MAHMOOD BASHIR Versus MUBINA BEGUM

1. ABDUL KADIR SHAIKH, J.- -This appeal, by leave, is directed against the judgment of a learned Judge of Sind High Court dated 2-10-1983 dismissing an appeal filed by appellant against the order of the Rent Controller, Karachi dated 10-3-1982. By that order, the Rent Controller directed the appellant to hand over vacant possession of the demised shop to respondent/ landlady.

2. The facts of the case briefly stated are that pending final disposal of ejectment application filed by respondent for appellant's eviction, the Rent Controller directed appellant, by the order dated 5-12-1981, to deposit arrears of rent amounting to Rs.1,820 in Court by 18-1-1982 and future rent of Rs.70 per month on or before 10th of each succeeding month. It would be advantageous to reproduce the relevant portion of this order. It reads:

3. "Rate of rent is not disputed which is Rs.70 p.m. The period of arrears from 1-10-1979 to November 1981 (both months inclusive) is also not disputed. The Advocate for the opponent has contended that opponent has deposited rent in Court in Misc Rent Application No.5611 of 1979 but he has admitted that this rent has been deposited by the opponent in the name of one Muhammad Zafar. Admittedly Mr. Zafar is not the applicant in this case. Both the Advocates agree that the rent arrears are amounting to Rs.1,820 for the period from 1-10-1979 to November 1981. This amount of Rs.1,820 be deposited in Court in this case by the opponent. The opponent Bashir will be at liberty to with raw the rent deposited by him in the Misc. application in the wrong name and then he can deposit the amount in this case. I therefore direct that the arrears of Rs.1,820 be deposited in Court in this case by opponent by 18th January, 1982. The opponent is further directed to deposit rent for December 1981, in Court on or before 10th January, 1982, at a rate of Rs.70 p.m. The opponent is further directed to deposit the future rent at this rate of Rs.70 p.m. in Court on or before 10th of each following month."

4. On 25-1-1982 respondent made an application under section 16(2) of Sind Rented Premises Ordinance 1979 for striking off appellant's defence in the case, and his eviction from the demised premises on the ground that appellant had failed to comply with the order of the Rent Controller dated 5-12-1981. Appellant admitted that he did not deposit arrears of rent amounting to Rs.1,820 and rent for December, 1981 in the case between the parties in terms of the order of the Rent Controller dated 5-12-1981, but he pleaded that he deposited the requisite amount in Miscellaneous Rent Application No.5611 of 1979 filed by him against Muhammad Zafar, husband of respondent landlady.

5. Since admittedly appellant failed to deposit arrears of rent and future rent in terms of the clear direction issued by him in the earlier order dated 5-12-1981, learned Rent Controller allowed the application of respondent, and while striking off appellant's defence in the case, directed him, by the order dated 16-3-1982, to hand over vacant possession of the demised premises to respondent. Appellant's appeal against this order was dismissed by learned Judge of Sind High Court by the judgment dated 2-10-1983 as he agreed with the view of the Rent Controller.

6. Leave to appeal was granted to the appellant from the judgment of the High Court to examine the plea raised by him that he having deposited rent throughout in another case filed by him against respondent's husband could not be held guilty of the failure to deposit rent in Court, and also whether the order of the- Rent Controlled dated 5-12-1981 was valid order in law.

7. After hearing the learned counsel for the parties we find that the validity of the order of Rent Controller dated 5-12-1981 is not open to question, for, the Rent Controller was justified in directing appellant to deposit rent in the ejectment case filed against him by the respondent-landlady, on tentative basis under the provisions of subsection (1) of section 16 of the Ordinance. Learned Rent Controller was also justified in refusing to accept the deposit of rent made by appellant in another proceeding initiated by him against respondent's husband as the due payment made by appellant to respondent-landlady. Learned counsel appearing for the appellant before the Rent Controller had himself conceded that "the rent arrears are amounting to Rs.1 , 820 for the period from 1-10-1979 to November, 1981". Since Muhammad Zafar, husband of respondent, against whom appellant filed Miscellaneous Rent Application No.5611 of 1979 was not the applicant in the present case, learned Rent Controller did not recognise the deposit of rent made by appellant in that case, and directed that "the arrears of rent in the sum of Rs.1,820 be deposited in Court in this case". In spite of this specific direction, appellant failed to comply with the order of the Rent Controller by depositing the arrears of rent as well as the rent for December 1981 in the case between the parties. Learned Rent Controller examined the plea raised by appellant that he had deposited the arrears of rent in Miscellaneous Rent Application No.5611 of 1979 and the default committed by him was only of technical nature, but he rejected this plea for the reasons that may be reproduced in his own words:

8. "It is true that the opponent has deposited rent arrears in Court before 10th January, 1982 in Miscellaneous rent application but his deposit cannot be accepted as compliance of the rent order. It was clearly mentioned in the rent order that the opponent could withdraw the amount deposited by him in Misc. rent application No.5611 of 1979 and then he can deposit the arrears in Court in this case by 18th January 1982 but he has failed to do so in spite of the period of 44 days given to him. The opponent has even not deposited the rent for December 1981 in this case on or before 10th January 1982 as is clear from Nazir's report dated 25-1-1982 which clearly shows that till 25-1-1982 the opponent neither deposited the rent arrears in Court nor the rent for December 1981 in terms of the rent order dated 5-12-1981. Hence the default is wilful and no leniency can be shown to the opponent for this wilful default in complying the rent order dated 5-1.2-1981. The opponent has given no reason for non-compliance of the rent order."

9. On this aspect, learned Judge in the High Court observed as follows: --

10. "The very reading of the order dated 5-12-1981 shows that the Rent Controller had made a definite direction to the appellant to withdraw the rent from Misc. 5611 of 1979 which he had deposited in the wrong name, and had given sufficient time to the appellant from 5-12-1981 to 18-1-1982 to do the needful. There is nothing wrong in that order of the Rent Controller. It was fair and reasonable order and the appellant should have complied with the same, but he failed to do so. Not only that he had failed to withdraw the rent from Misc. 5611 of 1979 and deposit the same in the name of the present respondent in proper proceedings, but he further adopted a very unreasonable and unfair attitude by continuing to deposit the rent of December 1981 in the same Misc. proceedings 5611 of 1979 on 7-12-1981 and then again doing the same on 10-1-1982. To say the least the appellant had continued to act1B under his own will and incomplete disregard and defiance of l the order of the Rent Controller dated 5-12-1981.

11. Even if there was some initial justification for deposit of rent in the name of Zafar who is the husband of the present respondent still that justification was completely gone after the order was passed by the Rent Controller on 5-11-1981. The result is that it was not a mere technical compliance with the order of the Rent Controller dated 5-12-1981 but a1C contumacious insistence on the part of the appellant that had will continue to do as he liked in spite of the order of the Rent Controller."

12. No exception can be taken with the view that has prevailed with the learned Rent Controller as well as the learned Judge in the High Court that in spite of the appellant having been specific call 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 the Ordinance. There is therefore ,no merit in this appeal and it is dismissed with costs.

13. M.I. /M-293/S Appeal dismissed.