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First Rent Appeal No. 599 of 1982, decided on 1st June, 1983.

‑‑‑‑‑ S. 16 (2)‑Default in payment of rent‑Striking off defence‑‑ Rent Controller directing tenant to deposit arrears of rent by specified dates and considering him not complying with orders striking off his defence‑‑Arrears of rent found paid by due dates as such order for striking off defence of tenant, held, not justified and same set aside, in circumstances.

M. Shah for Appellant.

M. A. Karim Siddiqui for Respondent.

Dates of hearing : 31st May and 1st June, 1983.

In this appeal the relevant point is that whether there was any default committed by the appellant in the payment of rent after an order of deposit of rent under section 16 (2) had been passed by the learned Rent Controller on 30th of November, 1981. Both the counsel have taken great pains to take me through various entries in respect of the payment which had been made by the appellant towards the rent. Before proceeding with the con sideration of the default it would be necessary to reproduce the operative part of the order of the Rent Controller dated 30th of November, 1981 :‑-----

"I direct the opponent to deposit the arrears of rent from May, 1978 to February, 1979 on or before 10th of January, 1982. He is further directed to deposit the amount for future monthly rent on or before 10th of each succeeding calendar month in this case and in this Court and to continue to deposit the same on or before 10th of each calendar month failing wherein, the defence shall be struck off."

The reasonable construction of this order would be that the arrears upto 30‑11‑1981 were in the sum of Rs. 2,000 which had to be deposited by 10th of January, 1982. Whereas the current rent was of the month of November, 1982 and was to be deposited by the 10th of December, 1981, and thereafter by the 10th of every succeeding calendar month rents were to he deposited. Now in this case the admitted position is that the arrears of Rs. 2,000 have been deposited by the appellant in Rent Case No. 5393 of 1978 on 4th January, 1982 and hence the order in respect of deposit of arrears has been complied with. There is another amount of Rs. 200 deposited by the appellant on 30th November, 1981 but in view of the doubt whether the deposit of this amount had been considered by the Rent Controller in his order dated 30th of November, 1981, I will treat this payment as the payment which has already been taken into consideration by the Rent Controller and, therefore, I will not give the benefit of this payment to the appellant and I will consider at this stage that payment had been made in respect of arrears which were due upto 30th November, 1981.

However, there is admittedly a payment of Rs. 200 made by the appellant against Receipt No. 42047 but this payment had been made in Miscellaneous Rent Case No. 1462 of 1980 and not in the relevant Application No. 5393 of 1978. Similarly there is a payment made by the appellant against receipt No. 47968 on 4‑I‑1982. These payments are not denied by the respondent but the contention of Mr. Siddiqui is that the amount deposited on 5‑12‑1981 was for the month of October, 1981 while amount deposited on 4‑1‑1982 was for the month of November, 1981 and that the payment for the month of December, 1981 had actually been made on 4‑2‑1982 and not by 10th of January, 1982. by which date this amount of Rs. 200 should have been paid. Mr. Siddiqui's contention is that it is only amounts which have been deposited in the relevant Rent Case No. 5393 of 1978 which alone can be taken into consideration and that the amounts deposited in Misc. Rent Case No. 1462 of 1980 cannot be taken into consideration for this purpose. I fail to see any force in this submission. It is an admitted position that the learned Controller has taken into consideration the amounts which have been deposited either in Rent Case No. 5393 of 1978 or amount deposited in Miscellaneous Rent Case No. 1462 of 1980. And in my view he has rightly done so as no narrow view of technicalities should be taken.

The admitted position, therefore, is that the appellant has paid Rs. 200 in the Court on 5‑12‑1981 and since this payment has been made after 30^th of November, 1981 when the rent order had been passed, therefore, this amount of Rs. 200 has to be counted as a payment having been made under the direction of the Court for deposit of current and future rents, therefore, the amount of Rs. 200 paid on 5‑12‑1981 cannot but be treated as the rent of November, 1981. Similarly the amount of Rs. 200 deposited on 4‑1‑1982 has to be treated as the rent for the month of December, 1981. Thereafter I find that there is a payment of Rs. 200 in each succeeding calendar months of February, March, April, May, June, July and August, 1982. There does not appear to be any arrears and hence the order for striking off defence of the appellant was not justified in view of the payments made by the appellant after 3uth November, 1981, and the same is hereby set aside. The case is now sent back to the Rent Controller for the decision of the ejectment C application on merits. I must make it clear however, that while computing the payments I have only taken into consideration the payment made by the appellant after 30th November, 1981 and, therefore, the Rent Controller will be entitled to go into the question whether there has been any default in the payment of rent before 30th November, 1981. The file will be sent back to the same trial Court namely 12th Senior Civil Judge and Rent Controller, Karachi, within next month and the parties before me are directed to appear before the same Civil Judge on 17th July, 1983. The learned Civil Judge will dispose of the ejectment application within four months of the first hearing.

M B. A. Case remanded.

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