Syed MEHDI RAZA vs Mst. ABEDA SULTANA

1. This order will dispose of First Rent Appeal, under section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter referred to as the Act XI of 1963) preferred by the appellant against the order dated 10-9-1997, whereby his defence was struck off by the learned Controller of Rents (Clifton)

2. Cantonment, Karachi.

3. ' Briefly stated the respondent sought ejectment of the appellant from Bungalow No.86/II, Khayaban-e-Hilal Phase VI, Defence Housing Authority, Karachi on the grounds of default and Personal requirement. This application was resisted by the appellant. The learned Controller of Rents passed the tentative rent order on 26-7-1997 whereby the appellant was directed to deposit the arrears of rent from January 1997 to June 1997 (six months) at the rate of Rs,24,000 per month amounting to Rs,1,45,200 within 30 days from the date of tentative rent order and the rent for the month of July, 1997 at the same rate before 5th August, 1997 and the rent for the subsequent months before 5th day of each succeeding calendar month till further order. Since the appellant allegedly committed default in compliance of the orders dated 26-7-1997, of the learned Controller of Rents, as he deposited the arrears of rent for six months from January 1997 as well as the current rent for the month of July 1997, on 26-6-1997. Accordingly the respondent submitted application for striking off the defence of the appellant under section 17(9) of the Act XI of 1963. The appellant filed his objections and ultimately the impugned order was passed.

4. I have heard Mr. Muhammad Aqil, learned counsel for the appellant and Mr. Iftikhar Javaid Qazi, learned counsel for the respondent and also perused the record.

5. Learned counsel for the appellant contended that the tentative rent order was passed on 26-7- 1997 but that was Saturday and on 27-7-1997, it was holiday due to Sunday, therefore, in accordance with rules 4 and 14 of the Sindh Civil Courts Rules, the appellant was entitled to compute time from 29th July, 1997. Therefore, there was no delay, in depositing the arrears of rent.

6. Regarding deposit of monthly rent on 26th August, 1997, and not on 5th August, 1997 the learned counsel for the appellant submitted that in the first instance the appellant had no knowledge that he was supposed to deposit current rent before 5th August, 1997 and secondly the mother of the appellant being a heart patient was seriously ill therefore compliance could not be made. He frankly conceded that this fact was not disclosed in the objections filed by the appellant under section 17(9) of the Act XI of 1963. He cited Haji Fazal Karim v. Amanullah Khan and others 1991 M LD 1987 and Sahibzada Mustafa and another v. Wazir Muhammad Awan and 9 others 1993 SCM R 1584.

7. Learned counsel for the respondent submitted that the appellant was supposed to deposit the arrears of rent within 30 days i,e, before 26th August, 1997 and he was not entitled to deposit the rent on 26th August, 1997. He further submitted that the appellant was supposed to pay the monthly rent before 5th August, 1997 but he deposited the same with a clear default of 22 days and neither any plausible explanation was offered nor the learned Controller of Rents was competent to condone the alleged delay. In support of his submissions he cited Messrs Ansari Brothers (Represented by 6 heirs) v. Holy Trinity Church Trust PLD 1971 SC 700, Muhammad Jan v. Khadim Hussain, 1973 SCM R 243, Messrs Crescent Publicity Service v. S.M. Younus and others 1980 SCMR 777, Ziaullah Shah v. Syed Riaz Ahmed, 1981 SCM R 538, M. Nazir v. S. Shoukat Ali 1982 SCM R 985, Messrs M.A. Yahya v. Messrs Nawab Abdul Malik Estate 1982 SCM R 1160, Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1, Begum Capt. Mirza Ghulam Sarwar and another v.

8. District Judge, Jhelum and others 1987 SCM R 25, Muhammad Yousaf v. Muhammad Bashir and others 1990 SCM R 557 and Tanveer Ahmed v. Mst. Abida Yasmin Butt 1996 CLC 1068.

9. On careful examination in the light of the case law cited by learned counsel for the parties, I have come to the conclusion that the appellant failed to deposit the monthly rent according to the statutory provision before 5th August, 1997 and in the absence of any plausible explanation having been offered to the learned Controller of Rents, I am of the view that this was a wilful default.

10. Therefore, the impugned order is just and proper which requires no interference as in the facts and circumstances of the case, the learned Controller of Rents had no option but to strike off the defence. Accordingly, I find no merit in this appeal and it is dismissed in limine.