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Second Appeal No. 360 of 1979, decided on 3rd November, 1982.

S. 13 (6)‑Calculation of amount of arrears of rent while passing tentative rent order‑Rent Controller striking off tenant's defence for non‑compliance of order under S. 13 (6) and ordering his ejectment Tenant not depositing arrears of rent and' future monthly ‑rent until filing appeal before Additional District Judge‑Rent Controller taking into consideration tenant's plea as to rate of rent and then passing tentative rent order‑No such plea taken in tenant's application for grant of time to deposit arrears of rent‑No such ground taken even in appeal before Additional District Judge‑Rent Controller himself calculating amount of arrears or rent and allowing adjustment of amount deposited by tehant‑Held, tenant bound to comply with order of Controller under S. 13(6).

P L D 1964 Kar. 521 ref‑

Muhammad Aslam v. Muhammad Umer and another P L D 1982 Kar. 107 distinguished.

Mushtaq Hussain v. Muhammad Shafi 1979 S C M R 496. rel.

Sh. Muhammad Usman for Appellant.

Mubarak Hussain Siddiqui for Respondent.

Date of hearing : 3rd November, 1982.

This second appeal is directed against the order dated 12‑8‑1979, passed by VI Additional District Judge, Karachi in Rent Appeal No. 51 of 1979, whereby he dismissed the appeal filed by the appellant under section 15 of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordi nance), against the order dated 12‑12‑1978, passed by III Controller,. Karachi, whereby the defence of the appellant was struck off for non‑compliance of the order dated 2‑8‑1978 passed by the Controller. The order of which non compliance was made reads as follows :‑

"Case called (I I a.m.) Advocate for applicant present. Nonie is present for the opponent, perused the pleadings and the rent account filed by the applicant and heard the Advocate for the applicant. Applicant claims rent at the 'rate of Rs. 200 plus Rs. 60 p.m. for electricity and 30 p.m. for water charges, opponent has admitted the rate of rent to be Rs. 200 but has denied the electricity and water charges. Advocate for applicant has shown me the receipts bearing the signature of the opponent whereby water and electricity charges at the above‑said rate were received by the applicant from the opponent, so far as the arrears of rent is concerned, applicant claims the same from July, 1977 to July, 1978, but he has stated that the opponent has deposited a surf, of Rs. 1,800 in Small Causes Court in D. W. 350177. The opponent is claimed to have paid the rent upto July, 1978 and has stated that ‑be holds a valid receipt for such payment, but no such receipt has been filed or produced before me. In the circumstances, mentioned above I direct the opponent to. deposit, in Court arrears of rent tentatively at the rate of Rs. 200 plus 60 plus 30 totalling Rs. 290 per month for a period from July, 1977 to July, 1978, amounting to Rs. 3,770, less the sum of Rs. 1,800 already deposited in the Small Causes Court in the said D. W. proceedings on or before 4th September, 1978.

The opponent is further directed to keep on depositing the future monthly sent at the above‑said rate commencing from August, 1978 before the 15th of each subsequent calendar month, till the final decision of this case."

It appears from the record that on 25‑10‑1978, the respondent filed an application under section 13(6) of the Ordinance for striking off the defence of the appellant. To this application the appellant filed objections mainly stating that he had not committed any default in the eye of law and that he was prevented by force of circumstances from depositing the arrears and has submitted an application for granting time. These objections were followed by an application under section 151, C. P. C. for granting some time (two months) to deposit the arrears of rent. In. the affidavit filed in support of the application it was stated that in the month of April, 1978, the respondent was badly wounded by stabbing and remained indoor patient and when he recovered he got asthama and remained bed ridden since March, 1978, and there was no other male member in the house to deposit the arrears of rent. However, the learned ‑ Controller rejected the plea and struck off the defence of the appellant holding that the photo‑stat copy of the Discharge Slip showed that he was discharged on 5‑9‑1978 (correct date is 5‑4‑1978) and medical certificate did not show that after 5‑9‑1978, he was unable to move.

