PARAMOUNT LINEN Versus SHAGUFTA MUZAFFAR

ORDER

1. . This appeal under section 21 of Sindh Rented Premises Ordinance is against the order dated 2‑11‑1995 passed by IV Rent Controller, Karachi Central in Rent Case No. 116 of 1995 (Met. Shagufta Muzaffar v. Paramount Linen), whereby the defence of appellants/tenants was struck off and they were directed to hand over vacant possession of demised premises (three sheds) to the respondent/landlady within ninety days.

2. Brief facts of the case are that respondent/landlady filed an application under section 15 of the Sindh Rented Premises Ordinance (hereinafter called Rent Ordinance) against the appellants/tenants for their ejectment from Sheds 6,7 and 11 situated on a portion of Plot No. DP‑56, Sector 12‑C, North Karachi Township, Karachi on the ground that the appellants/tenants were defaulter it payment of rent as they after service of intimation as required by section 18 of the Rent Ordinance, did not tender rent from 24‑6‑1994 onwards. The appellants/tenants filed written statement stating therein that no intimation, as required under section 18 of the Rent Ordinance, was served upon them and the mother of respondent had previously filed two rent cases but the same were dismissed and the appellants/tenants had been depositing rent in Miscellaneous Rent Case, therefore, they were not defaulter in payment of rent. The respondent/landlady filed an application under section 16(1) of Rent Ordinance on 4‑4‑1995 and on 2‑5‑1995 a tentative rent order was passed in presence of the counsel for the parties whereby appellants/tenants were directed to deposit rent in Court with effect from 24‑6‑1994 till May, 1995 subject to the adjustment of rent deposited in MRC No.260 of 1991 for the above period in the name of Mst. Qasimun Nisah, the amount be deposited or be adjusted within 60 days and the appellants/tenants were further directed to deposit future rent in the Court on or before 10th of each calendar month, and the case was adjourned to 18‑5‑1995 for affidavit‑in‑evidence of respondent/applicant on which date counsel for the parties were present and the case was again adjourned to 5‑7‑1995 and thereafter adjourned to 18‑7‑1995 for the same purpose but on 16‑7‑1995 respondent/landlady's counsel filed an application under section 16(2) of the Rent Ordinance alongwith her affidavit, the copy of which was supplied to the appellants/tenants on 18‑7‑1995 on which objections were filed on 1‑8‑1995 by the appellants/tenants. After hearing the counsel for the parties impugned order was passed on 2‑11‑1995.

3. I have heard Mr. Badar Alam, learned counsel for the appellants/tenants and Mr. Mubarak Hussain Siddiqi, learned counsel for the respondent/landlord.

4. Mr. Badar Alam for the appellants/tenants has argued that the counsel for the appellants remained hospitalised, therefore, the appellants could not contact him with the result they were unaware of the tentative rent order dated 2‑5‑1995 with the result appellants continued to deposit rent in. M.R.C. No.260 of 1991 (Paramount Linen v. Mst. Qasimun Nisa) and rent for the months of June and July, 1994 was deposited in the said MRC No.260 of 1991, therefore, there was no non‑compliance of the order dated 2‑5‑1995. He has further argued that at the most, there would be technical default as amount of rent was deposited in MRC No.260 of 1991 in the name of Mst. Qasimun Nisa which amount was held to be adjustable in the present rent case and further explanation submitted was not disputed by the respondent/landlord and further the appellants/tenants could not be penalised for their inadvertent mistake. He has placed reliance on Agha Abdul Majeed v. Inam Waris (PLD 1994 Kar. 457), Zafarullah Khan v. Abu Bakar (1995 CLC 23), and Muhammad Yousuf v. Maqbool Ahmad (1985 CLC 2862). He has further argued that as per Exh. A‑1 and Exh. A‑2 amounts of Rs.30,000 and Rs.15,000 were paid as fixed security deposit to original landlady, therefore, rent for defaulted period could have been adjusted from said fixed security deposit. He has placed reliance on Muhammad Yousuf v. Abdullah (PLD 1980 SC 298), Abdul Salam v. Mrs. Tahira Zaidi (1988 MLD 1854), Messrs Mack Industries v. Haji Abdul Karim and 9 others (1986 MLD 1595), and Muhammad Ali v. Syed Asghar Ali Imam (1982 CLC 1030) in support of his contention.

5. Learned counsel in the end has argued that original owner had withdrawn rent from MRC for the months of June and July, 1994 on 17‑7‑1994, whereas the gift was made on 24‑6‑1995, therefore, it could be deemed that compliance of order dated 2‑5‑1995 was made.

6. Mr. Mubarak Hussain Siddiqi, learned counsel for the respondents/landlord has argued that learned counsel for the appellants has not pointed out any defect or illegality in the order dated 2‑5‑1995 passed under section 16(1) of the Rent Ordinance and default in payment of two months' i.e. June and July, 1994 has been admitted and further the plea that the counsel for the appellants was hospitalised therefore appellants could not contact him was not taken in the objections filed by the appellants/tenants hence it would be after‑thought and further the said ground of the appellant could not be considered as good cause to condone non‑compliance of the tentative order under the law. He has further argued that in objections filed by the appellants/tenants it has been stated that appellants came to know about the tentative order dated 2‑5‑1995 after the summer vacation. He has placed reliance upon: ????????

