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First Rent Appeal No. 901 and Civil Miscellaneous Application No.1921 of 1986, decided on 2nd December, 1986.

‑‑‑Ss. 16(1)(2) & 21(1)‑‑Tentative rent order, non‑compliance of‑ Striking off defence‑‑Order for justifiability of‑‑Evidence on record clearly showing that tenant failed to deposit arrears of rent in accordance with tentative rent order of Rent Controller‑‑There being clear non‑compliance of tentative rent order, Rent Controller, held, rightly struck off defence of tenant‑‑Order of Rent Controller being proper, would call for no interference in appeal.

1982 C L C 202 and Riffat Siddiqui v. Mahmood Abid Rizvi 1985 C M R 170 ref.

S.F. Abdullah for Appellant M.Z. Abbasi for Respondent.

This is a first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979, against the order, dated 30‑9‑1986 of II Senior Civil Judge and Rent Controller, Karachi (West) whereby he struck off the defence and directed the appellant to hand over the vacant possession within 30 days.

The Rent Case No. 58 of 1985 was filed on the ground of default in payment of rent from March 1985 upto the filing of the rent case. The written statement was filed. During the pendency of the rent case a tentative rent order was passed by the Rent Controller on 15‑7‑1985 whereby appellant was directed to deposit arrears from April 1985 to June, 1986 at the rate of Rs.1,100 per month and Rs.400 being arrears of rent of March 1985 amounting to Rs.16,900 after deducting Rs.4,800 if he had paid the decretal amount. The amount was to be paid within 30 days of the order and he was further directed to pay the future monthly rent at Rs.1,100 per month from July 1985.

The application was filed in which it was stated that appellant/ opponent has not paid the rent since March and he had failed to deposit the arrears by 13‑8‑1986 as he was required to pay the rent of July before 10th of August and that he has failed to deposit two decretal amounts of Small Causes Court, therefore, his salary has been attached.

The Rent Controller while deciding this application has come to the conclusion that the order was not complied with, therefore, his defence was struck off.

I have heard Mr. S.F. Abdullah for the appellant. It is contended by the learned counsel that suit for recovery was filed against the respondent which was decreed. It is argued that in a case reported in 1982 CLC 202 the facts relating to the suit could not be considered in this rent case. It is admitted that rent of July was not paid on the 10th of August but it was deposited on 13th August for which condonation application was made.

Mr. M.Z. Abbasi for the respondent has argued that there is a clear non‑compliance of the tentative rent order that appellant has violated the tentative rent order of the Rent Controller.

In the case of Islam Riffat Siddiqui v. Mahmood Abid Rizvi reported in 1985 SCMR 170 their Lordships of the Supreme Court had observed as under:

"Leave was granted to consider whether on the admitted facts of the case, the appellant could be held guilty of non‑compliance of the Controller order made under section 16(2) of the Sind Rented Premises Ordinance. The submission of learned counsel in this regard is that the question of non‑compliance did not arise because two bank drafts more than sufficient in value to cover the deficit amount had already been issued in favour of the landlord and the same are lying with the Controller. The Controller, it appears from the deposit order, took due note of these two bank drafts which had been produced before him by the landlord but nevertheless proceeded to make the order in terms already mentioned above. The contention was, however, raised before the Controller where the plea taken was that the delay was on account of the summer vacations. The contention was, however, taken before the High Court but it did nQLconsider the bank drafts to amount to payment to the landlord. In any case the bank drafts having admittedly been issued in the name of the landlord admittedly been issued in the name of the landlord and not of the Court, could not be treated to be a deposit in compliance of the orders. No case is, therefore, made out for interference with the concurrent decision of the Courts below. The appeal is dismissed with no order as to costs."

The rent case was filed on the ground of default and suit for recovery as admitted by the learned counsel for the appellant was in respect of rent from 1‑8‑1985 to 3‑11‑1985. However, I do not like to enter into this controversy as those proceedings but as this is clear that Rent Controller gave this concession adjustment to the appellant provided amount of Rs.4,800 which clearly were in the arrears were already paid. The learned counsel for the appellant has frankly stated in the Court. that amount of Rs.4,800 was paid in the month of October i.e. after about 3 months of the passing of the rent order. It is, therefore. clear that this amount was not paid before the order was passed. The adjustment was conditional one. In the objections filed by the appellant on 23rd September, 1986 on the application under section A 16(2) of the Ordinance, he has nowhere stated that Rs.4,800 were paid. On the contrary, he has stated that application had been made for the condonation of delay.

For the reasons stated above, the Rent Controller has rightly struck off the defence of the appellant and his order is a proper one which calls for no interference. The appeal is dismissed in limine

H.B.T./5120/K Appeal dismissed

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