SAEED AKHTAR Versus RABIA AKHTAR
ORDER
1. By order dated 4‑10‑1992 passed by this Court, the appellant was directed to continue to deposit the monthly rent as ordered by the Court. It was further ordered that C.MA. No. 631 of 1992 was to be heard alongwith the main appeal which may be fixed for hearing after four months. C.MA. No. 631/92 was moved by the appellant to the effect that the operation of the impugned order may be suspended till the final disposal of this appeal.
2. Present C.M.A. No. 1194/93 has been moved by the respondent praying therein that the defence of the appellant may by struck off and the stay order in respect of the operation of the impugned order may be vacated, as the appellant has failed to deposit the monthly rent in accordance with the order of the learned Rent Controller. The report of the Nazir is placed on record.
2. Counter‑affidavit has been filed by appellant Seed Akhtar Malik who reiterated that there had been no default in compliance with the order passed by the Rent Controller for deposit of the arrears of rent and future monthly rent. He further pleaded that charges in respect of the electricity and gas bills were also to be adjusted towards the monthly rent. It was also submitted that the appellate Court had no power to strike off the defence of the appellant.
3. Mr. Rehanul Hassan Farooqi, learned counsel for the respondent submitted that the appellant was required to deposit monthly rent with the Nazir of the Rent Controller before 10th of each calendar month. Mr. Farooqi, invited my attention to the report of the concerned Nazir which inter alia indicated as under:‑
4. "10‑4‑1993 Rs.2,000
5. 27‑6‑1993 Rs.2,000
6. 18‑7‑1993 Rs.2,000
7. 11‑10‑1993 Rs.2,000"
8. Mr. Farooqui pointed out that after the deposit of rent on 10‑4‑1993, he appellant was required to deposit ensuring rent on or 10‑5‑1993 and 10‑6‑1993 but no such rent was deposited and, the deposit was made on 27‑6‑1993. There after the rent was to be deposited on or before 10‑7‑1993 but the same was deposited on 18‑7‑1993. Thereafter no rent was deposited on or before 10‑8‑1993 10‑9‑1993, and 10‑10‑1993, but the same was deposited on i1‑10‑1993. According to Mr. Farooqui the appellant had flagrantly violated the directions of the lower Court in respect of the deposit of monthly rent, hence his defence was to be struck off and the appeal was liable to be dismissed.
9. On the other hand, Mr. Waheed Farooqui, learned counsel for the appellant invited my attention to some receipts filed along with the counter- affidavit of the appellant. I have carefully gone through those receipts issued by the Nazir of the relevant Court, but the same do not indicate that the rent for the abovementioned period was duly deposited with the Nazir within the due date. So also there is nothing to indicate that the order of the learned Rent Controller envisaged the adjustment of the electricity and gas bills towards the monthly rent which was to be deposited with the Nazir. The report of the Nazir indicates that the appellant had been depositing monthly rent at the rate of Rs.2,000 per month without any protest, or without adjusting the payment of electricity and gas bills towards the said amount of monthly rent.
10. Mr. Waheed Farooqui vehemently contended that the appellate Court had no power to strike of the defence of the appellant on the ground that he had failed to deposit the monthly rent with the Nazir. He also contended that the Court never passed an order that the appellant had to deposit the monthly rent with the Nazir as directed by the Rent Controller. Reliance is placed on 1983 CLC 613 (Qadir Khan v. Mst. Kishwar Begum and others), whereby it was held that the tentative order in respect of the deposit of the arrears of rent and the future rent could not have been passed without resolving the issue of landlord and tenant-ship between the parties. Obviously this authority is not applicable to the facts of the present case as no such dispute in respect of the landlord-ship and tenantship exists between the parties. Reliance is also placed on PLD 1980 Lahore 302 (Sh. Bashir Ahmad v. Nazir Ahmad and another) whereby it was held that security amount adjustable towards rent was to be considered at the time of passing of the order for deposit of arrears of rent and the same is to be considered at the time of determination of default for non compliance of the order. According to Mr. Waheed Farooqui, the appellant had been paying electricity and gas charges and the same were to be adjusted towards the payment of monthly rent. I do not find any force in this contention as the learned Rent Controller discussed this point in the impugned order and gave the finding that the appellant had failed to establish that there was any agreement between his and the respondent regarding the payment of electricity and gas charges and their adjustment towards the payment of monthly rent. For the same reasons the authority quoted as 1982 CLC 2193 (Masjid‑e Humra v. Zamir Ahmad) is not applicable to the facts of the present case. Reliance is also placed on PLD 1963 Lahore 436 (Jalal Din and another v. Azizudin and another) whereby a Single Judge of the Lahore High Court observed that the appellate authority had no power to strike the defence of the tenant for non‑compliance of the tentative order passed by the Rent Controller under section 16(6) of the West Pakistan Urban Rent Restriction Ordinance.
