1. ' MRS. QAISER IQBAL, J.---The petitioner has assailed the order dated 30-9-2006 passed by IXth Rent Controller Karachi East whereby the defence of the petitioner was struck down, assailed before the respondent No,3 in First Appeal No,187 of 2006, which was dismissed vide impugned order.
2. ' Succinctly the facts leading to the case are that the respondent No,1 filed Rent Case stating to be the owner of property comprising of Shop No,1 Doulat Arcade Chandni Chowk Garden West, Karachi. Appellant was the tenant of demised premises @ .Rs,4500 per month payable in advance.
3. The appellant has also deposited a sum of Rs,100,000 as security at the time of execution of the tenancy agreement in the month of September, 2003. The appellant had failed to pay the utility bills as well as tended rent from October 2003 till the filling of the rent application.
4. ' The appellant in the written statement pleaded that the eviction application was premature as tenancy agreement dated 10-9-2003 was executed for three years which has been tampered with by the landlord. The ejectment application was not maintainable as the appellant had never defaulted in payment of rent. Admittedly there appears no dispute between the parties about the relationship of landlord and tenant, monthly rent @ Rs,45000 is also admitted. The Controller has passed an order for deposit of tentative rent order upon an application filed under section 16(1) of Sindh Rented Premises Ordinance 1979 dated 20-12-2005 directed the tenant to deposit arrears of rent from December, 2003 to December, 2005 for 25 months total amounting to Rs,1,12,000 after adjustment of the amount deposited in MRC No,59/2004. The remaining amount of Rs,45000 was directed to be deposited within 15 days from the date of the order and rent was directed to be deposited before 10th of each English calendar month. The respondent was directed not to withdraw the disputed amount till the decision of the rent case. The appellant filed a review application the landlord filed an application under section 16(2) of the Ordinance, for striking off the defence of the appellant which was contested ultimately the defence of the appellant was struck off. He was directed to hand over the possession of the demised shop to the landlord within 30 days.
5. ' Mrs. Mehrunnisa learned counsel for petitioner has challenged the concurrent findings of the Courts below on the premises that the tenant was regularly not depositing the rent in MRC No,59/2004 due to the mistake entries of the payment were not mentioned in the ledger account for which review application was filed which was declined. It is further pointed out that the impugned order is illegal and defective, the arrears of the rent were not required to be deposited as the respondent No,2 has specifically failed to mention, out of arrears of rent a sum of Rs,1,08,000 was lying deposited in MRC No,59/2004 on 26-12-2005 the appellant had deposited a sum of Rs,9000 therefore on 26-12-2005 an amount of Rs,1,17,000 instead of Rs,1,12,500 was lying deposited which fact was not taken into consideration by the learned Rent Controller therefore the petitioner has not committed default in payment of arrears which was earlier lying deposited with the Nazir, both the Courts below have erred in law by committing gross illegality by invoking the provisions of section 16(2) of the Ordinance directing eviction of the tenant for non-compliance of tentative rent order.
6. ' The respondent No,1 present in person did not controvert the above state of affairs.
7. I have considered the arguments advanced at bar. Anomaly has occurred as the rent was deposited by the tenant in Misc. Rent Applications No,59/2004, but due to oversight Ledger Number of account, which was wrongly mentioned at 28/2001 instead of 28/2004, which resulted into the impugned order. The report is reproduced herein below:-- "1.27-2-2004Rs. 9000 2.10-3-2004Rs. 4500 3.10-4-2004Rs. 4500 4.10-5-2004Rs. 4500 5.10-6-2004Rs. 4500 6.10-7-2004Rs. 4500 7.10-8-2004Rs. 4500 8.9-9-2004Rs. 4500 9.8-10-2004Rs. 4500 10.10-12-2004Rs. 4500 11.10-12-2004Rs. 4500 12.10-1-2005Rs. 4500 13.9-2-2005Rs. 4500 14.10-3-2005Rs. 4500 15.9-4-2005Rs. 4500 16.9-5-2005Rs. 4500 17.9-6-2005Rs. 4500 18.9-7-2005Rs. 4500 19.10-8-2005Rs. 4500 20.10-9-2005Rs. 4500 21.3-10-2005Rs. 4500 22.10-11-2005Rs. 4500 23.12-12-2005Rs. 4500 Rs. 1,08,000 ' It is vouchsafed from the above report that on the day when impugned order was passed an amount of Rs,1,08,000 was deposited in MRC No,59/2004 and a sum of Rs,9000 was deposited by the petitioner in Rent Case No,358/2005 filed by the landlady. Thus an amount of Rs,1,17,000 instead of Rs,1,12,500 were lying deposited in both the cases. It seems that the learned trial Court had overlooked the objections filed by the petitioner and the concurrent findings of the Courts below are not tenable in law, therefore, both the orders are hereby set aside. The case is remanded back to the Controller for fresh adjudication of the case on merits without being influenced from any extraneous situation.
8. ' For the above reasons, Constitutional Petition No,S-516 of 2008 stands allowed in the above terms.