MESSRS M. A. Yahyas vs MESSRS NAWAB ABDUL MALIK Estates

1. ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave, calls in question the judgment and order passed by a learned Single Judge of the Sind High Court, dated 21-4-1981, affirming the order of ejectment passed against the appellants and dismissing their second appeal.

2. By order, dated 31-5-1981, this Court granted special leave to appeal, in order to examine the appellant's contention "that before striking off his defence he should have been given a proper notice of the allegation of default that he had to meet".

3. The appellants are tenants of the respondents, in Shop No. 48, situate in Dada Bhai Chamber, M. A.

4. Jinnah, Road, Karachi, at a monthly rental of Rs. 268.98. The respondents filed ejectment proceedings against the appellants, on the grounds of default in the payment of rent and damage caused to the premises. It is, however pertinent to mention, that long before the commencement of the ejectment proceeding the Appellant had moved the Rent Controller in September, 1970, vide Rent Case No. 1767 of 1970 and ob--tained an order dated 4-4-1970, for deposit of rent in Court before 5th of each calendar month. Accordingly the appellants kept on depositing rent in Court even before the commencement of proceedings for ejectment against them.

5. On 21-8-1971, the learned Rent Controller passed tentative rent order, directing the appellants to deposit the rent for the month of August, 1971 in Court before 15th of September, 1971 and continue to deposit future monthly rent before 15th of each calendar month. The fact that the appellants had been depositing rent already in Rent Case. No. 1767 of 1970 was duly noticed and accounted for in his order and it was expressly directed that deposit already made in those proceedings be treated as deposit of rent in the ejectment case. On 1-7-1976, the respondents filed application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, alleging "wilful non-compliance with the order of deposit" on the part of the appellants, as no amount was deposited by them "in this case from the beginning." The appellants filed objections to this application, inter alia, averring that they had been depositing rent in Case No. 1767 of 1970 in good faith and had actually deposited rent up to the month of August, 1976, The Rent Controller called for the report of the Nazir of the Court, who confirmed that no deposit at all had been made by the appellants in the account of the ejectment case. The appellants were, however, given a chance to produce the receipts of the amounts deposited by them in Case No. 1767 of 1970, but since in spite of several adjournments obtained by them, they failed to produce the same, ultimately the Rent Controller passed order dated 2-4-1977 striking off their defence and directing them to put the respondents in possession of the premises.

6. Aggrieved by this order, the appellants filed appeal before the District Judge, Karachi, and submitted the account of the deposits made by them in Case No. 1767 of 1970. The learned Additional District Judge, Karachi who eventually heard the appeal found, on a perusal of the account, that appellants had deposited rent beyond the time fixed in the tentative order, i. e. 15th of each calendar month, in respect of the following months :- August1971 deposited on 16-9-1971 November1971 deposited on 16-12-1971 December1971 deposited on 19-1-1972 January1972 deposited on 15-2-1972, and February1972 deposited on 17-3-1972.

7. Finding that the appellants offered no explanation for all these defaults, the learned Additional District Judge held that they had committed wilful non-compliance with the order of the Rent Controller, dated 21-8-1971, and dismissed their appeal, vide his judgment dated 20-8-1978. The second appeal filed by the appellants before the High Court, as already observed, also met the same fate.

8. In support of this appeal, it is argued by the learned counsel that no particulars of the default having been given in the application for striking off their defence, in which only a vague general allegation of non-compliance with the order of deposit was made, the appellants were deprived of a proper opportunity to meet the cuss ultimately made out against them for non--compliance of the order. It is further submitted that the very fact that out of 71 months, a delay of one or two days was found in respect of five months in depositing rent, showed that there was no negligence or wilful default on the part of the appellants.

9. After hearing the counsel, we are of the opinion that there is no force in his contentions. It cannot be denied that the appellants were required to deposit the n3onthly rent, during the pendency of the ejectment proceedings, after the tentative rent order for deposit dated 21-8-1971. In the account of the Ejectment Case No. 1767 rent was admittedly deposited in this account. No fault can, therefore, be found with the application of the respondents for striking off the defence on the ground of non-compliance of the order. It was for the appellants to produce proof in support of their plea that they had regularly deposited rent, in terms of the order, in Rent Case No. 1767 of 1970, even if this was regarded only as a technical non-compliance. However, in spite of opportunity no receipts were produced by them before the Rent Controller. Again when they themselves produced the deposits account in the First Appellate Court, they did not attempt to offer any explanation for the defaults, which they must have observed in the account. On the contrary, their persistent defence was that they had complied with the order of deposit. Before the High Court, the appellants offered a belated explanation that their Advocate, did not inform them that an order for deposit of rent had been passed and had been depositing rent given to him, on his own in the account of Case No. 1767 of 1970. This explanation was rightly rejected by the High Court in the following words: - "If their Advocate had not informed them of the proceedings and they had grievance against the Advocate they would have sought their remedy against him. The appellants have not explained the reason for the delays in the deposit of rent at any time."

10. The fact remains that up to this stage, the delays pointed out by the First Appellate Court, have remained unexplained, Since in fact no amount was deposited in the ejectment proceedings and the appellants, were on notice for non-compliance of the order, in respect of the entire period since the passing of the order, there is no force in the contention that proper opportunity was denied to them to meet the case for non-compliance. The non-compliant of the order thus found to have been established, the order for striking off defence, is unexceptionable.

11. In the result this appeal fails and is accordingly dismissed. The appellants, on their own request, are, however, allowed four months' time to vacate the premises, subject to regular payment of rent.

12. There will be no order as to costs.