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Before Abdul Razak A. Thahim, J
MUHAMMAD SARWAR-Appellant
versus
MUMTAZ ALI CHANDANI-Respondent
First Rent Appeal No. 56 of 1986, decided on 9th December, 1986.
- S. 15-Striking off defence-Tenant complying with tentative rent order of Rent Controller regularly but default occurring in one month when an amount of rupees fifty less was deposited-Explana tion of tenant, that he had gone away and directed his servant to deposit full amount but he deposited less amount by mistake, appearing to be plausible-Tenant as such committing no wilful default or non-compliance of tentative rent order-Order of Rent Controller, striking off defence of tenant, set aside and case remanded with direction to proceed on merits.
P L D 1986 Kar. 16; P L D 1980 S C 298; P L D 1980 Lah. 302; 1983 C L C 2088; 1984 C 1. C 258 and Shahid Hussain v. Iqbal and ll others 1986 S C M R 1069 ref.
Abdul Fahim Khan for Appellant.
Umar Hayat Sandhe for Respondent.
Date of hearing: 9th December, 1986.
By this appeal order of IIIrd Senior Judge and Rent Controller (West) Karachi, dated 22nd December, 1985, whereby he has struck off the defence of the appellant has been challenged.
2. Rent Controller in Rent Case No. 5029 of 1980 passed tentative rent order on 17-8-1982 whereby appellant was directed to deposit full arrears upto July 1982, latest by 28th October, 1982, at the rate of Rs. 100 per month. It was further directed that appellant should continue to pay future rent at the rate of Rs. 150 per month with the Nazir of the Court commencing from August 1982, on or before 10th of each succeeding month and the respondent shall be entitled to withdraw the amount at the rate of Rs. 100 per month till he provides shutter to the shop in question as per second tenancy agreement and that appellant shall be entitled to get refund of Rs. 50 as per agreement till the shutter is provided.
3. It is alleged that appellant deposited Rs. 100 being the rent of September 1982, instead of Rs. 150 thus his defence has been struck off.
4. I have heard Mr. Abdul Fahim Khan for the appellant. He argued that servant of appellant had deposited Rs. 100 instead of Rs. 150 through mistake because appellant had gone out of Karachi. It is contended by the learned counsel that it is an admitted fact that premises were ranted out to the appellant on payment of Rs. 5,000 as Pugree, therefore, the provisions of Sind Rented Premises Ordinance, 1979, are not applicable to this case. Reliance has been placed on P L D 1986 Kar. 16. In the alternate it is contended that the amount of Rs. 50 could be adjusted from the Pugree. He has referred to the case reported in P L D 1980 S C 298 and P L D 1980 Lah. 302.
5. Mr. Umar Hayat Sandhu has frankly admitted that an amount of Rs. 5,000 as Pugree was accepted by the respondent but is not refund able. It is argued that appellant has violated the tentative rent order, therefore, he is liable to be evicted. He has referred to the case reported in 1983 C L C 2088 and 1984 C L C 258.
6. The tentative rent order was passed on 17-8-1982 and the rent was being deposited by the appellant regularly. His defence has bee struck off on the ground that in rent of September 1982, an amount o Rs. 50 less was deposited. The Rent Controller in his tentative rent order has clearly stated that appellant is entitled to the refund of Rs. 5 till shutter one provided. This amount is being accumulated with the Rent Controller and there is nothing on the record that shutters were provided.
7. The rent of September 1982, at the rate of Rs. 100 was deposited. The explanation of appellant that he had gone away and directed his servant to deposit the rent which through mistake deposited Rs. 100 B instead of Rs. 150 seems to be plausible. In these circumstances appellant has not committed a wilful default or non-compliance of the tentative rent order.
8. In case of Shahid Hussain v. Iqbal and 11 others (1986 S C M R 1069), it has been held that if default is merely technical could be condoned. Lastly, in case of Muhammad Hanif v. Mumtaz Ahmad (P L D 1986 Kar. 16) it has been held that landlord after having accepted Pugree in respect of tent is not legally entitled to seek relief under the Ordnance and any agreement providing for a Pugree would be hit by prohibition contained in section 7 of the West Pakistan Urban Rent Restriction Ordinance, 1959, and would fall in the ambit of section 23 of the Contract Act, 1972. However, I do not like to go in detail on this aspect. It is for the Rent Controller to consider this legal point while deciding the rent case.
For the time being, I am of the view that the case for the wlitul default or contravention of tentative rent order has not been proved, therefore, the order of the Rent Controller is set aside and the case, is remanded back with the directions that Rent Controller should proceed with the case and decide it on merits.
M. Y. H./5076/K Case remanded.
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