Find a Lawyer

First Rent Appeal No. 1100 of 1986, decided on 7th April,1987.

‑‑‑Ss. 21, 15 & 16‑‑Deposit of rent, default in‑‑Rent Controller striking off defence of tenant for causing three days' delay in depositing rent for one month and ordering his eviction‑‑Tenant found to have been regularly depositing rent in time for the last six years‑‑Excess amount of rent for one of months deposited by tenant although not due also withdrawn by landlord‑‑Delay of three days in payment of rent, held, was technical and not wilful and tenant was entitled to get befit thereof‑‑Appeal of tenant allowed and order of Rent Controller set aside.

1984 C L C 3102; 1986 S C M R 1714; 1982 S C M R 985; 1981 SCMR 276 and 1985 C L C 41 cited.

K.B. Bhutto for Appellant.

Farooq A. Naik for Respondent.

Date of hearing: 8th March, 1987.

By this rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as Ordinance) the order, dated 3rd November, 1986 Vth Senior Civil Judge and Rent Controller, Karachi (East) passed under section 16(2) of the Ordinance by which the defence of the appellant has been struck of has been challenged. The Rent Controller has directed the appellant to hand over the vacant possession of the. premises to the respondent within one month from the date of the order. A rent application under section 15 of the Ordinance was filed by respondent Mst. Sultan Jehan Begum on the grounds of personal requirement and subletting. The Rent Controller during the pendency of the proceedings under section 16(1) of the Ordinance, passed the following order:‑---

"The applicant has claimed arrears of rent from October, 1980 upto dated at Rs.425 p.m. The rate of rent and the period is not disputed. It is contended by learned opponent's counsel that rent from the period claimed by the applicant has been deposited in Miscellaneous Rent Case No. 2590 of 1980. No proof has been produced. Accordingly, I direct the opponent to deposit arrears of rent from October 1980 to June 1981 (9 months) amounting to Rs.3,825 within two months of this order. Whatever in miscellaneous case is adjustable towards arrears ordered above.

The opponent is further directed to deposit monthly future rent at Rs.425 p.m. from July 1981 on or before 10th August 1981 and so in future till final disposal of the case. Put off to 8‑9‑1981 for evidence of the applicant."

The respondent moved an application under section 16(2) of the Ordinance in which it. was stated that appellant failed to deposit the rent for the month of January 1986 on or before 10 February, 1986, but deposited the .same on 13th February, 1986, therefore, he has failed to comply with the order of the Court. The Rent Controller on this application struck of the defence of the appellant and ordered his eviction as stated above.

I have heard Mr. K.B. Bhutto, for the appellant. It is contended by the learned counsel that in view of the tentative rent order, the Rent Controller allowed adjustment of the rent deposited in miscellaneous Rent case. It is further contended that after necessary adjustment there was no default. The contention of Mr. Bhutto is that in the miscellaneous rent application the rent upto June, 1981 was deposited before the passing of tentative rent order but subsequently appellant once again deposited Rs.425 being the rent of June 1981 in the miscellaneous rent application on 8‑7‑1981, and also subsequently all along he continued to deposit the rent as ordered by Rent Controller. This position has not been denied by Mr. Farooq H. Naik, appearing for the respondent. But it is argued that strictly the order of the Rent Controller was not complied with as rent for January, 1981 was deposited on 13th February, 1981 as such there is delay of 3 days in deposit of rent. He has referred the case reported in 1984 C L C 3102, 1986 S C M R 1714, 1982 S C M R 985, 1981 S C M R 276 and 1985 C L C 41.

In the rent application filed on 7‑1‑1980 the ground of default was not taken. The order under section 16(1) was passed on 2‑7‑1981 by which adjustment was allowed. It is clear that after adjustment there was no default. The appellant was regularly depositing the rent before 10th of every month, upto filing of application under section 16(2) on 16th April, 1986. The only question is that deposit of rent for January 1986 by 13th February, 1986 i.e. 3 days after the time allowed could be intentional in the terms of the rent order. The non‑compliance to that extent is admitted but the argument of learned counsel for the appellant are that due to bona fide mistake the appellant had twice deposited rent of June 1981 even after passing of tentative rent order and appellant deposited rent of July 1981 in Court on 5‑8‑1981 and continued to deposit in time for more than five years filing of application under section 16(1). The Rent Controller in his order held that appellant is also responsible for deposit of rent of March 1986 on 7‑5‑1986 which was due of 10th April. Appellant produced original Receipt No. 31952, dated 8‑3‑1986 Annexure 'E' for Rs.850 pertaining the rent of February and March 1986 whereas ledger entry is for Rs.425 only which is wrong. However, Mr. Farooq Naik, appearing the respondent has not pressed this point and stated that there is no delay in payment of rent of March 1986. Moreover, in the application filed under section 16(1) the delay for payment of rent of March 1986 was not taken. Therefore, there is no delay in payment of rent of March 1986. It is also argued by the appellant that respondent has been withdrawing the rent amount and has also withdrawn the amount deposited in miscellaneous rent application. By doing this it is argued that respondent has also withdrawn excess amount of Rs.425 deposited by appellant on 8‑7‑1981 though this amount was not due, therefore, according to appellant an excess amount is still lying with respondent, therefore, this could be termed as technical default as such appellant be given benefit. Looking to this circumstances of the case and conduct of the appellant that he during last six years has been regularly depositing the rent in time and that an amount of rent for June 1981 was deposited by him in miscellaneous rent application even after passing the tentative rent order though it was not due and that amount has been withdrawn by respondent which he was not supposed to do as he was not entitled to have the rent of two months for June 1981. I am, therefore, of the view that delay of 3 days in payment of rent of January 1986 is technical and not wilful one, therefore, appellant is entitled to get benefit. For the reasons stated above I allow the appeal and set aside the order of the Rent Controller and direct that he should proceed with the case and decide on merits and law as early as possible as sufficient evidence have already been recorded.

S.Q./J‑12/K Appeal allowed.

Find a Lawyer Near You

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