Khawaja MUHAMMAD MUGHEES vs Mrs. SUGHRA DADI

ORDER

' SH. IJAZ NISAR, J.---Khawaja Muhammad Mughees, petitioner herein, seeks leave to appeal against the judgment, dated 4-9-1997, passed by the High Court of Sindh, Karachi, whereby the learned Single Judge dismissed F.R.A. No,667 of 1994 filed by him.

2. The facts, in brief, are that Mrs. Sughra Dadi respondent filed an ejectment application against the petitioner, under section 17 of Cantonment Rent Restriction Act, XI of 1963, before the learned Additional Controller of Rent Clifton Cantonment, in respect of Flat No,106, 3rd Floor, Plot No,11-C, 9th Zamzama Commercial Lane, Phase 'V.D.H.A. Karachi, on the ground of default in the payment of rent.

3. The learned Additional Rent Controller passed a tentative rent order on 7-5-1994 the relevant portion of which is reproduced as under:- ' "In "In view of the above discussion, I hold that the rate of rent is Rs,5,000 and as such the opponent is liable to pay the monthly rent at Rs,5,000 per month. I accordingly direct the opponent to withdraw the rent for the period of 14-10-1993 to 30-4-1994 deposited by him in the Court of VIIIth S.C.J and R .C. South Karachi and deposit the same in Rent Case No,9 of 1994 on or before 4th June, 1994. I further direct the opponent to deposit the rent for May, 1994 before 5th of June, 1994 and subsequent months rent before the 5th of each succeeding month. The applicant is restricted to withdraw the rent from 14-10-1993 to 31-10-1993, till final disposal of the case. The applicant is allowed to withdraw the rent from November, 1993, so deposited by the opponent. Insofar as payment of gas and electricity charges are concerned, the applicant is at liberty to recover these charges from the opponent and sue him before the proper forum."

4. Mst. Sughra respondent filed application under section 17(9) of the Rent Restriction Act XI of 1963, on 18-8-1994, alleging that the petitioner had failed to deposit arrears of rent in terms of the above tentative rent order. On a report called for by the Rent Controller the Accountant of the Court confirmed that arrears of rent from 14-10-1993 to 31-10-1993 were not deposited but arrears from November, 1993 to June, 1994 were deposited by the petitioner on 5-6-1994. The amount so deposited covered a period of eight months i.e, from November, 1993 to June, 1994. Thus, the rent for the period from 14-10-1993 to 31-10-1993 was not paid. Consequently, the learned Additional Rent Controller struck off the defence of the petitioner and directed his ejectment vide order, dated 29-10-1994.

5. The petitioner filed an appeal against the aforesaid order of the Rent Controller, which was dismissed by the learned High Court on 4-9-1997. Hence, this petition.

6. It is contended by the learned counsel for the petitioner that the Courts below failed to take into consideration the fact that it was beyond the control of the petitioner to deposit the arrears of rent on 4th of June, 1994, as it was a gazetted holiday and that the petitioner was not guilty of committing any default by depositing arrears on the next working day i.e, 5-6-1994.

7. Learned counsel for the respondent has seriously contested the above assertion. According to him, 4th June, 1994 was not a Court holiday but was a working day and the Courts had functioned in the normal way. He has produced photocopy of the cause list cases fixed for hearing in the Court of Additional Controller of Rent Clifton, Cantonment, for the said date. Learned counsel for the petitioner has not been able to rebut it. In this view of the matter, the default on the part of the petitioner stands established. Furthermore, he had failed to comply with the interim order dated 3- 10-1997 passed by this Court whereby he was required to deposit rent for the month of October, before the 10th of November, 1997. There is no explanation on behalf of the petitioner in this respect.

In this view of the matter, his defence was liable to be struck off. As no infirmity or lacuna, whatsoever, appears in the impugned order, the leave to refused. However, six months time is allowed to the petitioner to put the landlady in vacant possession of the property in dispute. This order will be subject to the payment of rent, current charges of electricity and gas and clearance of arrears bills of electricity within a month.