MUHAMMAD SHAFI Versus S. M. ENAMAL HAQ

This is a First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) against the orders, dated 5‑1‑1984 and 16‑2‑1984 passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi in Rent Case No. 3982 of 1982 striking off the defence of the appellant and directing him to vacate the premises within two months from the date of the order.

2. The facts leading to the present appeal, briefly stated are that the appellant is a tenant of respondents in respect of a shop premises on a monthly rent of Rs.225. The respondents filed an ejectment application under section 15 of the Sind Rented Premises Ordinance, 1979 against the appellant on 27‑9‑1982 on the ground of default in payment of monthly rent.

3. The learned Rent Controller passed an order under section 16(1) of the Ordinance on 12‑2‑1983 directing the appellant to deposit future rent at the rate of Rs.225 on or before 10th of each month. On 7‑5‑1983 the respondents filed an application under section 16(2) of the Ordinance for striking off the defence of the appellant as he has failed to deposit the rent as ordered on 12‑2‑1983. The appellant on 15‑5‑1983 filed his objections to the said application stating that he has been depositing the rental amount in the Court vide Miscellaneous Rent Case No. 4217/82 and that he was not in arrears of the rent. The learned Rent Controller called for a report from the Nazir and passed an order on 5‑1‑1984 whereby he struck off the defence of the appellant holding that the rent for the month of May, 1983 was deposited by the appellant on 12‑6‑1983 instead of 10‑6‑1983 (wrongly typed as 10‑5‑1983). The appellant thereupon filed an application under section 20 of the West Pakistan General Clauses Act read with section 151, C.P.C. for reviewing the said order which was dismissed by the learned Rent Controller by his order, dated 16‑2‑1984.

4. 1 have heard Mr. A.Q. Malik‑, learned counsel for the appellant and Mr. Jamilur Rahman Khan, learned counsel for the respondents.

5. At the outset it may be mentioned that the appeal against the order, dated 5‑1‑jL984 is clearly time‑barred as the same has been filed on 5‑3‑1984. The provisions of section 5 of the Limitation Act do not apply to the proceedings under the Ordinance as held by my learned brother Naimuddin, J. in the case reported as Syed Muhammad v. Mazhar Ali Khan P L D 1981 Kar. 76.

6. Now there arises the question of maintainability of the application under section 20 of West Pakistan General Clauses Act read with section 151, C.P.C. filed by the appellant. In view of the Supreme Court pronouncement, there can be no cavil that the Rent Controller is not a civil Court, and therefore, the provisions of section 151, C.P.C. cannot be pressed into service. Section 20 of the West Pakistan General Clauses Act is also not applicable in the present case inasmuch as under section 19(2) of the Ordinance of 1979, the power to rescind the ex parte order by the Controller is specifically barred. The application for review was thus entirely misconceived.

7. The learned counsel for the appellant, however, submitted two‑fold arguments to wipe of the default; firstly, that the appellant was sick on 11‑6‑1983 and as such he could not deposit rent on that date. In proof, he relied on a medical certificate, dated 11‑6‑1983 produced by him alongwith memo. of appeal and secondly, that there was no default in payment of rent for the month of May, 1983 as he was depositing the rent in advance.

8. As regards his first contention, the same is entirely untenable. He did not take the plea of being sick on 11‑6‑1983 in the Lower Court. In fact he offered no explanation for depositing the rent on 12‑6‑1983. Furthermore, he did not make any application under section 21(3) for producing this additional evidence, nor he has shown any reason, during the course of his arguments, for taking this additional evidence at this stage. 1, therefore, reject this plea. As far as the second contention is concerned the same is also untenable in law as he neither took the said plea before the learned Controller nor this plea has been taken in the memo of appeal. His entire case as per grounds taken in the memo. of appeal is that the appellant could not deposit the rent on 11‑6‑1983 as he was ill and further that there was vacations during the month of June and as such the appellant could have deposited the rent on 10‑7‑1983 as the Courts reopened on 10‑7‑1983. Besides, this plea is not borne out of the record. On 12‑2‑1983 he was ordered to deposit future rent on 10th of every succeeding month. There were no arrears of rent due as on 12‑2‑1983. The rent upto the month of January, 1983 stood already deposited on 10‑2‑1983 in Miscellaneous Application No. 4217 of 1982. He was required to deposit the rent for the month of February, 1983 by the 10th of March, 1983 which he deposited on 10‑3‑1983 and so the rent for the month of March and April, 1983 was deposited on 10‑4‑1983 and 10‑5‑1983 respectively. The rent for the month of May, 1983 was then deposited on 12‑6‑1983 in respect of which the learned Rent Controller held that there was a default.

9. The learned counsel for the appellant has made out no case in law or on facts. The appeal, therefore, fails which is accordingly dismissed but, in the circumstances, there will be no order as to costs.

H.B.T Appeal dismissed