AKHTARI BEGUM Versus MUHAMMAD YAMIN

1. This First Rent Appeal is directed against the impugned order dated 26‑5‑1984 of learned VII‑Rent Controller, Karachi whereby defence has been struck off and in consequence eviction has been ordered.

2. Briefly stated the relevant facts giving rise to this appeal are that appellant is a tenant and respondent is a landlord (hereinafter to be referred as such)in respect of a portion of the house described in the application for ejectment. Landlord filed an application under section 15 of the Sind Rented Premises Ordinance, 1979 for ejectment on the ground of default. Tentative rent order was passed by the Rent Controller on 14‑7‑1981. Since tenancy and rate of. rent were admitted, tenant was directed in .the Rent Order to deposit arrears of rent at the rate of Rs.505 per month from 1‑6‑1980 to 30‑6‑1981 amounting to Rs.6,565 in the Court on or before 10‑8‑1981. Tenant was further directed to deposit future rent at the rate of Rs.505 per month in the Court on or before 10th of subsequent month.

3. Landlord filed an application for striking off defence on 10‑12‑1983 on the ground that there was non‑compliance by the tenant with the Rent Order and directions contained therein were not being properly followed. Specific allegation was made that rent for 41 months amounted to Rs.20,665 but the tenant had deposited only Rs.19,150 hence rent for 3 months was not deposited. Tenant filed counter affidavit of objections in which default has been admitted but further averment is made that default was neither wilful nor deliberate as would be evident from 26 receipts which were annexed with the counter‑affidavit to be produced in the Court. It is further stated that tenant being an old and illiterate woman could not maintain correct rent account and sometime she used to deposit rent for two months sometimes even more. On the back of application for striking off defence there is report from Nazir which shows that tenant had deposited Rs.19,694.

4. Grievance of the tenant is that while hearing of application for striking off defence was going on, an application was filed by the tenant on 30‑4‑1984 under section 20 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as the said Ordinance) in which request was made for summoning Nazir in the Court for the purpose of examination and production of Ledger, as there appeared discrepancies .in his report. The Court ordered notice and hearing of this application as well. On 19‑5‑1984 Counsel of landlord was present and none was present for the tenant. Arguments were heard on application under section 16(2) of the said Ordinance for striking off defence and the matter was put off to 26‑5‑1984 for orders. It appears from the Order sheet of that day that tenant filed an application for adjournment which was dismissed at 2‑00 p.m. on 26‑5‑1984 impugned order of eviction consequent upon striking off' defence was passed.

5. Since grievance of the tenant appeared to be reasonable to the extent that she was not heard and the impugned order was passed behind her back and further that her application for calling of Nazir in the Court was still pending and the final order was passed without granting or rejecting .that application, I had set aside the impugned order, and remanded the case to the Rent Controller for holding further enquiry as contemplated under section 21(3) of the said Ordinance. Learned Rent Controller was directed to examine Nazir in the Court and allow production of receipts by the tenant and after such enquiry send the report back to this Court with finding whether default was committed or not in compliance with tentative Rent Orders alleged by the. landlord. The case has come back from the. Court of the Rent Controller with report dated 24‑10‑1985.

6. According to the report after enquiry as directed by this Court the Rent Controller has come to the conclusion as under:‑‑

7. "The rent for June, 1982 was deposited by opponent on 7‑8‑1982 instead of 10th July, 1982 thus default in payment of rent has been committed by the opponent for June, 1982. Again rent for July, 1982 was deposited by opponent in time on 7‑8‑1982 along with rent for June, 1982 vide rent receipt bearing No. 8694 Exh.

16. The Rent receipts produced by the Nazir Exhs. 17 to 27 show that again opponent has failed to comply with the rent order passed on 14‑7‑1981 and rent for the month of August, 1982 was deposited on 14‑9‑1982 instead of 10‑9‑1982. In the same way rent for ‑September 1982 was deposited on 20‑10‑1982 instead of 10‑10‑1982 and so forth so on for the subsequent months opponent deposited rent after expiry of required time and. thus has violated the rent order dated 14‑7‑1981. Besides the rent receipts produced by the Nazir as Exhs. 6 to 27, I found four more photostat copies of the rent receipts filed by opponent alongwith his objection dated 14‑3‑1984 to the application under section 16(2) of the said Ordinance. From these photostat copies of rent receipts dated 7‑1‑1984, 22‑1‑1984, 23‑2‑1984 and 17‑3‑1984 it cannot be concluded that amounts deposited through these receipts were for what months and whether the same were deposited in time or not. Even otherwise under this report I need not want to discuss these rent receipts as in view of above discussion and the figures given above, default in payment of rent has already been committed by the opponent tenant in violation of the rent order, dated 14‑7‑1981".

8. I have heard again learned counsel appearing for the parties after the receipt of report from the learned Rent Controller. Mr. M.S. Kizilbash, Advocate for the tenant could not take any exception to the finding of the Court below as the same was given after proper hearing to both parties by the Rent Controller and tenant was allowed to produce the documents she wanted to produce and Nazir was also examined. It was submitted by Mr. M.S. Kizilbash, Advocate that the default should be treated as technical in nature. This cannot be done for the reason that it is not a question of one solitary default or a couple of occasional defaults but it appears from the record that there are several defaults and directions in the tentative rent order were not followed which are supposed to be followed in letter and spirit. Language used in section 16 of the said Ordinance is very clear that this provision is mandatory in nature and on account of non‑compliance with the rent order, the Rent Controller has no other option but to strike off the defence and put back the landlord into possession. It is, therefore, very clear that tentative rent order is to be complied with very rigidly because the consequence of non compliance is very serious and would result into straight eviction. No doubt tenant in this case is a woman but she has had legal assistance of a counsel. She should have known as to what are actual directions contained in the rent order and how and when arrears of rent and rent for each month had to be deposited. In the circumstances and for the facts and reasons stated above I do hot find any reason to interfere and dismiss the appeal. There will be no order as to costs. Tenant is directed to hand over vacant possession of the premises within two months from the date of announcement of this judgment.

9. H.B.T./A‑216/K Appeal dismissed