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Civil Petition for Special Leave to Appeal No. 93‑R of 1979, decided on 2nd April, 1980.
(On appeal from the judgment and order of the High Court of Sind dated 17‑2‑1979 in Second Appeal No. 68 of 1977).
‑‑‑‑ S. 13(6)‑Striking off defence‑‑Single default, held, sufficient to bring case within mischief of S. 13(6).
S. 13(6)‑Striking off defence‑High Court, held, competent to strike off defence of tenant on his failure to comply with High Court's order in second appeal to deposit rent.‑[Second appeal].
Roshan Din v. S. M. Badruddin P L D 1959 Kar. 546 an Abdul Qayum Ansari v. Salahuddin Qureshi P L D 1974 Kar. 10 rel.
Hamid Aslam Qureshi, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 2nd April, 1980.
‑The respondents had filed an eviction application against the petitioner and its eviction was ordered by the Rent Controller. Karachi, therefore, the petitioner had filed an appeal in the District Court, Karachi, which was allowed. The respondents had, therefore, filed a second appeal, under the West Pakistan Urban Rent Restriction Ordinance, 1959, (hereinafter called the said Ordinance), in the Sind High Court and during the pendency of the appeal, a learned Judge of the High Court had passed the usual order directing the petitioner to deposit the monthly rent "before the 15th day of each Calendar month in terms of the order passed by the Controller." As the petitioner had committed default in the payment of monthly rent, the respondents filed an application for striking off their defence. And as this application was allowed by a learned Judge of the Sind High Court on 17‑2‑1979, the petitioner filed a petition for leave which was dismissed for default on 10‑2‑1980. It has filed a restoration application, which we have allowed and we now turn to the merits of the petition.
Learned counsel admitted that the petitioner had committed default in the payment of rent but stated that it was a single default. Therefore, the defence should not have been struck off. Although the default was a single default, the petitioner had brought itself within the mischief of subsection (6) of section 13 of the said Ordinance and the learned Judge has given cogent reasons for rejecting its explanation for its admitted failure to comply with the High Court's order for the deposit of rent, and no ground whatever has been) made out for interference with the discretion exercised by the High Court against the petitioner.
Learned counsel's only other submission was that the learned Judge had erred in striking off the defence of the petitioner, because the High Court in its second appeal did not have the power to strike off a tenant's defence even if the tenant was in breach of the order for deposit of rent. This submission was rejected in the High Court and in rejecting it, the learned Judge relied on judgments of the High Court at Karachi Roshan Din v. S. M. e Badruddin (P L D 1969 Kar. 546) and in Abdul Qayum Ansari v. Salahuddin Qureshi (P L D 1974 Kar. 10). We agree with the view taken in these judgments, therefore, we see no merit in learned counsel's submission.
No case has been made out for the grant of special leave and the petition is dismissed, but we give the petitioner four months' time to hand over vacant possession of the demised premises to the respondents provided it continues to deposit the monthly rent.
Petition dismissed.
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