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Civil Petition No. K‑602 of 1984, decided on 2nd July, 1985.

(On appeal from the judgment and order of the High Court of Sind at Karachi, dated 8‑10‑1984 passed in First Rent Appeal No. 632 of 1983).

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.16(1)‑‑Non‑compliance with order to deposit rent‑‑Striking off defence and ejectment‑‑High Court, in appeal coming to conclusion that deposit order suffered from patent contradiction and remanded case for retrial‑ Order impugned‑‑Finding of Rent Controller being contradictory and default in payment of rent being merely technical, impugned order, held, was not open to question‑‑Leave to appeal refused.

Muhammad Bashir v. Mst. Mubina Begum Civil Petition for Special Leave to Appeal No. K‑484 of 1983 distinguished.

Badrudaja Khan, Advocate Supreme Court assisted by Nazir Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing: 2nd July, 1985.

In an application for ejectment under section 15 of the Sind Rented Premises Ordinance, 1979, by the petitioner against the respondents, the learned Rent Controller passed the following order, dated 27‑7‑1983 under section 16(1) of the said Ordinance:‑

"The applicant claims the rent at the rate of Rs.59 being the latest assessment for November, 1977. And whereas according to the opponents, the rate of rent is Rs.35 and they have been depositing the same at the said rate in Miscellaneous Rent Case No. 1600/75 and have deposited upto December, 1982. In support of this, photo copies of rent receipt issued by the premises owner Mst. Sardar Begum, two money orders sent by the tenants to Sardar Begum in June 1974 at the rate of Rs.35 and Miscellaneous Rent Application whereby the rent was deposited at the rate of Rs.35. The applicant has relied on P.T.I. issued by the Excise and Taxation Department, dated 18‑4‑1968.

Admittedly the opponent had been paying the rent to the landlord at the rate of Rs.35 per month as indicated from the receipts. Therefore, in my opinion the applicants cannot claim the rent as per latest assessment without obtaining the order from the Rent Controller concerned. As such, the opponents are directed to deposit the current and future monthly rent at the rate of Rs.35 per month, in this case and in this Court on or before 10th of each succeeding calendar month with regard to arrears of rent, the opponents are allowed to withdraw the amount deposited in Miscellaneous Rent Case at the rate of Rs.35 and deposit the same in this case from November 1977 till February, 1983 amounting to Rs.2,240 on or before 10th of May, 1983."

The petitioner subsequently made an application under section 16(2) of the Ordinance praying that the defence of the respondents be struck off and they be ordered to be ejected as they had failed to comply with the order for deposit of rent. The respondents resisted this application and contended that they were regularly depositing the rent in the Miscellaneous Rent Case with the last payment made on 22‑12‑1982 amounting to Rs.210 in respect of rent upto June, 1983. As regards the withdrawal of rent from the Miscellaneous Rent Case, their plea was that the amount could not be withdrawn as the concerned Court had informed them that only the landlord can withdraw the rent once it is deposited in Court. The learned Rent Controller not being satisfied with the explanation of the respondents, by his order, dated 7‑8‑1983 struck off the defence of the respondents and ordered their eviction. In appeal a learned Single Judge of the Sind High Court by his judgment, dated 8‑10‑1984 held that as the Rent Controller had accepted the respondents case that arrears of rent were paid upto June, 1983 the Rent Controller was not justified in directing the deposit of future rent from March, 1983 and that the correct order should have been passed for deposit of rent from July, 1983. He, therefore, came to the conclusion that the deposit order suffered from a patent contradiction. As to the question of withdrawal of rent deposited in the Miscellaneous Rent Case, the learned Judge observed that this was only a technical ground and that the Rent Controller ought to have directed the transfer of the amount in the Miscellaneous case account to the account of the ejectment case. In this view of the matter the learned Single Judge allowed the appeal and remanded the case to the Rent Controller for trial after passing an appropriate order in the light of the judgment of the High Court.

2. In support of this petition for leave to appeal from the judgment of the High Court on behalf of the landlord Mr. Badrudaja Khan, Advocate contended that the respondents had failed to comply with the order for the deposit of rent and were rightly ordered to be evicted. He submitted that it was for the respondents to have taken appropriate steps for' withdrawal of the amount of rent arrears deposited in the Miscellaneous Rent Case and deposit the same in the account of the ejectment case within specified time. Reliance was placed by the learned counsel on an unreported judgment of this Court in Civil Petition for Special Leave to Appeal No. K‑484 of 1983 Muhammad Bashir v. Mst. Mubina Begum.

3. After hearing the learned counsel at some length we are, however, unable to find force in his submissions. The learned counsel was unable to satisfy us that the findings of the learned Judge in the High Court that the Rent Controller's order under section 16(1) of the Ordinance was contradictory to his own conclusion so far as the period of the arrears of rent was concerned, was erroneous. As to the question of withdrawal of the amount deposited in the Miscellaneous Rent Case, the view taken by the learned Single Judge that the amount deposited in the name of the landlord in such account was sufficient evidence of payment for the period in question and that the default, if any, was merely technical, seems to us not open to question. The reliance on the case of Muhammad Bashir is inapt as the facts there were clearly distinguishable. In that case the tenant was claiming credit for amounts paid in the name of the landlady's husband in another Miscellaneous proceedings, while in the present case admittedly the amount was paid in the name of the landlord himself.

4. In the result there is no merit in this petition which is accordingly dismissed.

M. I. Petition dismissed.

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