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First Rent Appeal No. 1011 of 1984, decided on 22nd October, 1986.

‑‑‑Ss. 15 & 16(1)‑‑Order to deposit arrears of rent and future rent‑ Object of‑‑Ordinance being protector of interests of both landlord and tenant, object underlying under S.16(1), held, was to spare landlord from lengthy and expensive course of instituting separate suit for recovery of arrears of rent and future rent and allow tenant to pay rent during pendency of rent case.

‑‑‑Ss. 15 & 16(1)(2)‑‑Order to deposit arrears of rent and future rent‑‑Non‑compliance of‑‑Effect‑‑Compliance of order passed under S.16(1) being condition precedent for taking into consideration defence of tenant any question raised in defence by tenant, held, could only be determined by Rent Controller if order was fully complied with by tenant‑‑In case tenant had committed breach of his liability to deposit rent due and to pay rent accordingly during pendency of eviction application, landlord would surely be compensated with possession of premises in question.

‑‑‑Ss. 15 & 16(1)(2)‑‑Striking off defence‑‑Application for‑‑Tenant admittedly failed to deposit arrears of rent and future rent, during pendency of eviction application after tentative rent order was passed by Rent Controller‑‑No fault, held, could be found with application of landlord for striking off defence on ground of non‑compliance of tentative order.

‑‑‑Ss. 15, 16(1)(2) & 21‑‑Negligence of counsel‑‑Effect‑‑Tenant's plea that he failed to deposit rent in accordance with tentative rent order, due to negligence of his counsel who did not inform him about passing of tentative rent order‑‑Tenant, held, could not escape consequences of such negligence‑‑Tenant acting through his counsel, could not plead ignorance of manner of conduct of case by his counsel particularly when such tenant had not sought any remedy against such counsel.‑ [Counsel and client].

Javed and Riaz for Appellant.

Muhammad Ali Jan for Respondent.

Date of hearing: 1st September, 1986.

This first rent appeal is directed against the order, dated 25‑9‑1984 passed by the XVIth Rent Controller, Karachi, whereby the defence of the appellant was struck off and he was directed to hand over vacant possession of the premises in question within one month from the date of the order.

The facts leading to the filing of the appeal are that the appellant acquired on rent from the respondent two shops bearing Nos. 2 and 3 on ground floor of a commercial building bearing No. 36/E, ('E' Market), Block 6, P.E.C.H.S. Karachi, under a tenancy agreement for running a hotel at the monthly rental of Rs.1,000. The respondent filed Eviction Application No. 629 of 1983 on the ground of default in payment of rent from 1‑9‑1982 and also on the grounds of additions/ alterations/ impairing the value and utility of the premises.

During the pendency of the eviction application the respondent filed an application under section 16(1) of the Sind Rented Premises Ordinance 1979 stating therein that the appellant failed to pay rent from 1‑9‑1982 to 30‑4‑1983. The appellant filed objections to the application under section 16(1) and stated therein that he was depositing rent in Miscellaneous Case No. 1033 of 1981. The appellant was directed to produce the receipts of rent deposited by him in the Miscellaneous Rent Case but he did not produce any receipt. It seems that the learned Rent Controller by his order, dated 2‑5‑1984 directed the appellant to deposit arrears of rent from 1‑9‑1982 to 30‑4‑1984 amounting to Rs.20, 000 before 31st May, 1984. The appellant was further directed to deposit future rent before 10th of each succeeding calendar month till final disposal of the case. It is advantageous to reproduce the concluding para. of the order which reads as under:‑

"If the opponent has deposited any amount in Court in this case, through M.R.C. that amount shall be adjusted towards the above arrears and balance of arrears shall be deposited by the opponent in the Court."

The respondent filed application under section 16(2) of the Sind Rented Premises Ordinance, 1979, praying that the defence of the appellant be struck off. The appellant filed reply to the application stating therein that the appellant has been depositing rent in Miscellaneous Rent Case No. 3393 of 1981 and deposited much more than the arrears of rent.

The learned Controller after hearing the arguments of the learned counsel for the parties allowed the application vide his order, dated 25‑9‑1984.