7. M. Fahim v. Mrs. Shamim Tahira and another (1995 CLC 1722), Nazir Hussain v. Nawzish Ali and others (1988 SCMR 190), Azizur. Rahman alias Ajjo Qal‑AI‑Gar v. Sarwat Jehan and 5 others (1987 MLD 2950) and Malik Aman v. Khawaja Abdul Aziz through his Legal Heirs (1987 CLC 425). He in the end has argued that original landlady had only drawn rent upon 23‑6‑1994 the day on which she made gift in favour of respondent/landlady by withdrawing amount of Rs.3,836 only, therefore, it could not be said that compliance of the tentative order was made by the appellants/tenants.

8. Points for consideration in this appeal are:‑‑?

(1) Whether the deposit of rent by the appellants in M.R.C. No.260 of 1991 (Paramount Linen v. Qasimun Nisa) in the case filed by them against the respondent's mother would be due compliance of order dated 2‑5‑1995.

(2) Whether the rent‑ for the defaulted period could be adjusted from the security deposit or from the rent deposited in M.R.C. No.260 of 1991?

9. My answer to the both points would be in the negative. So far Point No.1 reference is made to Mehmood Bashir v. Mubina Begum (1988 SCMR 4271 case where similar point was considered when a tenant has deposited rent in another case filed by him against the landlord's husband and there was failure to deposit rent in terms of tentative rent order. The Rent Controller struck off the defence of tenant holding that deposit in Miscellaneous Rent case could not he accepted a due compliance of rent order, the said order of the Rent Controller was upheld by the High Court and (hen the Supreme Court of Pakistan observed:‑‑‑

10. "No exception can be taken with the view that has prevailed with the learned Rent Controller as well as the learned Judge of the High Court that in spite of the appellant having specifically directed to deposit the arrears of rent and the future rent, he failed to comply with the order, and thus entailed the liability of eviction from the demised premises under subsection (2) of section 16 of Ordinance. "

11. In the instant case tentative order dated 2‑5‑1995 also specifically directed that the appellants/tenants would deposit rent from 24‑6‑1994 till May, 1995 in this Court subject to deposit/adjustment of rent; deposited in Miscellaneous Rent Case No.260 of 1991 within sixty days and future rent to be deposited on or before 10th of each calendar month in the name of respondent/ applicant, this order would show that the appellants/tenants were to deposit rent in the name of respondent/landlady and the arrears from 24‑6‑1994 till May, 1995 were to be adjusted/deposited from MRC No.260 of 1991 within sixty days but the appellants/tenants did not comply with the said order and failed to deposit‑rent in the name of present respondent/applicant Shagufta. The' reason stated by the appellants that they could not contact their counsel who was hospitalised is an afterthought as in the objections no such ground was taken and further it could not be considered good cause for condoning the non‑compliance of order. It was the duty of the appellant to pursue the proceedings of the case and in case counsel could not be contacted, the appellants could have contacted the office of the Rent Controller in the said aspect. Neither the counsel has filed affidavit nor the appellants have filed their affidavit in support of their objections. In Khawaja Ghulam Mustafa v. Mian Waqar Ahmed (PLD 1980 SC 9), the tenant has failed to deposit rent in specific name of landlord suing for ejectment of tenant and whom he specifically accepted as his landlord but deposited the rent in the name of heirs of landlord's father such a deposit of rent was held not in conformity with the Rent Controller's order as such default was held to be deliberate and contumacious and Courts below were held justified in not endorsing validity of such deposit. In view of the aforesaid reasonings and case‑law it can safely be said that there has been deliberate and wilful non‑compliance of order dated 2‑5‑1995 and the deposit made in the MRC 260 of 1991 in the name of Qasimun Nisa could not be considered due compliance of order dated 2‑5‑1995.

12. The next contention of the learned counsel for the appellants/tenants is that rent for the defaulted period i.e. June, and July, 1994 could have been adjusted from the security fixed deposit lying with the original landlady. In Mrs. Zarina Khawaja v. Agha Mehboob Shah PLD 1988 SC 190 the Hon'ble Supreme Court of Pakistan has held that security deposit will be applied in the manner provided in the Agreement and not otherwise. In the instant case it has not been stated in the agreement that security deposit could be applied towards defaulted period of rent, therefore, rent amount of defaulted period could not be adjusted or applied to condone default. So also the rent deposited in another case in the name of Qasimun Nisa cannot be applied and adjusted in the instant case in the name of respondent. In view of the above circumstances/reasons, rent for the defaulted period could not be adjusted and applied from amount of rent deposited in MRC 260 of 1991.

13. In view of the abovesaid reasonings and case‑law, I do not find any merits in this appeal which is hereby dismissed in limine, consequently C.M.A. No.67 of 1996 is also dismissed.

14. In view of the Supreme Court decision cited above, I do not consider necessary to refer and discuss the case‑law cited by the learned counsel for the parties. .

15. However, the appellant is given sixty days' period to vacate the premises subject to deposit of rent for the said period in the Office of the Rent Controller.

16. H.B.T./P‑24/K ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.