3. On the other hand Mr. Rehanul Hassan Farooqui invited my attention to an unreported judgment dated 28‑4‑1991(Abdul Saleh v. Aziz and others) in F.RA. No. 279 of 1990 whereby a Single Judge of this Court (Syed Abdur Rehman, J) dealing with proposition if the appellate Court had the power to strike of the defence or not, observed as under:‑
11. "Mr. Rehanul Hassan Farooqui, learned counsel for the respondents has contended that the defence of the appellant should be struck off and has placed reliance on the recent decision of the Supreme Court in the case of M. Imamuddin v. Surriya Khanum reported in PLD 1991 SC 317, wherein it was held that `passing of order of tentative rent having been upheld by the Supreme Court, the non‑compliance there of would entail striking off the defence of the tenant in terms of section 13(6) of the late Ordinance". Hence relying upon the case of Ghulam Muhammad Khan Lundhkhor v. Safdar Ali (PLD 1967 SC 530) in which it has been held that" in the absence of any reasons beyond the control of tenant, non‑compliance of a tentative rent order will entail striking off the defence," the Supreme Court struck off the defence of the tenant.
12. Under these circumstances C.MA. No. 256/1991 is granted, the stay order passed on 25‑11‑1990 is vacated and the defence 4f the appellant is struck off. Accordingly C.MA. No. 256/1991 and the FRA, stand disposed of."
13. In view of the above `observations of the learned Single Judge of this Court, I am of the view that the appellate Court has the power to strike off the defence of a tenant who has failed to deposit the arrears of rent and the future monthly rent in accordance with the orders passed by the Rent Collector under section 16(1) of the Sindh Rented Premises Ordinance, 1979.
4. I also do not find any force in the contention of Mr. Waheed Farooqui that this Court never directed the appellant to deposit the arrears of rent and the monthly rent in accordance with the orders of the learned Rent Controller. It would be advantageous to reproduce the orders passed by this Court on 4‑10‑1992 which was passed in connection with the stay application being C.MA. No. 631/1992 moved by the appellant for the suspension of the impugned order. The order runs as under:‑
14. "By consent it is ordered that C.MA. No. 631/92, as well as the main appeal may be fixed for hearing after four months and the appellant should continue to deposit the monthly rent as ordered by the Court:"
15. Obviously as a result of the above order, the appellant was directed to continue to deposit the monthly rent as ordered by the Court of the Rent Controller. As no such order was passed by any other Court excepting the Court of Rent Controller.
16. Under the circumstances, I have come to the conclusion that the appellant has failed to deposit the monthly rent in accordance with the directions of the learned Rent Controller for the period mentioned above. Accordingly C.MA. No. 1194/93 is hereby granted and the defence of the appellant is struck off. Stay order granted on 3‑6‑1992 is hereby vacated. Consequently the main IRA and C.MA. No. 631/92 also stands deposed of. The appellant is directed to hand over the vacant possession of the premises in dispute to the respondent within one month of the date of this order.
17. H.B.T./S‑1063/K Order accordingly.