ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI.

F.R.A No.28 of 2016

Date

Order with signature of Judge

 

For orders on CMA 6938/2016.

 

04.10.2016

 

          Mr. Shakeel Ahmed Advocate for the Appellant.

Mr. Shab Alam Advocate for the respodent.

 

O R E D E R

 

 

1.       Today urgent application has been filed by the respondent, which is allowed and by consent, the matter is taken up for hearing.

Appellant is aggrieved by the impugned order dated 21.04.2016 passed by learned Controller of Rents, Faisal Cantt. Karachi in rent case No.24/2015, whereby the defence of the appellant has been struck off and he has been directed to handover peaceful possession of the rented premises i.e. Flat No.101 1st Floor, King’s Residency, Block-13, K.D.A Scheme-36, Gulistan-e-Jauhar, Karachi to the respondent within a period of 30 days without fail.

2.       Facts of the case show that Appellant is tenant in respect of aforesaid premises rented out to him vide rent agreement dated 15.03.2010. The respondent filed above rent case against the appellant for eviction on the grounds of default and personal bonafide need. However, during pendency of the said case, she filed an application U/s 17(8) of Cantonment Rent Restriction Act, 1963 (hereinafter referred to as the Act) for directions to the appellant to pay not only arrears of the rent but future rent of the said premises also. The said application was disposed of vide order dated 04.02.2016, whereby the appellant was directed to deposit an amount of Rs.2,99,250/- in six equal installments of Rs.49,875/- each and he was further directed to deposit future monthly rent at the rate of Rs.14,250/- per month on or before 5th of each calendar month. It appears that on failure of appellant to comply with the terms of the said order, the application u/s 17(9) of the Act was filed against him with the prayer to strike off his defence and direct him to vacate the premises. This application has been allowed vide impugned order as stated above. The appellant being aggrieved by the same has filed instant appeal.

3.       Case of the appellant here, which his counsel has vehemently argued, is that no default has been committed by the appellant; that the order passed by the Controller of Rents is bad in law and explaining this point, he has stated that in March, 2014 he paid rent to  respondent No.1 and thereafter since she had refused to receive the rent either directly or through money order from him, the rent was deposited through MRC No.71/2015 in the court of learned Ist Rent Controller East Karachi from April, 2014under the impression that the said court had the jurisdiction to receive the rent in respect of the said premises. However, later on, when the instant rent case was filed by the respondent and the appellant came to know of jurisdiction of Controller of Rents, Faisal Cantonment, he stopped depositing rent in the said court and informed the learned Controller of Rents about the same facts and submitted that he had not committed any default and his intention to deposit the rent was very much clear and beyond doubt. Learned counsel has further argued that the whole record of depositing the rent in the above forum was produced before the Controller of Rents but he did not consider the same and passed impugned order against the appellant which is illegal and has resulted into miscarriage of justice. Learned counsel is of the view that the default on the part of the appellant is of technical nature which looking to his bonafide to make good of the same can be ignored. In support of his arguments, he has relied upon 1984 CLC 2769, 1992 MLD 1361 and 1991 SCMR 68.

4.       Counsel for the respondent, however, has supported the impugned order and states that it was the responsibility of the appellant to ensure that he was depositing the rent before the right forum; that after the appellant had come to know of jurisdiction of the court, he should have immediately started thereafter to deposit rent in the said court but since he failed to do so, he was not entitled to retain possession of the premises as tenant. In support of his arguments, he has relied upon the case law reported in 2001 SCMR 1888, 1996 CLC 811, 1999 CLC 795.

5.       I have considered the submissions of the parties and perused the material available on record including the case laws cited at the bar. A perusal of the tentative order passed on 04.02.2016 shows that the ground of the appellant to have deposited the rent in MRC 71/2015 was duly considered by the Controller of Rents, yet he was directed to deposit the arrears of rent amounting to Rs.299,250/- in six equal installments so also future rent at the rate of Rs.14,250/-. It was, therefore, incumbent on the appellant to deposit not only arrears of rent but also future monthly rent on or before 5th of each calendar month. The record, however, shows that after the said order was passed, the Appellant paid first installment of Rs.49,875/- only on 07.04.2016. Although in the said installment, the rent of January and February, 2016 was included as the rent of these two months was considered in the arrears by the Controller of Rents in his tentative order, but the rent of March, 2016 which by that time had become due against the appellant and which he in terms of tentative order was required to pay on or before 5th April, 2016 was not paid by him. There is nothing on record to show that in addition to depositing the 1st installment, the appellant had paid rent of March, 2016 within stipulated time. Depositing first installment of the arrears did not absolve the appellant of his liability to deposit rent of March, 2016 within time. Learned counsel for the appellant has although vehemently argued in support of the fact that the appellant is not defaulter as in MRC 71/2015, he had been tendering the rent since April, 2014 but has not satisfactorily explained the default of March, 2016. It is a well settled principle of law that even a default of one day against the tenant would be sufficient to make him liable to eviction. The impugned order was passed by learned Controller of Rents after Nazir had reported on 31.03.2016 that no payment was made by the appellant uptill then.

6.       In view of above discussion, I see no merits in the instant appeal which is accordingly dismissed alongwith pending application with no order as to costs. The appellant is however given three months’ time from today to vacate the premises subject to payment of due rent and other charges. After three months, the appellant shall vacate the premises without any further notice, failing which writ of possession shall be issued by the learned Controller of rents.

 

 

    JUDGE

A.K.