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First Rent Appeals Nos. 11, 13, 14 and 15 of 1986, decided on 22nd April, 1987.

‑‑‑Ss. 15, 16(1)(2) & 21‑‑Ejectment of tenant‑‑Tentative rent order‑ Striking off defence of tenant for non‑compliance of such order‑ Validity of such order challenged‑‑Late deposit of one month's rent by 18 days‑‑Technical default‑‑Effect‑‑Tenants had been depositing rent in advance‑‑Held, after adjustment of amount deposited by tenants in miscellaneous application which had been allowed by Court, even defaulting months' rent could be considered .to have been paid in advance‑‑Default being technical in nature deserved to be condoned‑ Case was remanded with direction to decide same on merits.

1986 S C M R 1192; 1980 S .C M R 779; 1979 S C M R 496; P L D 1983 S C 1; 1984 C L C 1652; Muhammad Sarwar v. Mumtaz Ali Chandani P L D 1987 Kar. 173 and Shahid Hussain v. Iqbal and 11 others 1986 S C M R 1069 ref.

Mansoor Ahmad Khan for Appellants. Ashiq Ali Abdullah for Respondent. Date of hearing: 9th April, 1987.

By this single judgment I propose to dispose of four First Rent Appeals bearing Nos. 11, 13, 14 and 15 of 1986 filed by the tenants against the order, dated 30‑11‑1985 of 1st Senior Civil Judge and Rent Controller whereby the defence of the appellants was struck off and ejectment applications were allowed. The points involved in this appeals are identical.

The facts are that respondent Aftab Ahmed is landlord of a plot bearing No. 1733 and building thereon known as Aftab Manzil, situated opposite Mulla Umar Jamia Masjid, Lyari Quarters, Karachi and admittedly the appellants are tenants and the rent cases were filed on the ground of default and personal bona fide requirement. During the pendency of rent case the Rent Controller passed an order under section 16(1) of the Sind Rented Premises Ordinance, 1979 on 16‑11‑1981 whereby appellants were directed to deposit arrears of rent from 1‑7‑1980 to 31‑10‑1981 at the rate of Rs.92 per month amounting to Rs.1,472 each before 15‑1‑1981 and also continue to deposit future rent at the same rate on or before 10th of every succeeding month till the final disposal of the case. However, the Rent Controller directed that they could adjust the amount of rent if paid by them in any other case. On 3‑3‑1983 an application under section 16(2) of the Ordinance was moved by the respondent stating therein that they have failed to deposit rent of January, 1983 before 10‑2‑1983. Therefore, they have violated the terms of the tentative order passed by the Rent Controller.

Appellants in their objections took the plea that they had already deposited the total sum of Rs.966 each in Miscellaneous Rent Applications Nos. 4592, 4595, 4593 and 4594 of 1979 respectively and after necessary adjustment the default has not been committed as the Rent Controller had allowed the adjustment of amount lying in any case.

It is argued by Mr. Mansoor Ahmed Khan, for the appellants that the default is a technical one as the Rent Controller in the tentative rent order has allowed the adjustment with the rents deposited in any other Miscellaneous Rent Application by the appellants, therefore, Rs.966 in Miscellaneous Rent Application were lying and after making adjustment the default cannot be said to have been committed. It is also argued that default is in respect of late payment of rent of January by 18 days only whereas sufficient amount was lying in the Miscellaneous Rent Applications which has been withdrawn by respondent, therefore, no default has been committed. He has referred to the cases reported in P L D 1987 Kar. 173 and 1986 SCMR 1192.

Mr. Ashiq Ali, appearing for the respondent submitted that non‑compliance of the tentative rent order results in striking of the defence. He has supported the impugned order and referred to the cases reported in 1980 S C M R 779, 1979 S C M R 496, P L D 1983 y 'S C page 1 and 1984 C L C 1652.

The tentative rent order, as stated above, was passed in all the four cases on 16‑11‑1981. By this order the Rent Controller had allowed the appellants to adjust the rent if paid by them in any other case. The matter was earlier settled by the parties and amount of Rs.996 was lying in each Miscellaneous Rent Case. This fact has not been denied by the respondent but submits that no adjustment was given as there are no specific order as to which amount to be adjusted in which rent case. Presently the allegation against the appellants is that they deposited the rent of January, 1983 on 27‑2‑1984 and the defence has been struck off for the late deposit of the rent. After passing of the rent order the respondent in application under section 16(2) clearly stated that the appellants had already deposited the rent upto 31‑12‑1981 in Misc. Rent Applications. Thereafter they deposited the amount of Rs.552 each on 4‑2‑1982 as rent for six months from 1‑1‑1982 to 30‑6‑1982 and again on 29‑7‑1982 they deposited an amount of Rs.552 each being the rent for six months for the period of 1‑7‑1982 to 31‑12‑1982, thus it appears that the appellants have been depositing the lump sum rent in advance for six months in time. Thereafter again on 27‑2‑1983 they deposited rent for six months for the period from January, 1983 to 30‑6‑1983 being the rent in advance but the defence of the appellants has only been struck off because rent which was deposited for six months on 7‑2‑1983 in advance but the rent for January was late by 18 days. The conduct of the appellants is very clear that they were very vigilant in depositing the rent in advance and were committing no default. Not only this, but adjustment was allowed and that amount was also lying in Misc. Rent Applications and after that adjustment even the rent of one month could be considered to have been paid in advance. Therefore, in my view the default is a technical one. In case of Muhammad Sarwar v. Mumtaz Ali Chandani reported in P L D 1987 Karachi 173 it was held that if default is not wilful and tenant was regularly paying the rent the explanation is plausible which may be accepted. In the case of Shahid Hussain v. Iqbal and 11 others reported in 1986 S C M R 1069 it has been held that if default is more technical it should be condoned.