1. ' MRS. YASMIN ABBASEY, J.--- This petition has been directed against the judgment of learned District and Sessions Judge, Karachi East, dated 3-9-2005 whereby he has allowed the appeal and has struck off the defence of petitioner and had called him to hand over vacant possession of the premises within 90 days from the date of order.
2. ' Brief facts of the case are that Rent Application No,35 of 2002 was filed by Mst. Nisar Fatima on the ground of default in payment of rent from July, 1998 and personal use of the premises in question.
3. During the pendency of rent application the demised premises was gifted by her to her daughter Mst. Rafia Saved Qureshi and she was made a party in the proceeding in place of Mst. Nisar Fatima.
4. On 29-10-2003 order under section 16(1) of Sindh Rented Premises Ordinance was passed. On the statement of petitioner that as he is depositing rent in M.R.C. No,10 of 2001 and has deposited the same upto September, 2003 order for deposit of future monthly rent in Rent Case No,35 of 2002 from October, 2003 was passed. In spite of specific direction it appears that petitioner had not complied with the order under section 16(1) therefore, an application for striking off defence was moved, that was dismissed by order, dated 20-7-2004, which was assailed by the landlord in F.R.A.
5. No,175 of 2004. Again being aggrieved by the judgment in F.R.A. No,175 of 2004 on 3-9-2005 present petition has been filed by tenant.
6. ' Contention of learned counsel for the petitioner is that though he has not complied with the order under section 16(1) of Sindh Rented Premises Ordinance in strict sense and has not deposited rent in R.C. No,35 of 2002, but in spite of that no default in payment of rent has been committed by him as he is still depositing rent in M.R.C. No,10 of 2001. According to him as the amount payable was out of the pocket of the tenant 2nd has been deposited in Court for its onward disposal to the landlord therefore, there is no question of non-compliance of rent order. However, it can be said to be an irregularity or technical fault for which no penal action is required to be taken.
7. ' Very purpose of passing order under section 16(1) is to protect the right and interest of the landlord by way of deposit of rent in. Court during the pendency of rent case. Though the nature of such order is always tentative but still tenant is required to follow it up. Any default in submission of the same would mean not only to deprive landlord of his right of rent of the demised premises but will import an element of negligence or fault on his part which means something more than the mere non-compliance of rent order. However, circumstances might be wherein due to some unavoidable circumstances tenant would not be in a position to deposit rent in time for which a relaxable attitude can be made. In the present case admittedly rent order was passed in presence of the counsel of petitioner and he was well-aware of the fact that specific direction for deposit of rent in R.C. No,135 of 2002 were made instead of M.R.C. No,10 of 2001 but in spite of that he continued on depositing the rent in very miscellaneous application upto 28-4-2004 as has been reported by the C.O.C. Of the learned trial Court. Even if, it is taken that due to some error on the part of the petitioner it happened so, then at least after moving application under section 16(2) on 12-2-2004 the petitioner should had rectified it but no such bona fide act is appearing on his part. On the contrary in para. 10 of his ground of petition, petitioner himself has admitted that he had started depositing rent in R.C. No,35 of 2002 from 9-8-2004 that is after about six months of the move of application under section 16(2), and even after disposal of application under section 16(2) by Rent Controller on 20-7-2004. To support my observation I would like to refer 1979 SCM R 496 wherein after passing of an order under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, it was pleaded by the tenant that as he had spent certain amount on the premises and according to him no rent is due on his part therefore, after accounting for the claim adjustment he will deposit the rent in Court was discarded and it was observed that:-- "the order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adaption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
8. ' With reference to the responsibility and privileges imposed and provided to an authority, it has been observed in PLD 1967 SC 530 that:-- "Having regard to the. Language of section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, one finds it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause.
9. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realizing the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law."
10. 'Upshot of above discussion is that in spite of specific direction to petitioner to deposit rent in R.C.
11. No,35 of 2002 he deliberately avoided to deposit the same in Court and continued on depositing rent in M.R. No,10 of 2001 'with mala fide intention just to put the landlord under undue pressure.
12. ' In view of foregoing reasons petition stands dismissed. .