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First Rent Appeal No. 746 of 1984, decided on 7th May, 1985.

---Ss. 16(2) & 21--Striking off defence--Tenant failing to comply with tentative rent order due to negligence and carelessness on part of his Counsel who, after receiving money from tenant, had not deposited in Court--Affidavit filed by tenant in this regard supported by affidavit of counsel--Tenant, held, could not be made to suffer for negligence of his counsel--Order ejectment passed as a result of striking off defence of tenant set aside and case remanded to Rent Controller for decision on merits and according to law.

P L D 1983 Kar. 14; 1982 S C M R 1003; P L D 1985 Quetta 1; 1982 S C M R 88; 1981 C L C 17 and 1984 C L C 3102 ref.

S. Nasir Kazmi for Appellant.

Miss Surriya Qamar for Respondent.

Date of hearing: 28th April, 1985.

This First Rent Appeal has been filed against the order dated 18-7-1984 of XIV Senior Civil Judge and Rent Controller, Karachi whereby he has struck off the defence of the appellant under section 16(2) of the Sind Rented Premies Ordinance, 1979 and allowed the rent case and directed the appellant to hand over the vacant possession to the respondent.

The facts relevant to the filing of the rent case are that respondent is co-owner of building bearing No. N.P. 12/34 Daryalal Street, Karachi and appellant Barkat Ali is tenant in respect of one shop situated at ground floor in the said building at the monthly rent of Rs.175 p.m. payable in advance in the first week of every calendar month. The rent case was filed on 1-6-1983 on the ground of default in payment of rent and personal bona fide requirement.

The written statement was filed by the appellant and evidence of both the parties was recorded. The Rent Controller on 10-10-1983 passed a tentative rent order whereby the appellant was directed to deposit arrears of rent for March and April, 1983 at the rate of Rs. 175 p.m, on or before 10th of November, 1983 and deposit the rent of October on the 10th November, 1983 and continue to deposit future rent on or before 10th of each month. On 15-3-1984 respondent filed an application under section 16(2) of the Ordinance in which he has stated that appellant deposited the rent in Miscellaneous Rent Application No. 2413/83 from March, 1983 to November, 1983 thereafter he has not deposited the rent for the month of December, 1983 and January, 1984 and February, 1984 till the filing of this application. The objections were filed by the appellant in which it was stated that appellant gave an amount of Rs.1,225 being arrears of rent and future rent to his Advocate who is stated to have given money to his clerk who did not deposit the amount in Court. The Rent Controller did not accept this plea and came to the conclusion that the appellant has committed default.

Mr. Nazeer Kazmi, learned counsel for the appellant contended that appellant is a poorman and doing business and has never committed any default in payment of regular rent and he has actually paid the amount to his Advocate. He has argued that when appellant came to know he immediately deposited the arrears and future rent in Rent Miscellaneous Application before passing the eviction order. Mr. Nazeer Kazmi, learned counsel for the appellant has cited P L D 1983 Kar. 14 1982 S C M R 1003 and P L D 1985 Quetta 1.

Miss Surriya Qamar, Advocate, appearing for the respondent submitted that it is responsibility of the tenant to comply with the tentative rent order and he cannot take benefit of the negligence on the part of his Advocate. She has argued that applicant has deliberately not complied with the tentative rent order passed by the Rent Controller. She has referred to the cases reported in 1982 SCMR

88, 1981 CLC 17 and 1984 C L C 3102.

In this case it is very clear that the tentative rent order of the Rent Controller was not complied with, therefore, the defence of the appellant/tenant was struck off. Mr. Abdul Rashid Nizami, learned Adovcate has filed en affidavit in which he stated that he handed over money to his clerk who failed to deposit in the Court. In his affidavit the name of the clerk has not been disclosd nor it has been stated that when his clerk informed him that he had not deposited the money. The clerk of the Advocate has not been examined. Mr. Nizami's evidence can be brushed aside on only one ground that when he came to know that his clerk had not deposited the amount, he remained silent and did not care to deposit the amount. Not only this but Advocate had not informed his client that amount was not deposited. This is a case of not only negligence on the part of Advocate but carelessness.

In case of Kaley Khan v. Jamia Masjid Akse Jamil reported in 1982 SCMR

88, it has been held that negligence of Advocate and his client cannot take the person concerned out of relevant liability. In the above case on the date of hearing Advocate and petitioner were present. From the perusal of tentative rent order dated 10-10-1983 it appears that appellant was not present and Advocate might have informed him and got the money from him.

In case of Dhanjishaw Behramji Ghadially and others v. Abdul Latif Khan reported in 1983 S C M R 1003, the affidavit of Advocate was believed and ex parte decree was set aside.

In this case as stated above I am not inclined to rely on the affidavit of the Advocate but the affidavit filed by appellant that he gave money to his Advocate gets support from the affidavit of Mr. Nizami, Advocate.

I have considered all the aspects of the case and I have come to the conclusion that appellant has not been negligence and careless and he should not suffer due to the act done by the Advocate. Moreover when evidence of both the parties has been recorded and decision could be done on the merits of the case.

I, therefore, set aside the impugned order and remand the case to concerned Rent Controller. He should proceed with the rent case and to decide on merits and according to law.

M.Y.H. Case remanded.