Find a Lawyer

First Rent Appeal No.680 of 1983, decided on 4th December, 1985.

---S.16(1) & (2)--Defence, striking off--Payment of rent due outside the Court in settlement of dispute--Effect--Order for deposit of rent not complied with though landlord allegedly had been accepting rent out of Court for the default period in question--Held, settlement was only at a negotiating stage, receipt of payment was denied by landlord and payment allegedly was made beyond date fixed by Rent Controller, order passed under S.16(1) not interfered with in circumstances.

P L D 1963 Lah. 436 and P L D 1983 Quetta 36 ref.

S.M.Said for Appellant.

Ajeebullah Jaswal for Respondent.

The respondent filed an application for ejectment against the appellant in respect of premises bearing No.A-98, 'A' Block J, North Nazimabad, Karachi. After the written statement was filed the learned Controller on 31-7-1983 passed an order under Section 16(1) for deposit of rent. The appellant was directed to deposit the arrears at the rate of Rs.1,400 P.M. in Court from 14-10-1981 to 31-3-1982 amounting to Rs.7,794 on or before 10-5-1982. The appellant was further directed to deposit the future rent at the rate of Rs.1,400 P. M. from April 1982 on or before 10th of each succeeding month, the respondent filed an application under Section 16(2) of the Sind Rented Premises Ordinance 1979 dated 25-10-1982 alleging non -compliance of the order of deposit. It was alleged that rent for the months of July, August and September, 1982 has not been deposited in Court. The respondent prayed for striking off the defence of the appellant. A counter-affidavit was filed by the appellant in which it was alleged that from July the parties were negotiating a settlement and on 30-9-1982 the appellant has paid to the respondent Rs.8,400 towards the rent from July 1982 to December, 1982 under a receipt executed by the respondent. The respondent in his affidavit-in -rejoinder filed by the attorney of the respondent denied the alleged settlement between the parties and payment of rent for six months. The execution of the receipt has also been denied. Photo copy of the receipt has been filed alongwith the memo of the appeal. It bears signature of two witnesses namely Asif Khushnood and Qaisar Aziz. The learned Controller struck off the defence on the ground that payment out of Court did not afford any protection to the appellant from the penalty imposed under Section 16(2).

Mr.S.M.Said the learned Advocate for the appellant has assailed the order of the Controller mainly on the ground that in view of the facts alleged in the affidavits of parties it was necessary for the learned Controller to have given finding on issue whether the parties had settled the dispute or not. According to the learned counsel any payment made outside the Court in settlement of dispute and accepted by the landlord would exonerate him from the penalty contemplated by section 16(2). In this regard the learned counsel has placed reliance on P L D 1963 Lah. 436 end P L D 1983 Quetta 36. These authorities support the contention that where an order for deposit of rent has been passed but is not complied with as the landlord had accepted the rent out of Court for the period for which default is alleged, it will not amount to non-compliance of the order. In all these cases the landlord had accepted the rent out of Court.

A perusal of the record will show that both the parties were given proper opportunity to produce the evidence to prove the allegations made by the appellant. This is obvious from the order sheet of the Controller dated 7-6-1983, 11-6-1983, 18-7-1983 and 26-7-1983. Finally in the absence of the appellant and his counsel the matter was ordered for hearing of application on 30-7-1983. On that date also the appellant and his advocate did not appear and the learned Controller after hearing the' arguments passed the impugned order on 31-7-1983. It is thus clear that the appellant and the respondent were given opportunity to cross-examine the deponents who had filed their affidavits in support of their respective contentions. The parties did not avail all these opportunities and therefore none of them particularly the appellant can complain that the Controller did not afford proper opportunity to lead the evidence and substantiate his case. It is true that the Controller has not given any specific finding on the question whether the parties had settled the dispute between themselves. In fact the Controller seems to have been led away by the fact that the question is a disputed one and as the rent has not been deposited the defence should be struck off. Mr.Qureshi the learned counsel for the appellant contended that in this situation it is a fit case to be remanded for decision by the Controller after considering the affidavit of the parties. I would have been inclined to accept this contention provided the appellant had availed the opportunity afforded to him and produced himself for cross-examination or showed his readiness to produce the evidence including one of the witnesses who is a signatory to the receipt. If there is sufficient material on record on the basis of which an appellate Court can give its decision it is not necessary to remand the case. As opportunity had been afforded to the appellant which was not availed by him. I will take entire record into consideration for deciding his contention.

The main contention of the appellant is that he had settled the dispute with the respondent and paid the rent out of Court. In this regard his counter-affidavit needs to be mentioned as it is the basis of his claim. Particular mention should be made to paragraphs 3, 4, 5, 6, 7 of the counter-affidavit which are reproduced as under:-

That in July 1982 the attorney of the applicant approached me for compromise which was agreed in principle and the negotiations continued between the parties. In September, 198: the applicant (landlord) came in person to me from Dubai and it was agreed that parties shall file compromise in Court in all the four cases pending between the parties (No.R.C.39/82. Suit No.551/82, R.C.No.1562/82 and Suit No.1645/82). The applicant's attorney in July 1982 had asked me that in future I should pay rent to him.

That as per agreement of compromise, the applicant received Rs.8,400 "cash from me vide receipt dated 30-9-1982 being rent from July, 1982 to December, 1982. This amount was paid to the applicant at his request as he expressed need for money (Photo copy of the receipt is annexed) original shall be produced in Court at the time of hearing of Section 16(2) application.

That the applicant had assured me that after settling the amount of repairs on site inspection to be adjusted against future rent, his attorney, shall file compromise application in all the above cases.

That the attorney of the applicant subsequently and unnecessarily created dispute over the amount of cost of repairs and adopted evasive attitude and made the application under reply behind my back while I was mostly out of Karachi in November and December, 1982.

That having paid rent up to December, 1982 and a compromise already having been made with the applicant, I did not show any impatience. The applicant's attorney wriggled out of his earlier commitments and made the application under section 16(2).

A perusal of these averments makes it clear that there was no concluded settlement otherwise it would have been reduced in writing and proper application would have been filed in Court. It gives the impression that if at all the alleged settlement was only at a negotiating stage. It is an admitted position that several cases were pending between the parties. In these circumstances the appellant should have been cautious enough, in the normal course of conduct, to get all the details and terms of compromise reduced in writing before making any payment, particularly so as he had not paid rent as directed by the Controller. In this background the receipt for payment produced by the appellant seems to be doubtful particularly when the respondent has denied the execution of the receipt and the appellant has not filed the affidavit of any independent witness to corroborate his statement. In this state of affair it seems that there has been no valid or proper compromise between the parties. Even otherwise the payment is alleged to have been made on 30-12-1982 which admittedly was beyond the date fixed by the Controller for deposit of rent for the months of July and August. For these reasons I would not interfere with the order passed by the Controller. The appeal in dismissed. The appellant is allowed six months time to vacate the promises.

M. A. K./A-120/K Eviction upheld.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.