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First Rent Appeal No. 39 of 1985, decided on 18th September, 1986.

‑‑‑Ss. 16(1)(2) & 21(1)‑‑Tentative rent order, non‑compliance of‑ Striking off defence‑‑Tentative rent order with clear direction regarding deposit of arrears of rent and future rent admittedly passed in presence of tenant‑‑Tenant in spite of full knowledge of such order failed to deposit future rent accordingly‑‑Application of landlord for striking off defence on ground of non‑compliance of tentative rent order, would not entitle tenant to file any objection or counter‑affidavit against such application‑‑Plea of tenant that he was not given proper opportunity to contest application of landlord and that he misunderstood tentative rent order, held, was not valid for non‑compliance thereof‑‑Order of Rent Controller for striking off defence of tenant was unexceptionable in circumstances and would call for no interference in appellate jurisdiction of High Court.

1973 S C M R 112; P L D 1969 Kar. 176; Javaid Iqbal v. Rana Muzaffar Khan 1976 S C M R 229; 1982 C L C 850 and Messrs Crescent Publicity Services v. S.M. Younus and others 1980 S C M R 779 ref.

Nazeer Ahmad Awan for Appellant.

Abdul Naeem for Respondent.

Date of hearing: 17th September, 1986.

This appeal is against the order of learned Senior Civil Judge and Rent Controller, Sukkur passed on 27‑3‑1985 in Rent Application No. 121 of 1984 whereby he struck off defence of the appell4int/tenant under section 16(2) of the Sind Rented Premises Ordinance, 1979 and ordered his eviction.

I have heard Mr. Nazir Ahmed Awan for the appellant and Mr. Abdul Naeem for the respondent and also perused the record and proceedings of the case.

The facts leading to this appeal briefly are that the respondent/ landlord filed eviction application against the appellant, one of the grounds being default in payment of rent. The learned Rent Controller on the application of the respondent under section 16(1) of the Ordinance, passed an order on 22‑1‑1985 directing the opponent to deposit the arrears of rent amounting to Rs.4,200 on or before 21‑2‑1985 and further directed the appellant to deposit monthly rent on or before 10th of succeeding month. In the order he specifically mentioned that rent of January, 1985 was not included in the arrears. The arrears amounting to Rs.4,200 were admittedly deposited by the appellant on 21‑2‑1985 but the rent for the month of January, 1985 was not deposited, by him on or before 10th of February, 1985 but he also deposited it alongwith arrears on 21‑2‑1985. The respondent moved an application under section 16(2) of the Ordinance for striking off the defence. The learned Rent Controller after hearing the parties passed the impugned order.

In this appeal two grounds are mainly raised. The first ground is, that the appellant was not given opportunity to file objections as he could not file any counter‑affidavit because he was out of station. Secondly it is submitted, that the appellant did not deposit rent of January on or before 10th February because of misunderstanding that he had to deposit it alongwith the arrears on 21‑2‑1985 which he did.

It is admitted fact, that no objections or counter‑affidavit was filed by the appellant against the application under section 16(2) of the Ordinance. The diary of the case before the trial Court shows, that notice of the application under section 16(2) was supplied to the counsel for appellant on 11‑3‑1985. The matter was fixed on 17‑3‑1985 when it was adjourned at the request of the learned counsel for the appellant on the ground that he was busy in Sessions Court. The matter was adjourned to 21‑3‑1985, when it was again adjourned to 26‑3‑1985 as the learned Rent Controller was on casual leave. On 26‑3‑1985 the learned counsel for the appellant did not move any application for adjournment on the ground, that he has not been able to contact his client, but he argued the application and on 27‑3‑1985 the impugned order was passed. Thus, from the diary it is clear, that the matter was adjourned at least for three hearings, but the objections or counter‑affidavit was not filed by the appellant nor any application was moved by his learned counsel for adjournment on the ground that he has not been able to contact the appellant. Even in this appeal no affidavit has been filed by the learned counsel to the effect, that he could not contact his client or that he requested the Court for adjournment on this ground. Therefore, the ground taken in this appeal that the appellant was not given proper opportunity to contest the application by filing counter‑affidavit or objections has got no force.

