SAEEDAN BIBI vs ALI HUSSAIN

ORDER

' WAHEEDUDDIN AHMAD, J.-The respondent is a tenant of the residential premises bearing No, GK- 1/3, situated in Jhamandas Building, Kharadar, Karachi, It is alleged that tie failed to pay rent to the petitioner for the period commencing from 1st October 1964. The petitioner, who is the owner of the property, filed an application for ejectment of the respondent in July, 1966 on the ground of non- payment of rent. In these proceedings, the learned Rent Controller passed a tentative order under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, on the 1st December 1961. He directed the respondent to deposit arrears of rent from October 1964 to 20th November 1967 at the rate of Rs, 20 p.m., in four equal monthly installments. The first installment was to be deposited before the 15th January 1968 and the rest before 15th of each succeeding month. He also directed the respondent to deposit further monthly rent at the same rate in the Court before 15th of every month. In pursuance of this order, the respondent deposited the rent as under:-

(i) Rs, 185 on 1st January 1968.

(ii) Re. 245 on 8th February 1968,

(iii) Rs, 215 on 5th March 1968.

(iv) Rs, 215 on 4th April 1968.

' Thereafter, out the 6th April 1968, the petitioner made an application for striking off the defence of the respondent on the allegation that the respondent had committed default in depositing the correct amount of first installment of arrears and had also committed default in the payment of current rent for the month of December 1967. It was alleged by the petitioner that the respondent had to deposit Rs, 190 towards the arrears and Rs, 20 towards the current rent for the month of December 1967 before the 15th January 1968. It was contended that in view of this, the respondent not only made a short deposit of Rs, 5 towards the arrears but also failed to deposit the current rent for the month of December before 15th January 1968.

' The respondent resisted this application. His explanation was that hid counsel Mr. A. M. Namazi interpreted the order of the learned Rent Controller that the rent due up to 15th January 1968, which would also include the rent for the month of December, 196 r was to be deposited in four equal monthly installments and after working out the amount directed the respondent to deposit Rs, 185 only towards the first installment before the 15th January 1968. He submitted that the respondent relying on the advice of his counsel deposited the amount of Rs,

185. It was later on discovered that his counsel, by mistake, had written the figure of Rs, 185 instead of Rs,

190. The respondent immediately covered the short payment while depositing the 2nd installment. The Rent Controller did not accept the explanation and struck off the defense of the respondent under section 13 (6) of the West Pakistan Urban tent Restrictions Ordinance, 1959. An appeal was filed against this order which was dismissed. The matter was then taken in 2nd Appeal No, 953 of 196 in the High Court of Sind & Baluchistan, Karachi and a learned Single Judge of the said High Court by judgment dated the 15th January 1974 accepted the appeal and condoned the delay in not depositing the entire rent as directed by the Rent Controller. The petitioner seekd permission to file an appeal against the said order.

Mr. M. G. Dastgir, learned coundel for the petitioner, had contended that it was a case of wilful default and the High Court should not have condoned the delay. He further contended that the case of the petitioner was distinguishable from the case decided by the Supreme Court in Haild Khan v. Ghulam Nabi (1). We have gone through the order of the Warne Single Judge and are satisfied that he applied correct principles in this case. It is quite clear from the fact of the cade that the respondent acted on the advice given to him by his counsel and in such circumstances, he could 4 not be penalized merely because the advice given to him proceeded on a misinterpretation of the Rent Controller's order. We, therefore, do not see any readon to interfere with the impugned order. The petition is dismissed.

(1) 1973 SCMR 112