Aggrieved by this order the appellant preferred an appeal in which he took the following grounds :

"(1) That the default alleged to have been committed by the appellant was not at all wilful as held by the learned trial Court as per the case law cited in P L D 1964 Kar. 521.

(2) That the circumstances preventing the appellant from complying with the rent Controller's order were patently beyond the control of the appellant in the light of Annexure '13'.

(3) That there was no neglect and negligence or default on the part of the appellant and the so‑called default was not wilful and intentional on the part of the appellant and was fit to be condoned by the learned Rent Controller. Further submission would be made at the time of hearing."

However, the learned Additional District Judge, Karachi, held that the medical certificate on which the reliance was placed by the appellant, certified that the appellant was advised to take rest from 15‑4‑1978 to 14‑9‑1978, which did not mean that the appellant was unable to move or could not have deposited the arrears of rent as per order of the Controller. He further held that even the rent for the months of August and September was not deposited and accordingly, he dismissed the appeal by the order now impugned before me in this second appeal.

I have heard Mr. Muhammad Usman, Advocate for the appellant and Mr. Mubarak Hussain Siddiqui, Advocate for the respondent.

I may mention here that Mr. Usman on my querry stated that no arrears of rent or future monthly rent was at all deposited until the filing of the appeal before the Additional District Judge.

He however, submitted that the order of the Controller whereby the appel lant was directed to deposit the rent was erroneous inasmuch as, firstly, that the rent was Rs. 200 per month as decided by the learned Judge, Small Causes Court, Karachi, and not Rs. 290 secondly, the Controller should have calculated the balance amount of arrears of rent himself instead of leaving the same to the parties. In support of the second part of the submission the learned counsel relied on a decision of this Court in Muhammad Aslam v. Muhammad Umer and another (1).

On the other hand the learned counsel for the respondent submitted that the order is not erroneous and in any case the appellant was bound to comply with the order of the Controller in view of the decision of the Supreme Court in Mushtaq Hussain v. Muhammad Shafi (2).

Now, so far as the first part of the submission is concerned it has no substance as the learned Controller had taken into consideration the pica the appellant as to the rate of rent and then bad passed the tentative rent order. Moreover, no copy of the order of' the Judge, Small Causes Court P L D 1982 Kar. 107 (2) 1979 S C M, R 496 Karachi in D. W. proceedings was placed before the Controller. Moreover, on 14‑9‑1978, the appellant had applied for grant of two months time to deposit the arrears of rent on medical ground and too such plea was taken therein. Mr. Mubarak Hussain Siddiqui learned counsel for the respondent is right in submitting that the appellant was bound to comply with the order of the Controller for the law is that as laid down by the Supreme Court in the case relied upon by Mr. Siddiqui.

I may here quote the relevant observations of the Hon'ble Judges of the Supreme Court :‑

"The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustable to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the ordinance, for directing deposit of tentative amount of rent. Actually compliance of' that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."

Further, no such ground was taken in the appeal before the learned Additional Judge' Karachi as would be clear from the grounds already quoted in extenso hereinbefore.

As regards the second objection that the Controller should have himself calculated the amount of arrears of rent instead of leaving the same to the parties, I find that the Controller did so as be tentatively found that the total amount due as the arrears from July, 1977 to July, 1978 Was Rs. 3,770 and he allowed adjustment of Rs. 1,800 already deposited by the appellant in the 11 Small Causes Court, Karachi. Therefore, the net amount could be found out by deducting the sum of Rs. 1,800 from Rs. 3,7710. So far of the case of Muhammad Aslam v. Muhammad Umar is con cerned in that case the total amount deposited by the tenant in Miscellaneous proceeding was not‑mentioned and therefore, the question as to what amount was deposited and what amount was to be deducted from the arrears claimed was left to the parties which could give rise to future controversy and it was for this reason that the learned Judge held that the provisions of section 13 (6) were not complied with. No such question could arise in the present case for the amount of arrears and the amount to be deducted there from both were mentioned.

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

K. M. A. Appeal dismissed.

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