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First Rent Appeal No. 248 of 1986, decided on 9th December, 1986.

---Ss.15, 16(1)(2) & 21(1)--Ejectment proceedings--Striking off defence--Order of--Copy of statement of rent annexed by tenant to memo. of appeal showing without rebuttal that tentative rent order pertaining to specified period had fully been complied with by tenant without committing any default or irregularity in depositing rent Order of Rent Controller for striking off defence of .tenant was set aside by Appellate Court with direction to Rent Controller to proceed further in accordance with law.

S. Tahir Ali for Appellant.

Rafiullah Khan for Respondent.

Date of hearing: 9th December, 1986.

This First Rent Appeal is directed against the order dated 3-4-1986 passed by the IIIrd Senior Civil Judge (West) Karachi, whereby he allowed the application under section 16(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) and the defence of the appellant was struck off.

The facts leading to the filing of the above appeal are that the respondent is the owner of the house No. 3/3, IV-B, Nazimabad, Karachi and the appellant is the tenant of the respondent in respect of the said house at the monthly rental of Rs. 1500 excluding water, Sui gas and power consumption charges. The respondent filed an eviction application No. 2051 of 1984 (new No. 15 of 1985) against the appellant on the ground of default and personal requirement. The appellant filed written statement and resisted the application.

During the pendency of the eviction application the respondent filed an application under Section 16(1) of the Ordinance. The learned Controller by his order dated 5-3-1985 directed the appellant to deposit the rent into Court with effect from 1st December 1982 to 28th February 1985 within three months from the date of the order. The appellant was also directed to deposit future monthly rent with effect from 1-3-1985 onward on or before 10th of every succeeding month.

The respondent filed application under section 16(2) of the Ordinance stating therein that the appellant committed default and had not deposited the arrears of rent for the months of September, December 1982, January and March 1983 amounting to Rs. 6,000. He prayed that the defence of the appellant be struck off. The appellant filed objections to the application and denied the allegations made therein.

The learned Controller after hearing the arguments of the learned counsel for the parties allowed the application vide order dated 3-4-1986 and directed the appellant to handover the vacant possession of the premises in question to the respondent within a period of 90 days from the date of the order.

The appellant being aggrieved against the order dated 3-4-1986 has filed this First Rent Appeal on the grounds mentioned in the Memo of Appeal.

Mr. S. Tahir Ali learned counsel for the appellant has contended that the appellant has not committed any default in deposit of rent and has complied with the order of the learned Rent Controller.

On the other hand Mr. M. Rafiullah Khan for the respondent has submitted that the appellant has committed default and the order is in accordance with law.

I have heard the learned counsel for the parties and have perused the statement of account, the impugned order and the Nazir's report.

It is an admitted position that the learned Rent Controller by his order dated 5-3-1985 directed the appellant to deposit rent with effect from 1st December 1982 to 28th February 1985 within 3 months from the date of the order. It is advantageous to reproduce the concluding portion of the order which reads as under:-

"The Opponent is entitled to the adjustment of rent to this case if already deposited by him in his Misc. Rent Application.

The appellant annexed copy of statement of rent to the Memo of Appeal. A perusal thereof shows that a sum of Rs. 40,500 was deposited by him between the period 23-1-1983 upto 10-3-1985. The tentative rent order also shows that the appellant had to deposit rent for 27 months (with effect from 1-12-1982 to 28-2-1985). This position is not denied by the learned counsel for the respondent. Learned counsel for the respondent has submitted that the appellant committed default in deposit of rent for the months of September, December, 1982 and January and March 1983. I do not find any force in this submission. The tentative rent order pertains to the period commencing from 1st December 1982 and the appellant deposited rent for December 1982 and January 1983 on 3-1-1983. A perusal of Nazir's report also shows that the appellant deposited Rs. 3,000 on 23-1-1983. The tenant has deposited all the arrears. There was no irregularity in making the deposit. Therefore the order of the Controller directing t[wt the defence be deemed to be struck off is set aside.

This appeal is allowed accordingly and the matter is remitted to the Controller to proceed with the case from the stage where the defence of the present appellant was struck off. The defence will be treated as part of the proceeding and the case shall be proceeded with accordingly.

Both the learned counsel state at the bar that the respondent has already filed affidavit-in-evidence. Both the counsel state that the case be fixed for appearance of, parties on 13-1-1987 before the learned Controller. It is ordered accordingly. No further notices will be issued to the parties for this date of hearing. The R & P of the case be remitted to the Court of IIIrd Senior Civil Judge/Rent Controller, District West, Karachi forthwith. I leave the parties to bear their respective costs.

H.B.T./M-130/K Appeal allowed.

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