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Second Appeal No.146 of 1976, decided on 21st December, 1980.

---Ss.13(6) & 15--Tentative rent order--Striking off defence of tenant--Tentative rent order directing tenant to deposit arrears of rent and future monthly rent of premises was not only passed by Rent Controller at the back of tenant and his counsel, but also was factually incorrect--Such order, held, was liable to be set aside and same could not form basis for striking off defence of tenant Order of Rent Controller for striking off defence of tenant and order dismissing application of tenant filed for condonation of default in payment of rent, upheld in appeal by Appellate Authority was set aside by High Court in second appeal and remanded case for decision afresh in accordance with law after affording parties opportunity of being heard.

P L D 1978 Lah.1032; P L D 1968 Kar.589 and P L D 1978 Kar.145 ref.

Munawar Abbas for Appellant.

Obaidur Rehman for Respondent.

Date of hearing: 30th November, 1980.

The appellant abovenamed has filed this appeal, against judgment dated 6-4-19'6 of the IVth Additional District Judge, Karachi, passed in Rent Appeal No. 444/74 By which he upheld the order dated 7-8-1974, passed by the XVIIIth Civil Judge and Rent Controller, Karachi in Rent Case No.1407/72, by which the defence of the appellant was struck off under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1969, inter alia on the following facts and grounds:

The respondent abovenamed, who is the landlord and owner of tenement No.A-9 1st Floor S.T.3-A, Block 14, Ruqqaya Square, Federal 'B' Area, Karachi, had filed the ejectment application dated 2-7-1972 under the provision of .section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, against the appellant, who is tenant of the said premises and against one Amir Khan on ground of default, subletting and on account of certain additions and alterations done by the appellant in the said premises, which according to respondent, impaired value of the property. Amir Khan s/o Sher Muhammad Khan in his capacity as the attorney of appellant, filed written statement on behalf of the appellant in August 1973 in which he admitted, relationship of landlord and tenant between the respondent and appellant abovenamed, but denied the quantum of rent and stated that the rent of the premises in question was Rs.70 per month and not Rs.75 as claimed by the respondent. In the said written statement, the allegation of the subletting as well as regarding impairing of the value of the premises in question were also denied. It was further stated in the said written statement that the respondent wanted to eject the appellant and other tenants of his property in question, as the same were let out at low price. As far as the question of default in payments of rent was concerned, it was stated in the said written statement that appellant had paid rent for the months of June and July 1972 in advance and the photo copy of the receipt thereof was already on record. It was further stated in the said written statement that respondent in his application has claimed rent from 1st July, 1972 only whereas the said application has been filed on 2nd July, 1972 and as such there was no default in payment of rent. The said Amir Khan s/o Sher Muhammad Khan earlier in 1972, also separately filed his own written statement, before the learned Rent Controller, in which he stated that he was neither tenant nor a subletting but for the time being was putting up with appellants, who is his cousin brother and at that particular time, the appellant was in Lahore in connection with business affairs and would file his written statements on being served.

The learned Rent Controller passed tentative rent order dated 2-1-1974 and directed the appellant to deposit arrears of rents from 1-2-1972 till December 1973 at the rate of Rs.75 per month, amounting to Rs.1,725 less Rs.200 paid in cash and less Rs.700 paid in D.W. No.240/73 in the Court of Small Causes Court, Karachi. The balance of the rent amount after the adjustment of the above two amounts, came to Rs.825 which he ordered that it be deposited within one month from the date of his order dated 2-1-1974 and further the learned Rent Controller by the said order directed, the appellant to deposit further rent on or before 15th of each month, from 1st January, 1974. The learned Rent. Controller by his said order allowed respondent to withdraw such deposited rent at the rate of Rs.70 per month only from 1st July, 1972, in view of dispute in the rate of rent as well as period of arrears.

That appellant, it is alleged, committed default in payment of rent in accordance with the order dated 2-1-1974 of the learned Rent Controller and as such, the respondent moved an application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, dated 4-2-1974, which was served on the appellant's counsel on 1-3-1974 and on this very date, the Advocate for the respondent moved an application under section 20 of West Pakistan General Clauses Act (VI of 1956) read with section 151, C.P.C., together with the affidavit of his clerk, on the ground that the rent order in question was passed in the absence of the appellant and his Advocate and as such fresh rent order be passed after hearing the appellant.

