MOHAMED NASIR FAROOQI vs Mst. ZUBAIDA and 2 others

' The appellant has called in question, the order passed by the learned Additional Controller of Rents (Cantonment), Karachi, dated 9-10-1990, striking off the appellant's defence under section 17(9) of the Cantonments Rent Restriction Act, 1963 for non-compliance with the tentative rent order.

2. It may be pointed out that the appellant, who was the respondents' respondent in the demised premises, had been depositing rent at the rate of Rs,10,000 per month with the learned Controller, (South) Karachi, with effect from April, 1988. Vide order dated 11-8-1990, the learned Additional Controller of Rent, Cantonment, directed the appellant to withdraw the rent so deposited by him and deposit the same before the Controller, Cantonment, before 5-9-1990.

The appellant was further directed to deposit rent for the month of September, 1990 and that falling due for the subsequent months on the 5th of each succeeding month.

3. On 15-9-1991, the respondent filed an application under section 17(9) of the Cantonments Rent Restriction Act, requesting the learned Additional Controller to strike off the defence of the appellant on the ground of noncompliance with the tentative rent order, as, according to the respondent, the appellant had failed to deposit rent with the learned Controller of Rents as earlier directed. The learned Additional Controller thereafter, vide order dated 15-9-1990 directed the Court's accountant to submit a detailed report in respect of the application. The case was then adjourned by him to 9-10-1990. On 9-10-1990 after getting report from the Courts accountant, which showed that the appellant had failed to deposit rent in terms of the tentative rent order dated 11-8-1990, struck off the appellant's defence by an order passed on the same date and directed the appellant to vacate the premises and hand over their vacant possession to the respondent within thirty days of passing of the order.

4. It is an admitted position that the aforesaid order was passed by the learned Additional Controller without affording an opportunity to the appellant to explain the alleged default. The case of the appellant is that he had filed an application before the learned Rent Controller, (South)

Karachi where he had earlier deposited rent for the demised premises upto August, 1990, to allow the appellant to withdraw the rent therefrom and deposit the same before the Rent Controller Cantonment as per his order dated 11-8-1990. Notice in respect of this application was ordered to be issued to the respondent for 31-10-1990 but before the application was to be heard. The impugned order was passed by the learned Additional Controller on 9-10-1990 as pointed out earlier.

5. It is indeed needless to point out that the appellant could have been penalised under section 17(9) of the Cantonments Rent Restriction Act on account of wilful default. The question whether the default committed by the appellant was wilful could only be verified after providing an opportunity to him to explain the circumstances. However, as pointed out earlier, no such opportunity was provided to the appellant by the learned Additional Rent Controller. After the said application under section 17(9) of the said Act was received by the learned Additional Controller, on 15-9-1990, he called for a report from the accountant on the next date of hearing which was 9-10-1990, the learned Controller struck off the appellant's defence after referring to the, accountant's report.

Neither the said application was fixed for hearing by the learned Additional Controller, nor any opportunity appears to have been provided by him to the appellant to file his written statement or explain the circumstances. Under the circumstances, it is clear that the learned Controller has passed the impugned order without following any proper procedure and his order is, therefore, liable to be set aside.

6. In the result, this appeal is allowed and the order passed by the learned Controller is set aside and the case is remanded to the learned Additional Controller, Cantonment for disposal in accordance with the law. The parties are left to bear their own costs.