AGHA KHAN FOUNDATION Versus HAKIM AND CO.

1. This First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 is filed by the appellant landlord against the order of Rent Controller, dated 23‑5‑1982 rejecting the ejectment case instituted by the appellant against the respondents on the sole ground of default in payment of rent.

2. In the rent application the default is alleged against the respondents from August, 1976 till the filing of rent case which was instituted on 11‑2‑1980. In the written statement the respondents denied the default and asserted that the rent is being deposited by them in a Miscellaneous Rent Case in advance. The appellant examined rent collector Akhtar Ali, who stated in his affidavit of evidence that the respondents have committed default from August, 1976. He denied in the cross-examination the suggestion made to him that the rent was being deposited in advance by the respondents. The respondents in support of their contention examined their manager Muhammad Akram who in his affidavit of evidence alleged that the respondents are depositing not only the rent due but as an extra caution have also deposited rent in advance for several months on a number of occasions. The Rent Controller in his order reached the conclusion that as the ejectment case is based on the allegation of arrears of rent which have become time‑barred, therefore, the rent application could only be pressed for the period from 11‑2‑1977 to 11‑2‑1980. It is not disputed that the Nazir's report produced before the Rent Controller shows deposit of rent by the respondents from May, 1975 but it has not been decided by the Rent Controller whether the rent from 11‑2‑1977 to 11‑2‑1980 were deposited regularly. Learned counsel for the respondents contends that the first deposit of Rs.500 made on 1‑9‑1975 represented rent from September, 1975 to December, 1975 and thereafter, while appellant contends that the deposit made on 1‑9‑1975 was for May, 1975 to August, 1975, subsequent deposits 'were made for subsequent months. However, the Rent Controller did not advert to the above contention of the parties and made a sweeping observation in his judgment that the rent is being deposited in advance by the respondents. The Rent Controller also stated in his order that as the rent application could not be

3. Instituted for the default alleged to have been committed for the period prior to 1977, therefore the rent deposited from May 1975 to January 1977 should be treated as advance rent towards future rent. This observation of the Rent controller is wholly unwarranted as the rent having been deposited in the name of the landlord with the tent controller could be appropriated at any time by the landlord. The crucial controversy before the Rent controller was whether the deposits which were shown in the Nazir s report were for the period which the respondents alleged or they represented the period as contended by the appellant which the controller failed to resolve. I accordingly accept this appeal set aside the order of the rent controller and remand the case back to the rent controller with the direction to give a clear finding whether any default has been committed for the period from 11-1977 to 11-2-1980 after taking into account the deposits made by the respondents from May, 1975 in the Miscellaneous rent case. However, there will be no order as to costs.

4. H.B.T Order accordingly.