NOOR JEHAN Versus IQBAL AHMAD KHAN

ORDER

1. This appeal was tiled on 16-5-1988 alongwith an application for stay made under section 21(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter called `the Ordinance'). Both the appeal and the stay application were fixed for Katcha Peshi and orders in Court on 26-5-1988, when the Court passed the following order:--

2. "Mr. Arif Hussain Shah, Advocate.

(1) The learned counsel contends that the order for deposit of arrears of rent is not legal as the determination of arrears of rent has been left to the appellant by adjusting the amount deposited in Miscellaneous rent case.

3. Admit. Notice.

(2) The impugned order is stayed. Notice

4. Sd/-

5. Judge."

6. No counter-affidavit has been filed to the affidavit filed in support of the stay application under consideration. In the affidavit filed in support of this application the factual aspects of the case with regard to the rate of rent and the period of default are not disclosed. At any rate, the learned Rent Controller has struck off the defence of the appellant by an order passed under section 16(2) of the Ordinance with the remarks; `the opponent had neither deposited complete arrears of rent nor deposited the future rent' as per tentative order dated 24-1 1988 passed by him on application under section 16 (1) of the Ordinance. It is not disputed by the learned counsel for the appellant that the amount of rent has not been deposited pursuant to the above order passed by the learned Rent Controller'. He, however, submitted that the learned Rent Controller's order was contrary to the legal provisions and that it was passed without making summary inquiry as is contemplated under law and/or even after taking into consideration the legal objections raised by the appellant against the maintainability of the ejectment application itself, as held by this Court in the case reported in PLD 1985 Kar. 741.

7. The learned counsel for the appellant also cited several other authorities before me to contend that the non-compliance of the tentative order under the facts of this case, had not rendered the defence of the appellant being struck off under section 16(2)of the Ordinance. Lastly, he submitted that since the appeal has been admitted to regular hearing, and an ad interim order of stay has already been granted, it would cause irreparable loss to the appellant if it is not confirmed.

8. Mr. A. Majeed Khan, learned counsel for the respondent on the other hand, vehemently opposed the confirmation of the ad interim order of stay by placing reliance on the two decisions of this Court reported in 1986 CLC 1613 and 1987 MLD 877, wherein a view contrary to the view expressed in PLD 1985 Kar. 741, has been, after due consideration of the said authority, taken. The latter two decisions of this Court relied upon by the learned counsel for the respondent have been passed by the two other learned Judges of this Court. After going through the above three authorities cited at the Bar, I also tentatively held the same view as has been enunciated in the latter above two reported decisions. Be that as it may, it is evidently clear from the order of the learned Rent Controller dated 24-1-1988 passed under Section 16(1) of the Ordinance that it yeas based upon appreciation of the material which was then available on record in the form of affidavits of parties as well as the affidavits of five other persons filed on behalf of the respondent. Moreover, in the concluding part of the said order he also directed that the rate of rent and the period for non-payment of rent is in dispute. He, therefore, directed the applicant not to withdraw rent from October, 1986 upto 1987. The applicant was, however, allowed to withdraw the rent at the rate, of Rs. 900 p.m. from November, 1987 onwards.

9. Under the aforesaid facts and circumstances of the case I would confirm the ad interim order of stay, subject, however, to the deposit of rent as per tentative order of the learned. Rent Controller dated 24-1-1988 for the entire period ending on 30-i1-1988 within three months minus the sum of Rs. 5,400 deposited in the Court of Rent Controller in Misc. Rent Case No. 1149/87. The future monthly rent at the rate of Rs. 1,650 with effect from 1-12-1988 shall also be paid by the 10th of every subsequent month till the disposal of the appeal. The rent for the month of December, 1988 at the rate of Rs. 1,650 shall be paid by' 10th of January, 1.989.

10. M.Y.H./N-188/K

11. Ad interim order confirmed.