The learned Rent Controller dismissed appellant's application under section 20 of the General Clauses Act read with section 151, CPC by his order dated 31st July, 1974 after hearing the Advocates of the parties and after the receipt of Nazir report on respondent's application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, after he-ring the arguments of both the parties, by this order dated 7th August, 1974, allowed respondent's application under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, and .struck off the defence of the appellant and directed the appellant 'to put the respondent in possession of the premises in his occupation within 30 days of his said order.

The appellant abovenamed, being aggrieved by Border dated 7-8-1974 of the learned Rent Controller passed respondents application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, filed Rent Appeal No.444/74 in the Court of IVth Additional District Judge, Karachi, who by his judgment dated 8-4-1976, dismissed the said appeal for the reasons given in the said order and consequently upheld the order dated 7-8-1974 of the learned -Rent Controller. The appellant being aggrieved by the orders dated 7-8-1974 and 8-4-1976 of the learned Rent Controller and IVth Additional District Judge, Karachi respectively, has preferred this appeal on the following grounds:

(1) That the learned Court has erred gravely, when he passed the impugned order in Appeal without fully applying his mind and without appreciating the facts and circumstances leading to the failure of the appellant to deposit rent in Court in compliance of the order, therefore, hence the same is liable to be set aside.

(2) The learned Court ought to have given consideration to the facts which made the appellant rely upon the information conveyed to him by his Advocate as to the position of his case, subsequent to filing the said rent statement, and come to the conclusion that he did not commit default in law, as the circumstances were beyond his control.

(3) The learned Court ought, to have appreciated the facts that the mischief was committed by the Court Clerk, who purposefully or otherwise made the appellant's Advocate believe that the said case would be transferred to some other Court which would issue notice of further proceedings therein, instead of simply accepting the reasons given by the Rent Controller in his judgment that Court diary showed on the relevant date, when the Rent Order was passed, the presence of appellant's Advocate and hence according to him the appellant had knowledge of the rent order when actually the said Advocate was not present in Court on the said date, as he had no information 'of the proceedings at all. The Court diary cannot be taken as a Gospel truth. Court Clerk more often than not, write their diaries in a stereotype manner, without taking notices as to who was, or who was not, present in Court. That both the lower Courts have committed a grave mistake in taking the Court diary for the relevant date as true and the contention against it on behalf of the appellant as untrue. This amounts to denial of justice and the appellant is made to suffer for no fault of his. Hence the impugned judgment is bad in law and against equity and good conscience.

I have heard the learned counsel for the parties and have gone through the record and proceedings of the learned Rent Controller as well as orders of both the learned lower Courts and through the authorities cited before me by both the parties.

The first contention of the learned counsel for the appellant raised before me is that rent order purporting to be dated 2-1-1974 was not passed at all on said date, which is evident from para 4 of the counter-affidavit dated 9-4-1974 of the respondent filed in reply to appellant's application under section 20 of West Pakistan General Clauses Act, 1956 read with section 151, CPC. In the alternative, it is submitted that the alleged order dated 2-1-1974, if it was really passed, it was passed at the back of the appellant and his counsel and as such was not within the knowledge of the appellant and consequently cannot form the basis for striking off the defence of the appellant. The paragraph 4 of the counter-affidavit dated 9-4-1974 of the respondent to application of appellant reads as under:

"Para 2 as stated is denied by me. The fact is that on 14-12-1973 Mr. Mobarak Ahmad, learned Advocate for the opponent had appeared and had filed rent account on behalf of his client. Although the Presiding Officer of Court No.XVIII had already left and no other appointment till then was made but the work of the Court was being looked after by the learned Link Judge and as a matter of fact Mr. Mobarak Ahmad Advocate had filed his rent account before the learned Link Judge. After filing of the rent account the matter was adjourned to 17-3-1,973 for passing of the deposit order. That on 2-1-1974 the diary sheet of the file clearly shows that the opponent was present. I was also present but the matter was adjourned to 5-3-1974 because the deposit order could not be passed."

