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First Rent Appeal No. 524 of 1985, decided on 13th April, 1986.

‑‑S. 16(1) & (2)‑‑Non‑compliance of tentative order of Rent Controller‑‑Defence of tenant struck off on application of landlord for such nor.‑compliance‑‑Tenant's plea of non‑supply of copy of application moved by landlord under S. 16(1)‑‑Order of Court whereby defence of tenant was struck off silent about factum of supply of copy‑ Contradictory statements of counsel of parties creating doubt as to whether copy of application had been supplied to counsel of tenant or not‑‑Such doubt about supply/non‑supply of copy was required to be resolved by Rent Controller before disposal of application under S. 16(2) as admittedly no notice through bailiff had been served upon appellants or their counsel about application under S. 16(1).

‑‑Ss. 16(1), (2) & 21‑‑Appellate jurisdiction of High Court under Ordinance exercise of‑‑Where factum of supply of copy of application by landlord for passing of rent order under S. 16(1) against tenant was doubtful, High Court in its appellate jurisdiction under Ordinance remanded case to Rent Controller with direction that treating application by landlord for striking off defence of tenant as pending same should be decided after holding enquiry whether copy of application under S. 16(1) had been supplied to tenant or not‑‑Rent Controller was also directed to dispose of case within specified time‑‑Notices after remand were directed to be issued to parties through their counsel.

Abdul Waheed Kanju for Appellants.

Kamaluddin for Respondent.

Date of hearing: 13th April, 1.986.

In the rent case filed by the respondent in respect of the shop in question, on ‑the application under section 16(1) of the 1979 Rent Ordinance, a rent order, dated 28‑4‑1984 was passed by the Rent Controller directing arrears of rent for 22 months from duly, 1982 to April, 1984, at the admitted rate of rent i.e. Rs.50 per month totalling amounting to Rs.1,100, to be deposited within one month and future monthly rent w.e.f. May, 1984, to be deposited on or before 10th of each succeeding month. By the rent order adjustment was granted in respect of the rent already deposited in a miscellaneous rent case by the appellants/ tenants. An application under section 16(2) was filed on account of the default in the compliance of this order and objections were filed on behalf of the appellants, in which two points were raised, namely, that no notice of the application under section 16(1) was served upon the appellants and as such the appellants were not aware of the passing and existence of the rent order, dated 28‑4‑1984 and secondly, that the appellants were voluntarily depositing rent in miscellaneous rent case and there was no default. By the impugned order, dated 2‑9‑1985, the Rent Controller allowed the application under section 16(2), struck off defence of the appellants and ordered their ejectment. Hence the present appeal. I have heard Mr. Abdul Waheed Kanju, learned counsel for the appellants and Mr. Kamaluddin, learned counsel for the respondent.

2. There is an admitted default on the part of the appellants but the main contention of the learned counsel for the appellants was that neither the appellants nor their Advocate who was appearing before the Rent Controller, Mr. Khawaja Navid Ahmed, Advocate, had any knowledge of the filing of the application under section 16(1) of the rent order, dated 28‑4‑1984 and this contention is reflected in the objections filed against the application under section 16(2) filed on behalf of the appellants. As observed earlier, there is an admitted default but in so far as the objection about the non‑service of the notice of the application under section 16(1) is concerned, the impugned order, dated 2‑9‑1985 is silent. Mr. Kamaluddin, learned counsel for the respondent, had referred me to the record of the Rent Controller which is before me. He has shown me an endorsement on the application under section 16(1) , dated 15‑4‑1984 on the left hand side which shows "Received" written and there is an initial of some one underneath and date "15/4" written. Mr. Abdul Waheed Kanju states, on instructions, that the person, who has initialled the aforesaid endorsement having received a copy of the application under section 16(1) is definitely not Mr. Khawaja Navid Ahmed and further that the initials also are not of any of the juniors working with Mr. Khawaja Navid Ahmed at that time. Mr. Kamaluddin, learned counsel for the respondent, however, states that he had himself supplied a copy of the application to some junior of Mr. Khawaja Navid Ahmed, but he does not remember who was that junior. A doubt had been created as to whether a copy of the application had been supplied to the learned counsel for the appellants A and this doubt should have been resolved by the Rent Controller before he disposed of the application under section 16(2), as admittedly no notice through bailiff had been served upon the appellants or their Advocate of the application under section 16(1).

The impugned order, dated 2‑9‑1985 is accordingly set aside, with no order as to costs. The case is remanded to the Rent Controller for decision in accordance with law. The application under section 16(2) , dated 15‑4‑1984 will be deemed to be pending before the Rent Controller, who will, if the respondent desires, decide the said application after holding an enquiry as to whether copy of the application under section 16(1) had been supplied to the other side. It has already been noted that there is an admitted default in so far as the rent order is concerned. It is further directed that the rent case should be disposed of finally B by 30‑9‑1986.

The Rent Controller, to whom this case will go, will send notices of the case on remand to the parties through the two learned counsel, who have appeared before me today. To be more specific, notice after remand to the appellants/ tenants will be served through Mr. Abdul Waheed Kanju, Advocate, 105, Lawyers Chambers, M.A. Jinnah Road, Karachi, and the notice upon the respondent /landlord will be served through Mr. Kamaluddin, Advocate, 10/4, Rimpa Plaza, M.A. Jinnahl Road, Karachi.

A. A. Case remanded.

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