Find a Lawyer

First Rent Appeal No. 332 of 1985, decided on 1st December, 1986.

‑‑‑Ss. 15 & 16(1)(2)‑‑Eviction of tenant‑‑Tentative rent order‑ Non‑compliance of‑‑Effect‑‑To comply with directions given by Rent Controller in tentative rent order in respect of deposit of rent, being incumbent on tenant, tenant who had been depositing rent in miscellaneous application against such directions, held, had committed default in complying with tentative rent order and his defence was rightly struck off by Rent Controller due to such non‑compliance‑ Explanation of tenant for such non‑compliance that he was illiterate person, could not be accepted as he was all along represented by Advocate.

1983 C L C 613; 1984 C L C 3102; Qadir Khan v. Mst. Kishwar Begum and others 1983 C L C 683; Maj. (Retd.) A.K.M. Samad v. The Lt.‑Col. (Retd.) A. Hussain and others 1983 S C M R 773; Abdullah Changro v. Mst. Tahira Begum 1984 C L C 3120 and Sirajuddin v. Mohammad Usman 1986 CLC 550 ref.

Amir Azam for Appellants.

Ghafoor and Sadik for Respondent.

Date of hearing: 20th November, 1986.

By this first rent appeal under section 21 of Sind Rented Premises Ordinance, 1979, the order dated 28th April, 1985 of XIII Rent Controller, Karachi, whereby defence of the appellant was struck off has been challenged.

2. The Rent Application under section 15 of the Sind Premises Ordinance, 1979, (hereinafter referred to as the Ordinance) was filed on 1‑11‑1982 on the grounds of default in payment of rent and sub‑letting. The written statement was filed on 25th November, 1982 in which appellant pleaded that he is depositing the rent in miscellaneous rent application No. 4073/82. The Rent Controller on the application of the respondent filed under section 16(1) directed the appellant to deposit the arrears of the rent from October, 1979 to February 1984 being rent for 52 months at the rate of Rs.154 per month amounting to Rs.8,162 on or before 20th April, 1984 and also to deposit the rent from March 1984 on or before 10th April, 1984 and continue to deposit future monthly rent on 10th of every succeeding month. The respondent moved an application under section 16(2) of the Ordinance which was allowed and the defence of the appellant was struck off and he has been directed to put the respondent into possession of the premises within 30 days.

3. I have heard Mr. Amir Azam, Advocate for the appellant. It is contended by the learned counsel that appellant has not committed any default he has deposited .the entire amount in the miscellaneous rent application. It is argued that only technical mistake on the part of the appellant as he is illiterate. It is also argued that in the order passed under section 16(1) of the Ordinance there were no specific directions that rent is to be deposited in the court. He has referred to the cases reported in 1983 S C M R 773 and 1983 C L C 613.

4. Mr. Sadiq appearing for the respondent contended that appellant has committed wilful default and not complied with the orders of the Rent Controller. He has referred to the cases reported in 1986 CLC 550; 1984 C L C 3102 and he has produced photostat copy of the Supreme Court judgment in Civil Petition No. 419‑K/85 decided on 9‑3‑1986.

5. In the present case the tentative rent order has not been challenged. It is an admitted position that the order of the Rent Controller was not complied with in the terms and rent was not deposited in the court but appellant continued to deposit the rent in the miscellaneous rent application though he was specifically ordered to deposit the rent. The contention of the learned counsel that no specific directions were given to deposit in the court cannot be sustained on the ground that in the objections filed on the application filed under section 16(1) by the respondent no such plea was taken. After passing the order by the Rent Controller the future rent was also not deposited in the court. The explanation of the appellant is that appellant is illiterate person cannot be accepted as he was all along represented by the Advocate.

6. In case of Qadir Khan v. Mst. Kishwar Begum and others reported in 1983 C L C 683 the tenant was directed to deposit the arrears of rent in court by a fixed date but he remitted the arrears to landlord by money order within time, therefore, it was held that tenant cannot be said to have failed to comply with the orders of the Rent Controller. Another case cited by the learned counsel for the appellant is of Maj. (Retd.) A. K.M. Samad v. Lt.‑Col. (Retd.) A. Hussain and others reported in 1983 S C M R 773. In that case only leave to appeal was granted. Both the counsel have not been able to point out if that case has yet been decided.

7. On the other hand, Mr. Sadiq has relied ' upon the case of Abdullah Changhro v. Mst. Tahira Begum reported in 1984 C L C 3120 in which it has been held that tenant was depositing rent in miscellaneous application despite of the order passed by the Rent Controller, hold to that order of the Rent Controller not complied with. In this case number of authorities have been referred. In case of Sirajuddin v. Mohammad Usman reported in 1986 C L C 550 it has been held that non‑compliance of directions of the Rent Controller and depositing rent in other miscellaneous rent case against the directions of the Rent Controller, the tenant held committed default. The latest case is C.P. 419‑K/85, Ghulam Hussain v. Mst. Roshan Bibi decided by Supreme Court on 9‑3‑1986 in which their Lordships have held as under:‑

"2. In appeal before the Sind High Court the petitioner contended that he had committed no default of the tentative rent deposit order, in so far as he had continously deposited rent in the miscellaneous proceedings upto the date the order striking off his defence. His plea was that the Advocate engaged by him had died and he had engaged another Advocate to represent him, who had no knowledge of the proceedings, with the result that the petitioner had no notice of the passing of the tentative rent order or the application for striking off his defence. In view of this plea the learned Judge in the High Court examined Mr. Zafar Javed, advocate subsequently engaged by the petitioner. In his statement. Mr. Zafar Javed stated that he had directed the petitioner to bring the papers and receipts of rent deposited by him but the petitioner failed to do so in time before the passing of the final order by the Rent Controller. The learned Single Judge upon examining the material on record found that notice of the application for striking off defence had been received by Mr. Zafar Javed after he was engaged and therefore came to the conclusion that the petitioner was negligent in prosecution his case by not furnishing his counsel with the relevant information regarding the deposit of rent. As no particulars of the account number or receipts of the miscellaneous proceedings were produced before the learned Rent Controller, the learned Single Judge felt that the latter was justified in passing the order of ejectment. Additionally the learned Judge came to the conclusion that as the premises were admittedly demolished by the landlord after obtaining possession from the petitioner by means of execution of the order of ejectment, no useful purpose would be served to relieve the petitioner of what he described as technical default committed by him. Accordingly the petitioner's appeal was dismissed by the learned Single Judge by his order dated 18th September, 1985.

3. In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application. The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the order by depositing the rents in the account of the ejectment the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sind Rented Premises Ordinance.

4. Learned counsel also argued that the High Court was not justified in refusing relief to the petitioner on the ground that the building of the premises was demolished. His contention was that demolition of the demised premises does not terminate the tenancy. In the circumstances of this case we find no force in this contention for the reason that the appeal of the petitioner was not dismissed on the basis of demolition of the building only, but this fact was taken into consideration in the context of petitioner's plea that the non‑compliance of the tentative rent order was technical in so far as the rents were being deposited in the miscellaneous proceedings. Learned counsel wanted us to hold that the building has not been completely demolished but we are not inclined to undertake a factual inquiry at this stage. For all these reasons this is not a fit case for grant of leave and accordingly the petition is dismissed."

8. It was incumbent on the appellant to have complied with the) tentative rent order which he has failed to do. In view of the case law cited by Mr. Sadiq, I am of the view that the Rent Controller has rightly struck off the defence of the appellant and ordered his eviction. The appeal is dismissed with no order as to costs.

H. B. T./K‑16/K Appeal dismissed.

Find a Lawyer Near You

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