MUHAMMAD RAFIQUE Versus GHULAM MUSTAFA

The only question arising in this appeal; whether the learned Rent Controller by his impugned order dated 29-4-1986 has rightly struck off the defence of the appellant under section 16(2) of the Sind rented Premises Ordinance, 1979 (hereinafter called the Ordinance).

2. The respondent filed an application for eviction against the appellant on the grounds of default and personal need in respect of demis ed premises. In para 3 of the ejectment application he specifically pleaded that the appellant who was already known to him approached him with a request to put him in possession of his shop on Plot No.A-22/3, Sikandarabad, Liaquatabad, Karachi, as he wanted to start hair-cutting saloon therein. In para 4 of the application he pleaded that 15 years back the a ppellant was also inducted into possession of the shop on the said plot as tenant on monthly rent of Rs. .100 payable on the first of each and every calendar month pursuant to an oral agreement of tenancy. In his written statement the appellant admitted the contents of para 3 of the application. He also partly admitted the contents of para 4 of the application and partly denied the same in respect of the rate of rent. According to the appellant the rate of rent was Rs. 60 per month and not Rs. 100 per month. The learned Rent Controller vide his order dated 13-5-1984 passed on an application of the respondent made under section 16(1) of the Ordinance, ordered the appellant to deposit arrears of rent from March 1979 at the rate of Rs. 100 uptill April 1984 amounting to Rs. 6,200 on or before 15th August, 1984. He further directed the appellant to deposit future rent at the same rate on or before 10th of every subsequent month until further orders. The learned Rent Controller further directed for the facility of the appellant that the respondent would be entitled to withdraw amount from the arrears of rent and future rent, if deposited, to the extent of Rs. 60 per month and balance of Rs. 40 per month would remain lying until final disposal of the application. On 11-4-1985 the respondent made an application under section 16(2) of the Ordinance for striking off the defence of the appellant as he had failed to comply with the aforesaid order for depositing the rent. The appellant filed objections to the said application stating that the respondent is not the landlord of the premises. The owner of the premises is his real brother Ghulam Muhammad on whose behalf he was collecting the rent to whom he had been paying rent and was holding rent receipts at the rate of Rs. 60 till April 1986. He also stated that Suit No. 62/81 was pending before the Court of Senior Civil Judge (South) between the parties, namely, the respondent and his brother Ghulam Muhammad, regarding ownership of the property. The learned Rent Controller vide his impugned order allowed the above application made under section 16(2) of the Ordinance as stated above, hence this appeal.

3. I have heard the learned counsel for the parties and have perused the relevant record. In view of the fact that the appellant had in his written statement specifically admitted that he was tenant of the respondent hence the latter objections filed by him denying the relationship of landlord and tenant were of no L legal affect. In his impugned order the learned Rent Controller has observed that the rent order was passed in the presence of the appellant as per the diary sheet dated 13-5-1984, on the basis of the admission of the appellant in his written statement. He, therefore, held that the appellant had wilfully failed to comply with the order of the Court and since no rent had been deposited as was evident from the report of the Nazir, he had no alternative except to strike off the defence of the appellant and direct him to hand over the possession of the disputed premises to the respondent.

4. Under the aforesaid facts and circumstances of the case no exception can legitimately be taken to the impugned order. I do not, therefore, find any substance in this appeal and dismiss it accordingly.

5. However, since the appellant is carrying on his business in the demised premises I could allow him tree months' time from today to vacate and hand over the vacant possession of the demised premises to the respondent, failing which the writ of possession will be issued without notice to him. The above are the reasons for the short order of dismissal of appeal passed on the conclusion of I the arguments of the parties' counsel today.

M.Y.H./M-469/K Appeal dismissed.