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Second Appeal No. 455 of 1980, decided on 17th September, 1981.

----Ss. 13(6) & 15‑Striking off defence‑Default in payment of rent --Rent deposited by mistake or erroneously in other proceedings between same parties with intention to deposit same in rent proceedings in which order of deposit passed‑Default, held, not wilful.

Ikramuddin v. Mahboob Ali P L D 1978 Kar. 145 and Zahid Hussain Khan v. Muhammad Abdullah P L D 1979 Kar. 628 ref.

----S. 15(4)‑Appeal‑Default in payment of rent admitted by appellant but no explanation given therefor‑Appeal dismissed.

Faizanul Haq for Appellant.

Amiruddin Ahmed for Respondent.

Date of bearing : 17th September, 1981.

This Second Appeal under section 15(4) of the Sind, Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) is directed against the judgment of the learned 1st Additional District Judge, Karachi, dated 12th November, 1980, confirming the order of the Controller dated 5th April, 1979, whereby he struck off the defence of the appellant for non compliance of the order dated 4th July, 1978, passed by him under section 13(6) of the Ordinance.

The facts giving rise to this appeal briefly stated, ate that the respondent filed an application for eviction of the appellant from the premises on the grounds of default in payment of rent and personal requirement. During the pendency of the application, the Controller on 7th July, 1978 directed the appellant to deposit a sum of Rs. 1,860 on account of arrears of rent upto 30th June, 1978, by 15th August, 1978. He, however,‑ allowed the appellant to adjust the amount of rent deposited by him in Misc. Application No. 692/1978 which was filed by him seeking permission to deposit the rent. He further directed the appellant by the same order to continue to deposit future rent before the 15th of each succeeding month.

On 13th December, 1978, the respondent filed an application under section 13(6) of the Ordinance for striking off the defence of the appellant for non‑compliance of the order dated 4th July, 1978. It appears from the record that on 25th December, 1978, the appellant filed an application under section 151, C. P. C. seeking for an order to the respondent to withdraw the rent deposited by him in Misc. Application No. 692/1978.

Paragraph (1) of this application reads as follows :‑----

"That the opponent filed Rent Case No. 692/1978 (Akhtar Hussain v. Kabir Hassan) in the Court of IInd Rent, Controller, Karachi, and he was allowed to deposit the rent in the Court. He has deposited the rent as mentioned below.

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Receipt No. Date Amount

Rs.

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41088 1‑3‑1978 360

7811 7‑8‑1978 1,320

50003 12-7‑1978 120

31986 13‑12‑1978 120

20195 12‑10‑1978 240

After hearing the counsel for the appellant the learned Controller by the order dated 5‑4‑1979, held that the appellant had failed to comply with the order and the deposit of rent in Misc. Application No. 692/1978 would not be sufficient compliance of the order.

Aggrieved by the aforesaid order the appellant preferred an appeal under section 15(4) of the Ordinance but failed.

Dissatisfied with the order the appellant has come up in this second appeal.

I have heard Mr. Faizanul Haq, Advocate for the appellant and have gone through the record with his assistance.

The learned Advocate submitted that the appellant had deposited rent in Misc. Application No. 692/1978 and therefore it could not be said that there was a wilful default in the deposit of rent in accordance with the order of Controller. He relied in support of the submission on Ikramuddin v. Mahboob Ali (P L D 1978 Kar, 145) and Zahid Hussain Khan v. Muhammad Abdullah (P L D 1979 Kar. 628). Although I agree with the submission of the learned counsel that if the appellant had deposited rent by mistake or erroneous in other proceedings between the same parties, though he intended to deposit the same in rent proceedings in which the order for deposit of the rent was passed that would not amount to wilful default in compliance of such an order but the case cited by the learned counsel are not on the point argued by him. However, it may be stated that the appellant had deposited by 7th August a total sum of Rs. 1,800 but he had not deposited rent for the months of July and August by the due dates as would appear from the statement made by the appellant himself in the application under section 151, C. P. C. and quoted by me hereinabove. This aspect of the matter has been dealt with by the 1st Additional District Judge, Karachi, in his order and he has stated as follows;

"After perusal of the R & P and hearing the counsel and going through the relevant law, I have come to the conclusion that the appellant has failed to deposit rent of July, 1978 on or before 15‑8‑1978 and he has also failed to deposit rent for the months of August, before 15th September, 1978 inasmuch as rent was deposited during the month of September, 1978 as per application dated 20‑12‑1978 filed by Mr. Faizanul Haq, counsel for the tenant/appellant in the Court of Rent Controller and this amounts to admission of default in the payment of rent."

Now, it is submitted by Mr. Faizanul Haq that the learned 1st Additional District Judge, Karachi, could not have struck off defence of the appellant on the ground of default in the deposit of rent for the months of July or August, 1978, by the due date without giving the appellant an opportunity to explain the defaults.

In my opinion the submission is misconceived for the learned Additional District Judge has not struck off the defence of the appellant, but has only dismissed the appeal. As regards the question of no opportunity was given to the appellant to explain the defaults it may be stated the defaults were admitted by the appellant in paragraph (1) of his own application which I have quoted hereinabove. He gave no explanation whatsoever for default in the deposit of the rent for the months of August and September, 1978, although he filed the application on 25th December, 1978.

It was next submitted that the learned 1st Additional District Judge, Karachi should have condoned the default, but no explanation was offered even before him and no case was made out for condoning the defaults.

I, therefore, find no substance in this appeal and dismiss it with costs.

However, Mr. Faizanul Haq, Advocate at this stage requests that appellant may be allowed four months time to vacate the premises. Mr. Amiruddin Ahmed Advocate states that appellant may be allowed two months' time. I think that it will meet the ends of justice, if I allow the appellant three months' time to vacate the premises and put the respondent in possession thereof.

I accordingly grant the appellant three months' time to vacate the premises.

M. Y. H. Appeal dismissed.

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