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‑‑‑ S. 16(2)‑ Eviction proceedings‑ Default in payment of rent Parties admitting that a sum of Rs. 2,000 already lying deposited in court by tenant as rent for period in dispute and as per Nazir's report same being over and above of Rs. 11,310 separately deposited as rent‑Directions is sued in this behalf by .appellate Court found based on factual mistake‑Case remanded by High Court for fresh decision, in circumstances.

Ikramuddin v. Mahboob Ali P L D 1978 Kar. 145 and Barkat Ali v. Pakistan Sanitary and Drainage Works 1974 S C M R 75 ref.

S. A. Shaokat for Appellant.

Akhtar Bhutto for Respondent.

Date of hearing : 18th May, 1982.

This appeal is directed against the order dated 21st September, 1980 passed by the Rent Controller, Hyderabad in Rent Application No. 93/1967 whereby the defence of the appellant was struck off under section 16(2) of the Sind Rented Premises Ordinance, 1979.

1. I do not find it necessary to refer to all the various orders passed and appeals preferred and disposed of arising out of the above‑mentioned case as to deposit of rent and their alleged non‑compliance. Suffice it would be to refer here to the order dated 22nd May, 1978 passed by the Rent Controller directing the appellant to deposit arrears of rent upto May, 1978 before 15th July, 1978 which amounted to Rs. 10,855 and future rent at Rs. 65 p. m. before every 15th day of calendar month.

2. An application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance was filed on 13th October, 1980 by the respondent for alleged default in payment of future monthly rent whereupon report was called from the Nazir. On perusal of Nazir's report which merely showed amounts deposited between 13th October, 1973 and 8th November, 1978 (but did not show amount earlier deposited) the learned Rent Controller while holding that default was committed in deposit of rent for the months of June and July, 1978, defence of the appellant was struck off by order passed on 14th December, 1978.

Against the above order Rent Appeal No. 457 of 1978 was preferred by the appellant which was allowed on the ground that the appellant had deposited Rs. 10,855 on 8th July, 1978 and non‑payment of rent for June and July, 1978 amounting to a meagre amount of Rs. 130 resulted due to mistake on the part of the office clerk who issued the 'fardi' showing the amount of Rs. 10,855 as inclusive of rent upto July, 1978. The learned appellate Court in the circumstances held that the appellant could not be penalised for mistake of the office. While allowing the appeal by order passed on 26th March, 1980 the learned Court further observed :‑

"For the reasons discussed .by the above, I set aside the impugned order and allow the appeal subject to the condition that the appellant shall pay the rent for the months of June and July, 1978 amounting to Rs. 130 in the lower Court in one month from today."

3. The appellant however failed to deposit the amount of Its. 130 after the passing of the above order which led to the finding of another application on 10th September, 1980 under section 16(2) of the Sind Rented Premises Ordinance 1979, before the Rent Controller for striking off the defence of the appellant. The Nazir submitted his report according to which, the order of the learned District Judge passed in Rent Civil Appeal No. 457/78 had not been complied with. The above application was fixed for hearing on a number of dates but the Advocate for the appellant, Mr. S. Ali Ahmed Taqvi, repeatedly remained absent, and thus the appellant's case suffered due to non‑representation, and resulted in striking off his defence by the impugned order passed by the learned Rent Controller on 21st September, 1980.

4. Against the .above order this appeal has been preferred under section 21 of the Sind Rented Premises Ordinance, 1979.

5. A number of pleas were advanced by the Advocates for the parties in support of their respective contentions. The case in my opinion can however be disposed on a shorter ground namely by taking into consideration the amounts deposited, by the appellant with the Nazir of the Civil Court from time to tame.