Before the Rent Controller as well as before this Court it is contended, that the appellant had misunderstood the order of the Court. Apart from the fact that the appellant did not file any such counter affidavit before the learned Rent Controller, from the order of the learned Rent Controller it appears, that the order of deposit of rent, dated 22‑1‑1985 was passed in presence of both the parties and their counsel. In this order, as already pointed it was further specifically clarified, that the rent of January, 1985 was not included in the arrears. The impugned order further shows that the order of learned Rent Controller, dated 22‑1‑1985 was noted by the counsel for the appellant.

The learned counsel for the appellant has relied on 1973 SCMR 112. The facts of that case are distinguishable from the facts of present case. In the reported case, the tenant's counsel had wrongly interpreted the order and had told his client that arrears as well as current rent due were to be deposited by 15‑7‑1966, when the tenant .had deposited the current rent as well as arrears. Their Lordships held "Default in depositing current monthly rent by tenant, in circumstances, was due to misinterpretation of order by counsel and, therefore, bona fide and not wilful." In the reported case the counsel had filed such affidavit supporting the above plea of the tenant. As already pointed in the instant case neither there is such affidavit by the appellant nor by his counsel. Reliance is also placed on P L D 1969 Kar. 176, but again the facts of the case are absolutely different from the instant case. In the reported case the rent was tendered by the cheque deposited with the Rent Controller not before the date fixed by the Rent Controller but on the date. It was held that it was bona fide mistake which cannot be made ground to hold tenant to be in default.

In the case of Javaid Iqbal v. Rana Muzaffar Khan 1976 SCMR 229 the plea of the tenant that the default in deposit of rent had occurred because he was not duly apprised of the order regarding deposit of future rent by the counsel was not accepted by their Lordship who held "petitioner being negligent in prosecution of his defence by failing to keep himself fully informed, of the order passed against him, default in payment of rent was not unavoidable or beyond his control and hence order striking off defence was unexceptional." It was further held, that "before an order under section 13(6) of West Pakistan Urban Rent Restricion Ordinance was passed the opportunity to adduce evidence not necessarily to be always given to the tenant. Requirement was to allow fair opportunity to defaulting tenant to explain default on his part.

As already pointed in the instant case the appellant was given opportunity to explain his default and, therefore, it cannot be held that he was not given sufficient opportunity to file objections or counter‑affidavit.

The facts of the case reported in 1982 C L C 850 are absolutely similar to the facts of instant case. In the reported case the learned Rent Controller ordered the tenant to deposit arrears of rent from March, 1979 till February, 1980 amounting to Rs.2,100 by 31‑5‑1980 vide h:, order, dated 19‑3‑1980. He further directed future monthly rent to be deposited before 10th of every calendar month till the final disposal of the case. The tenant, however, deposited the arrears as well as current rent for the month of March also on 24‑4‑1980. It was pleaded by the tenant, that the Advocate did not inform him about the deposit of rent of March separately from arrears. A learned Single Judge of this Court held:

"It was for him as opponent and as a litigant to be aware of the orders of the Court and to comply in the best manner possible.

The contention that knowledge of the counsel cannot be considered to be knowledge of the appellant with regard to the passing of the tentative rent order is also apparently incorrect. If there is any fault of the counsel or the client, it is for them to settle the matter between themselves; but this type of plea cannot be accepted where third parties are concerned. Even, otherwise for the reasons already stated, it is apparent that the default committed for depositing the current monthly rent after a delay of about 24 days was not due to any unavoidable circumstances but was, if at all, due to carelessness on the part of the appellant."

In case of Messrs Crescent Publicity Services v. S.M. Younus and others 1980 S C M R 779 it was held that single default was sufficient to bring the case within the mischief of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

Thus, the plea of the appellant that he misunderstood the order of the Rent Controller, dated 22‑1‑1985 cannot be considered as a valid ground for non‑compliance of the order of learned Rent Controller. He does not allege that his counsel had misinformed him or that he, even had sought advice of the learned counsel with regard to the order of Rent Controller directing the deposit of arrears and current A rent. His own wrong interpretation of order would, therefore, not save him from the consequences of default. The impugned order passed by learned Rent Controller, therefore, is unexceptionable and calls for no interference. The appeal was dismissed by short order, dated 17‑9‑1986 and the appellant was directed to hand over possession after expiry of three months of this order. Above are the reasons in support of the said order.

H. B. T /5185/K Appeal dismissed.

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