Find a Lawyer

First Rent Appeal No. 467 of 1984, decided on 2nd November 1985.

‑‑‑Ss. 16(2) s 21(1)‑‑Striking off defence‑‑Statement of account clearly showed .that tenant had been depositing rent in time in compliance with tentative rent order‑‑There being no default on behalf of tenant, Rent Controller failed to take notice of such deposit‑‑Order of Rent Controller striking off defence of tenant, held, would not be sustainable in circumstances.

Kewairam Dav Shahani v. Nawabali P L D 1978 Kar. 79 ref.

Shayamdas for Appellant.

Mirza Muhammad Kazim for Respondent.

Date of hearing: 27th October, 1985.

The application for the,, eviction of the appellant was filed by the respondent on the grounds of non‑payment of rent w.e.f. January, 1980 and personal bona fide requirement. The application was contested and it was stated by the appellant that he has been regularly depositing the rent in favour of the respondent /landlord. The learned Rent Controller on 15‑9‑1981 passed the order directing the appellant to deposit the arrears of rent as well as future monthly rent. The learned Rent Controller's order reads as under:‑

"Heard Mr. Mirza Muhammad Kazim, Advocate for the applicant and also presence the written statement of the opponent. The rate of the rent which is Rs. 200 per month is not denied. According to the rent is due against the opponent at the rate of Rs. 200 per month since January 1980. The opponent vides para. 8 of the written statement have stated that the rent of the premises in question was deposited in the Court. He has not mentioned the number of the Rent Case in which he was depositing the rent and the period from which ha has started depositing the rent in the Court.

In view of the above facts, I direct the Nazir of the Court the arrears of the rent of the rate of Rs. 200 per month (two hundred) from January, 1980 to August, 1981, on or before 21‑11‑1981. The opponent shall be entitled to the adjustment of rent if already deposited by him in the Court in respect of same premises and in this name of applicant.

I further direct the opponent to deposit future rent commencing from September, 1981 on or before 10th of each succeeding month. Put off to 2‑12‑1981 for applicant evidence."

It appears that an application for striking off the defence was moved by the respondent, it was alleged that the appellant had committed default in deposit of monthly rent pertaining to December, 1981 which was to be deposited on or before 10th January, 1982 but it was deposited on 7-2‑1982 along with the rent of January, 1982. The learned Rent Controller rejected this application on the ground that the appellant deposited the rent of December, 1981 on 7‑1‑1982 in Miscellaneous Rent Application No. 2432/80. Subsequently, another application for striking off the defence of the appellant was moved by the respondent on the ground that he failed to deposit the rent for the months of October and November, 1982 by the 10th of November and December, 7.982 and also rent for the months of January, 1983 and July, 1983 were deposited in time and in violation the rent order of the Court. The statement of the account has been filed by the appellant, which clears the position that the appellant was regularly depositing the rent in advance. The first deposit of rent was made on 7th October, 1981 that was for the month of October and it shows that the rent was deposited in time. The appellant has deposited the rent in Miscellaneous Rent Case on 8‑11‑1982 with the Nazir of civil Court which was not considered by the Rent Controller. The amount of Rs. 4,400 was deposited by the

appellant and I have calculated the amount.

The learned counsel for the respondent has referred to para. 4 of the memo. of appeal wherein he has stated that the appellant has deposited the rent for the month of December, 1981 in Miscellaneous Rent Application No. 2432/80 on 7‑1‑1982. It is the case of the appellant that rent for the months of December, 1982 and January, 1983 was deposited in time. The contention of the appellant that he deposited the rent in advance is supported by the statement of account. The controversy has arisen due to the fact that appellant deposited rent on two occasions in Miscellaneous Rent Application under the orders of the Controller. The rent used to be deposited before the application for eviction was filed. The rent was deposited in favour bf the respondent/landlord. The learned Rent Controller rejected the first application of the landlord as the appellant has deposited in Miscellaneous Application. The Rent Controller failed to take notice of the fact that the appellant had deposited the rent in time for which his defence was struck off. The total amount has been deposited by the appellant in time and thus there was no default. The learned counsel for the respondent ha referred to case of Kewalram Dav Shahani v. Nawabali reported in PLD 1978 Kar. 79 but this authority does not apply to the facts of the case as the appellant complied with the order of the Rent Controller.

In these circumstances, the appeal is accepted. The order, date 25‑2‑1984 whereby the defence of the appellant was struck off is set aside and case is remanded for trial.

H.B.T. ‑‑‑‑‑ Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.