TUFAIL MUHAMMAD Versus BURHANUDDIN

1. This First Rent Appeal is directed against the order dated 22nd September, 1988 of IVth Sr. Civil Judge and Rent Controller Karachi East, by which the Rent Controller has struck off the defence of the appellant on the ground that there is non-compliance of the tentative rent order. The rent case was filed on 1-7-1987 on the ground of default in payment of rent and other grounds. The respondent/landlord moved an application under section 16(1) on the same day i.e. 1-7-1987 in which he has stated that appellant be directed to deposit Rs. 380 being arrears of rent for May and June 1987 plus electricity charges amounting to Rs. 380 only. The notice was issued to the other side and objections were filed by the appellant in which he has stated that he tendered the rent by money order which was refused by the respondent thereby from May, 1987 he is depositing rent in Misc. Rent Case No. 740/87. The objections were filed on 15-11-1987. The Rent Controller after lapse of 10 months of filing of the rent case passed an order under section 16(1) by which some adjustment was allowed to the appellant and directed him to deposit Rs. 1,092 within 15 days from the date of order. He further directed to deposit monthly rent and electric charges.

2. Respondent on 2-4-1988 filed an application under section 16(2) of the Ordinance to which appellant filed objections and finally his defence has been struck off.

3. I have heard Mr. Umar Farooq for the appellant. It is contended that very rent case on the ground of default is not maintainable as appellant sent money orders which were refused thereby he is depositing rent in the Misc. Rent Case. It is contended by the learned counsel that in case the application is not maintainable all subsequent orders are illegal. It is also submitted that Rent Controller has not applied his mind properly while passing order under section 16(1).

4. Mr. Farman A. Hashmi appearing for the respondent submitted that order of the Rent Controller has not been complied with by the appellant as he failed to deposit Rs. 1,092 on the date fixed by the Rent Controller and also there is default in future monthly rent.

5. I have gone through the record. The Rent Controller while passing order under section 16 (1) had not called report from the Nazir nor there is anything in the objections in respect of adjustment. He has relied on the oral arguments of both the counsel and passed the tentative rent order by which he has given benefit of adjustment for Rs. 600 to the appellant. This amount was withdrawn by the respondent. On the perusal of the record it appears that appellant has also deposited some amount on 10-12-1988, 10-1-1988 and 10-2-1988 but no adjustment of this amount was allowed by the Rent Controller. The case of the appellant in the objections was that up to 3rd March, 1988 he deposited Rs. 1,500 more than the amount he was directed to deposit. This point has not been dealt with by the Rent Controller in impugned order dated 22-9-1988. From the circumstances stated above it is clear that order under section 16 (1) is defective as no proper summary enquiry was held as required under section 16(1). The order under section 16(2) is based upon the order under section 16(1). I therefore allow the appeal and set aside the order and remand the case back to the Rent Controller who should decide the rent case within 3 months.

6. By consent, the parties have agreed that they will appear before the Rent Controller on 10-2-1989 to produce their evidence.

7. M.Y.H./T-55/K

8. Case remanded.