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Civil Petition for Leave to Appeal No. 419‑K of 1985, decided on 9th March, 1986.

(On appeal from the judgment of the High Court of Sind, dated 18‑9‑1985 in R.F.A. No. 591 of 1984)

‑‑‑Art. 185(3)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.16(1) (2)‑‑Striking off defence‑‑Tenant failing to comply with direction of Rent Controller regarding deposit of rent and High Court for good reasons finding tenant negligent in prosecuting his defence‑‑Rent Controller, held, was justified in striking off defence of tenant in circumstances‑‑Case found not fit for grant of leave to appeal‑‑Leave refused.

Maroof Ali Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 9th March, 1986.

The petitioner who was tenant of the respondent in occupation of a shop, was directed under section 16(1) of the Sind Rented Premises Ordinance, 1979, to deposit arrears of rent within two months and future rents before 10th of every calendar month. The petitioner did not deposit the rents as directed, as according to him he was depositing the rents regularly in Rent Miscellaneous Application No. 4180 81 since August, 1981. In the events that happened, the landlord submitted an application under section 16(2) of the Sind Rented Premises Ordinance for striking off the defence of the petitioner on the ground that he had failed to deposit the rents in terms of the order earlier passed by the Rent Controller. As no objection was filed against the aforesaid application, the Rent Controller struck off the defence of the petitioner and directed him to hand over possession of the disputed shop to the landlord by his order, dated 26th April, 1984.

2. In appeal before the Sind High Court the petitioner contended that he had committed no default of the tentative rent deposit order, in so far as he had continuously deposited rent in the miscellaneous proceedings up to the date of the order striking off his defence. His plea was that the Advocate engaged by him had died and he had engaged another Advocate to represent him, who had no knowledge of the proceedings, with the result that the petitioner had no notice of the passing of the tentative rent order or the application for striking off his defence. In view of this plea the learned Judge in the High Court examined Mr. Zafar Javed, Advocate subsequently engaged by the petitioner. In his statement Mr. Zafar Javed stated that he had directed the petitioner to bring the papers and receipts of rent deposited by him but the petitioner failed to do so in time before the passing of the final order by the Rent Controller. The learned Single Judge upon examining the material on record found that notice of the application for striking off defence had been received by Mr. Zafar Javed after he was engaged and, therefore, came to the conclusion that the petitioner was negligent in prosecuting his case by not furnishing his counsel with the relevant information regarding the deposit of rent. As no particulars of the account number or receipts of the miscellaneous proceedings were produced before the learned Rent Controller, the learned Single Judge felt that the latter was justified in passing the order of ejectment. Additionally the learned Judge came to the conclusion that as the premises were admittedly demolished by the landlord after obtaining possession from the petitioner by means of execution of the order of ejectment, no useful purpose would be served to relieve to the petitioner of what he described as technical default committed by him. Accordingly the petitioner's appeal was dismissed by the learned Single Judge by his order, dated 18th September, 1985.

3. In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application. The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the orders by depositing the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sind Rented Premises Ordinance.

4. Learned counsel also' argued that the High Court was not justified in refusing relief to the petitioner on the ground that the building of the premises was demolished. His contention was that demolition of the demised premises does not terminate the tenancy. In the circumstances of this case we find no force in this contention for the reason that the appeal of the petitioner was not dismissed on the basis of demolition of the building only, but this fact was taken into consideration in the context of petitioner's plea that the non‑compliance of the tentative rent order was technical in so far as the rents were being deposited in the miscellaneous proceedings. Learned counsel wanted us to hold that the building has not been completely demolished but we are not inclined to undertake a factual inquiry at this stage.

5. For all these reasons this is not a fit case for grant of leave and accordingly the petition is dismissed.

M.Y.H. Leave refused

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