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First Rent Appeal No. 107 of 1983, decided on 19th December, 1983.

‑‑ Ss. 16 (2) & 21‑Tentative rent order by Rent Controller‑Tenant defaulting only for one month‑‑On application of landlord to strike off defence of tenant Rent Controller ordering that "order on this application would be passed after evidence on both sides alongwith final order''‑Evidence on behalf of parties recorded and when only cross‑examination of tenant left, landlord still filing another application for striking off defence‑Rent Controller agreeing to this application and striking off defence of tenant‑Held, since there was no illegality in order of Rent Controller passed on first application for striking off defence he should have waited for conclusion of cross‑examination of tenant and should have decided application for striking off defence after entire evidence recorded‑Defence of tenant could not be struck off at that stage when only cross‑examination of tenant left over‑---Order of Rent Controller set aside and case remanded for deciding application of landlord for striking off defence after evidence of parties concluded.

A. Q. Malik for Appellant.

Akram Zuberi for Respondent.

Date of hearing : 19th December, 1983.

Rent Case No. 558/79 was filed by the respondent/landlord for the ejectment of the appellant/tenant from the flat in question. The admitted monthly rent of the permises is Rs. 250. The tentative rent order, dated 1‑8‑1979 was passed and the same is reproduced here :‑‑

"1‑8‑1979. I pass his rent order tentatively and direct the opponent to deposit Rs. 2,000 being the arrears of rent from December, 1978 to July, 1979 at the rate of Rs. 250 p.m. in Court before 30th September, 1979.

The opponent will be entitled for the adjustment of the amount which he has paid in Miscellaneous Case No. 1056/79.

The applicant will not be entitled to withdraw Rs. 250 from the arrears of rent from the Court till further orders.

The opponent is further directed to deposit monthly rent at the same rate of Rs. 250 in Court before 15th of each succeeding month commencing from the month of August, 1979 and i.e. the rent of August, 1979 should be deposited before 15th September, 1979 and so on failing which his defence will be struck off. Put off to, 12‑9‑1979 for issues."

On 4‑12‑1979 an application under section 16 (2) of the 1979 Rent Ordinance was filed by the respondent on the ground that the appellant had not deposited rent for months of August and in support of the application was filed and a counter‑affidavit was also filed. The following order was passed by the Rent Controller on 15‑3‑1980 on this application:‑

"Heard, perused the record. The order on this application will be passed after the evidence of both the sides, alongwith final order."

Thereafter evidence on behalf of the respondent was recorded and then the affidavit in evidence of the appellant was filed but before he was cross-examined, the respondent filed an application under section 16 (2) of the 1979 Rent Ordinance on 24‑2‑1982. This was opposed by the appellant. By the impugned order, dated 13‑1‑1983 passed by the Rent Controller, this application under section 16 (2) was allowed and the defence of the appellant was struck off. The appellant has filed the present First Rent Appeal challenging the ejectment order, dated 13‑1‑1983. I have heard Mr. A. Q. Malik, learned counsel for the appellant and Mr. Akram Zuberi, learned counsel for the respondent.

2. The record including the report of the Nazir of the civil Court and a receipt, dated 13‑10‑1979 shown by the learned counsel for the appellant makes it clear that at the time the first application under section 16 (2) was filed, there was at best a default in the deposit of rent for the month of August, 1979. As observed earlier, on this first application, after hearing the learned counsel for the parties and after perusing the record, the Rent Controller ordered that he will pass the order on this application after the evidence of the parties had been recorded. On the first application, the grievance of the respondent, therefore, was that the rent for August, 1979 has not been) deposited. It has also been noted that after the aforesaid order, dated 15‑3‑1980 of the Rent Controller, the entire evidence on behalf of the respondent has been recorded and in fact the appellant had filed his affidavit in evidence and only his cross‑examination had to take place whereafter the Rent Controller would have decided the first application under section 16 (2) of the 1979 Rent Ordinance. After a perusal of the record, the case of the respondent in the second appeal under section 16 (2) of the 1979 Ordinance also is the same that is that rent for the month of the August, 1979 had not been deposited by the appellant. I, therefore, do not find any defence in the two applications moved by the respondent under section 16 (2). In my view, in the facts and circumstances of this case, the Rent Controller should have waited for the cross‑examination of the appellant for conclusion of the cross‑examination of the appellant and then decided the first or the second applications under section 16 (2) of the 1979 Rent Ordinance, in view of the earlier order, dated 15‑3‑1980 passed by the Rent Controller on the first application under section 16 (2). In the facts of this case I find no illegality in the order, dated 15‑3‑1980 passed by the Rent Controller and as observed earlier, in view of the order, dated 15‑3‑1980, most of the evidence having been recorded, the Rent Controller should have decided the application under section 16 (2) after the entire evidence had been recorded.) The evidence of the appellant should not have been struck off at this stage.

As a result F. R. A. No. 107/83, the order dated 13‑1‑1.983 of the Rent Controller is set aside. The Rent Controller is directed to decide both the applications under section 16 (2) filed by the respondent after the evidence of the parties has been concluded. It is further directed that the matter should have disposed off by the Rent Controller at an early date, There will be no order as to costs.

M. Y. H. Appeal partly accepted.

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