The appellant being aggrieved against the order, dated 25‑9‑1984 of the XVIth Rent Controller, Karachi, has referred this first rent appeal on the grounds mentioned in the memo of appeal.

Mr. Iftikhar Javed, the learned counsel for the appellant has contended that the non‑deposit of rent in the Miscellaneous Rent Case No. 629 of 1983, after passing of the tentative rent order was neither deliberate nor intentional and the appellant did not commit default.

On the other hand Mr. Muhammad Ali Jan, the learned counsel for the respondent has submitted that if the tenant failed to comply with the tentative order as contemplated by the provisions of section 16(1) of the Ordinance and once a default is committed, the defence of the tenant is liable to be struck off.

The object underlying under section 16(1) is two‑fold that the l applicant /landlord who makes an application for a direction for arrears of rent should be spared the lengthy and expensive course of instituting a separate suit for the recovery of arrears of rent and the future rent should also be deposited till the final disposal of the case. The order in regard to payment of arrears of rent during the pendency of the application would be for the benefit of the tenant. The Ordinance protects the interests of the landlords and tenants. The landlord is assured to be compensated with the possession of the premises in question if the tenant commits breach of his liability to pay rent during the pendency of the eviction application. It is a condition precedent for the defence of the tenant to be taken into consideration, that the tenant should deposit the rent due from him as ordered by the Controller and it is only when this condition is complied with that the Controller can determine the question raised in defence.

The learned counsel for the appellant has contended that the default on the part of the appellant was not wilful as the appellant had been depositing rent in Miscellaneous Rent Case No. 629 of 1983 in good faith and had actually deposited advance rent. His contention is that the appellant had deposited Rs.25,000 in miscellaneous rent case before the passing of the tentative order.

There is no force in this contention. It cannot be denied that the appellant was required to deposit the arrears of rent and the future rent, during the pendency of the eviction application, after the tentative rent order, dated 2‑5‑1984 in the account of the Rent Case No. 629 of 1983, no fault can, therefore, be found with the application of the respondent for striking off the defence on the ground of non compliance of the tentative order. It was for the appellant to produce proof in support of his plea that he had regularly deposited rent, in terms of the order in Rent Case No. 629 of 1983, even if this was regarded only as a technical non‑compliance. His persistent defence was that he had complied with the order of deposit. The appellant offered a belated explanation that his Advocate did not inform him that an order for deposit of rent had been passed and had been depositing rent in his own account that is Miscellaneous Rent Application No. 3393 of 1981. The explanation was rejected by the Controller in the following words: ‑

"As per the tentative rent order passed on 2‑5‑1984, enough opportunity was afforded to the respondent and his counsel to produce any rent receipts which have miserably failed. As the respondent has obviously failed to deposit the arrears and the monthly rent in compliance with the order, he is liable to be struck his defence off. In fact an allowance was given to the respondent as per the last paragraph of the order, dated 2‑5‑1984, that in case the opponent has deposited any amount in Court in this case through M.R.C. that amount shall be adjusted towards the above arrears and the balance of arrears shall be deposited by the opponent in Court. The respondent failed to comply with the order by depositing the arrears and the future monthly rent in this Court. As such he is liable that his defence be struck off."

Mr. Iftikhar has contended that the appellant should not be allowed to suffer on account of the negligence of his Advocate and that the previous Advocate was responsible for the appellant failure to deposit rent, the appellant could not be said to have committed default within the meaning of section 16(1) of the said Ordinance. I am not able to accept this contention. The appellant was acting through his Advocate. He cannot plead ignorance of manner of the conduct of the case by him. If his Advocate had not informed him of the proceedings or the passing of the tentative order and he had grievance against his previous Advocate he would have sought his remedy against him. The appellant would not escape the consequences of the negligence of the counsel. The appellant had not explained the reason for the non‑compliance of the order.

In the result this appeal fails and is accordingly dismissed. I direct the appellant to hand over vacant possession of the shops in his possession to the respondent within six months of the date of this judgment subject to regular deposit of rent as ordered by the Controller. However, I leave the parties to bear their own costs.

H . B . T . Appeal dismissed.

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