From the last 3 lines the abovementioned paragraph, it is' clear, that no rent order was passed on 2-1-1974 and the matter was adjourned to 5-3-1374. However, the order sheet of the learned Rent Controller, shows that the rent order was passed on 2-1-1974 in the presence of the Advocate of the appellant and the matter was adjourned for issues to 3-2-1974. However, there is no diary sheet written for 3-2-1.974 and the next diary sheet written is for 5-3-1974, the date on which the above matter according to respondent's averments, made in para 4 of his counter-affidavit was adjourned. In view of this, the contention of the appellant, as contained in the affidavit dated. 18-3-1974, that the Advocate of the respondent conveyed this date to him and further informed him that the rent order was passed without specifying the date of passing of such order, seems to me in line with the averments made by respondent in his counter-affidavit dated 9th April, 1974. In view of these contradictory statements of facts on record of the file of the learned Rent Controller, I am inclined to accept the plea of the learned counsel for the appellant, that no rent order was passed on 2-1-1974 and even if the rent order in question purports to have been passed on 2-1-1974 the same was passed without the knowledge of the appellant and his counsel. However, on 18th March, 1974 the appellant and his counsel, when application under section 20 of West Pakistan General Clauses Act, 1956 read with section 151, CPC was moved on behalf of the appellant, they must have come to know about the alleged order dated 2-1-1974 which was on record. The appellant no doubt, has offered no explanation for non-compliance with the rent order after 18th March, 1974 till passing of impugned orders by the learned Rent Controller on 7-8-1974. The learned counsel for the respondent submitted in this connection, that even if the contention of the learned counsel for the appellant, in respect of rent order dated 2-1-1974 are accepted, still in the absence of any explanation for non-deposit of rent in compliance with the said order after its knowledge from 18th March, 1974 till passing of orders dated 7-8-1974 on respondent's application under section 13(6) of the Ordinance, both the Lower Courts were fully justified in allowing the said application. In support of this contention, the learned counsel for the respondent relied on case reported in PLD 1978 Lahore 1032. No doubt, this authority supports the contention of the learned counsel for the respondent but the main question before me is whether the rent order purporting to be dated 2-1-1974 was in fact passed on the said date or the same was obtained by practising fraud by respondent in the absence of the appellant and his counsel as alleged by the learned counsel for the appellant before me and as such it ought to have been recalled, as urged by the learned counsel for the appellant, on the basis of the law laid down in P. L D 1968 Karachi 589, specially when application to that effect was moved by the appellant and in the presence of pars. 4 of the counter-affidavit dated 9-4-1974 of the respondent. In my opinion, the tentative rent order, purporting to have been passed on 2-1-1974, was passed by a Link Judge and in view of the admission of the respondent in para 4 of his counter-affidavit dated 9-4-1974, which was not at all taken into consideration by the learned Rent Controller, while disposing of appellant's application for recalling and setting aside the said order, the learned Rent Controller passed the said order dated 31-7-1974 on appellant's application, without considering the material fact mentioned in para 4 of respondent's counter-affidavit which was before him and as such the said order dated 31st July, 1974 of the learned Rent Controller also cannot be sustained and this question has also not been discussed at' all by the learned Additional District Judge; Karachi in his judgment dated 8-4-1976.

The last contention raised before me, by the learned counsel for the appellant, is that the rent order purporting to be dated 2-1-1974 is factually .incorrect and as such tenant could not be ejected for non-compliance of such wrong order and for this purpose the learned counsel for the appellant relied on case reported in P L D 1978 Karachi 145. This authority clearly supports the contention of the learned counsel for the appellant, who has drawn my-attention to para 3 of the respondent's ejectment application, according to which the arrears were claimed from 1st -July, 1972 though earlier in that very para, it is submitted that appellant was in arrear from 1-3-1972. It is possible that this contradiction in two dates may be due to typing error be as it may, the contention of the respondent in this para that the arrears were due from 1st July, 1972 cannot be overlooked unless the respondent by some evidence or by an application corrected this contradiction in this para, which was not done and as such the contention of the learned counsel for the appellant that the rent order in question was factually incorrect seems to be justified.

In view of the above discussions and conclusions arrived at by me, I am of the opinion, that the learned Rent Controller's rent order purporting to be dated. 2-1-1974 is liable to be set aside as the same was passed at the back of appellant and his Advocate and: further the same is not factually correct for the reasons hereinabove, mentioned by me, and accordingly I hereby set aside the said order and allow the above appeal and consequently also set aside impugned orders dated 7-8-1974 and 8-4-1976 of the learned Rent Controller and IVth Additional District Judge, Karachi respectively and remand back the case to the Court of learned Rent Controller to pass fresh, rent order after giving opportunities to both the parties to establish the alleged actual arrears as well as quantum of rent and thereafter to dispose of the ejectment application in accordance with law or merits.

In view of the circumstances and facts of the above matter, would pass no orders as to costs.

H.B.T./M-297/K Appeal allowed.

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