Miscellaneous Rent Application No.6004 of 1980. If. this is so, the rent deposited in Miscellaneous Rent Application No.6004 of 1980, be treated as deposit in this case. The applicant is entitled to withdraw the amount so transferred and deposited in this case."

3. The respondent did not deposit the rent as directed, and continued to deposit the same in Miscellaneous Rent Application No. 6004 of 1980. In the event that happened the appellant moved an application on 7‑9‑1986, under subsection (2) of section 16 of the Sind Rented Premises Ordinance, 1979, for striking off the defence of respondent. The respondent admitted to have deposited the rent in Miscellaneous Rent Application No.6004 of 1980. He, however, took the plea of waiver. The learned Rent Controller considered this application as vague and dismissed it vide order, dated 13‑10‑1986. This order is the subject‑matter of the present appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979. 4. ‑ The failure in compliance with the order of Rent Controller, dated 23‑12‑1982, is not disputed by the respondent. He has simply taken the plea that IA the deposit was being made regularly in Miscellaneous Rent Application No. 6004 of 1980, and no prejudice appears to have been caused to appellant.: The question of non‑compliance of an order under subsection (1) of section 16 of the Sind Rented Premises Ordinance, 1979, in a situation like this was examined in case of Dr. Abdullah Ghangro v. Mst. Tahira Begum, reported in 1984 CLC 3102, and it was held that where the deposit was made by the tenant in miscellaneous rent proceedings, in violation of an order under subsection (1) of section 16, there was non‑compliance of the order of Rent Controller. A question similar to that involved in this appeal was also examined by the Supreme Court in Ghulam Hussain v. Mst. Roshan Bibi reported in 1980 SCMR 1714, where the tenant took the same plea of deposit in Miscellaneous Rent Application in violation of the order of Rent Controller, and it was held:‑

3. In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application: The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the orders by depositing the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sind Rented Premises Ordinance:"

5. In view of this authoritative decision of the Supreme Court, the view taken in Muhammad Yousuf v. Maqbool Ahmad, reported in 1985 C L C 2862 is not relevant.

6. The question of waiver need not detain me long. This argument was effectively answered in Mst. Bachi Bai v. Ghulam Abbas, reported in P L D 1972 Kar. 278 m which number of authorities were considered and finally it was held:‑‑ "In my humble opinion, these observation: state the correct law and applying them to the present case, I am of opinion that the delay by the respondent in filing his application was not inconsistent with the continuance of his right because, as I have already explained, the said Ordinance has not prescribed any period for filing an application in striking off the defence of a tenant. Similarly, it cannot conceivably be contended that the appellant had altered her position to her detriment on account of the respondent's delay, therefore, this is not a case in which waiver can be said to have ripened into an estoppel. Accordingly I cannot accept learned counsel's argument that the respondent's delay by itself amounted to waiver, and I am fortified in my opinion by a judgment of the Calcutta High Court reported in Midnapore Zamindary Co. v. Kumar Chandar A 1 R 1943 Cal. 5 1‑1, a. case to which Mr. Arfin referred me."

7. When a liability is imposed by a provision of law that cannot be wiped off only because the landlady did not object to such default at the earliest opportunity. It was a recurring default spread over a period of four years and even single default preceding to making of application for striking off the defence was sufficient to invoke the provisions of subsection (2) of section 16 of the Sind Rented Premises Ordinance, '1979. 1n this view of the matter the observations made in Ghulam Muhammad v. Mst. Shameema Khatoon, reported in 1984 C L C 3440, are not relevant in this case.

8. Having regard to the above factual and legal position, I am of the view that the defence of respondent, who had violated the order of Rent Controller for a continuous period of four years, was liable to be struck off. The impugned order is set aside and the defence of respondent is struck off. The appeal is allowed, but the parties are left to bear their own costs. The respondent is, however, allowed two months' time to vacate the demised premises. H.B.T./Z‑78/K Appeal allowed.