I. As per certificate dated 13th October, 1980 issued by the Nazir following amounts were deposited by the appellant :‑

"(1) Rent Receipt No. 1287 dated 14th December, 1967 for Rs. 50

(2) Rent Receipt No. 1476 dated 13th January,1967 for Rs. 50

(3) Rent Receipt No. 1708 dated 13th December,1968 for Rs. 50

(4) Rent Receipt No. 1939 dated 14th September,1968 for Rs. 50"

II. According to Nazir's report dated 30th November, 1980 the following amounts were also deposited :‑

6. Though after passing of the order on 26th March, 1980 by the learned lower appellate Court, the appellant did not deposit Rs. 130 but it is agreed by both the learned Advocates for the parties that while passing the impugned order striking off the defence, 'the sum of Rs. 200 deposited by the appellant between 14th December, 1967 to 14th. March, 1968 mentioned above, was not taken into consideration. According to Mr. Shaukat, ‑learned Advocate for appellant this amount ought to have been taken into consideration, and if so done, it would be found that the appellant had deposited more than Rs. 130 and that there was no default.

Mr. Bhutto the learned counsel for the respondent on the other hand argued that the appellant was bound to have complied with the order dated 26th March, 1980 passed by the learned District Judge in C. A. No. 457/78 and accordingly on the failure of the appellant to deposit Rs. 130 after the said date, the appellant cannot be permitted to take advantage of the sum of Rs. 200 earlier deposited by him and thus try to avoid the consequences of non‑compliance of order under section 16(2) of the Sind Rented Premises Ordinance, 1979.

7. I have carefully considered the respective arguments advanced b the learned counsel for the parties. The fact which stands admitted by both the learned counsel for the parties as already noted above, is that Rs. 200 were already lying deposited in Court by the appellant (which 14 amount was over and above the sum of Rs. 11,310 separately deposited as per Nazir's report of 30th November, 1980.

Thus, as against the sum of Rs. 130 to be deposited as per appellate order dated 26th March, 1980 we find that Rs. 200 were lying deposited with Nazir and the said amount ought to have been taken into consideration while determining if any default had been committed by the appellant. It would make no difference that this amount of Rs. 200 was

deposited earlier than 26th March, 1980 when the appellate Court gave direction for deposit of Rs. 130 within one month of the passing of the said order. ‑

The direction of the learned appellate Court requiring the appellant t deposit Rs. 130 as rent for June and July, 1978 was based on an obvious factual mistake in view of omission to bring to the notice of the Court that Rs. 200 were already lying in deposit with the Nazir. In my humble view as laid down in the case of lkramuddin v. Mahboob Ali (P L D 1978 Kar. 145) it is open to the appellant to show that the order for deposit of tentative rent passed by the learned District Judge was factually incorrect for the reason that the appellant had already deposited the entire amount (in fact more than what he was directed to be deposited.

Reference be also made here to the case of Barkat Ali v. Pakistan Sanitary and Drainage Works (1974 S C M R 75) where the Honourable Supreme Court repelling the contention that default was committed in deposit of rent and dismissing the petition for leave to appeal observed as

follows :‑

The learned Judge in the High Court of Sind and Baluchistan took the view that if the time‑barred rent which had been deposited as arrears by the tenant and actually withdrawn by the landlord is taken into account, then he must be given credit for the same so far as future rent is concerned and if this is done, then there will be no default at all and there will be some amount still standing to the credit of the tenant. The order of the Rent Controller was, accordingly, restored.

The landlord has now come up for special leave to appeal in this Court but we are of the opinion that this petition is wholly without any substance. The decision of the High Court is on the basis of at least two decisions of this Court. one in the case of Ashfaqur Rehman v. Ch. Muhammad Afzal P L D 1968 S C 230 and the other in the case of Ashfaqur Rehman v. Ch. Vuhammad Afzal P L D 1971 S C 230.

8. For the aforesaid reasons this appeal succeeds and is remanded in terms of short order passed on 18th May, 1982 which reads aslc follows :‑

"For reasons to be recorded separately this appeal is allowed and the order dated 21st October, 1982 is set aside. Since the negligence on the part of the appellant's Advocate appearing in the lower Court has resulted in delay in disposal of the case pending since 1967. 1 allow Rs. 500 as special costs against the appellant to be paid to the respondent's Advocate within 15 days."

M. Y. M. Appeal accepted.

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