'MUHAMMAD ATHAR SAEED, J.---This F.R.A. Has been filed under section 24 of the Cantonments Rent Restriction Act, 1963 against the order of the Additional Controller of Rents, Clifton Cantonment Karachi dated 3rd March, 2007 in Rent Case No,83 of 2006.
2. Brief facts of the case are that the present respondent had let out the apartment to the appellant vide tenancy agreement dated 18-2-2007 and has filed an ejectment petition before the Court of Additional Controller of Rent, Clifton Cantonment Karachi seeking ejectment of petitioner for default. The respondent had also filed an application under section 17(9) of the Cantonments Rent Restriction Act, 1963 for directions to be issued to the appellant to deposit the arrears of rent amounting to Rs,3,24,133 every month. The admitted position is that the appellants continued to deposit the future monthly rent within the stipulated time but failed to deposit the arrears in accordance with the provisions of the order. The respondent then moved an application under section 17(9) for the eviction of the appellant and the learned Judge, after dismissing the appellants application dated 21-2-2007 to seek extension of time to deposit the arrears of rent, allowed the application under section 17(9) and directed the appellant to hand over physical possession of the subject premises to the petitioner immediately. Hence the present appeal.
3. I have heard Mr. Mazhar Jafri learned counsel for the appellant and Mr. S.M. Awan learned counsel for the respondent.
4. The main contention of the learned counsel for the appellant is that he had before the date of the first order deposited an amount of Rs,2,60,000 as arrears of rent in the Court of IVth Senior Civil Judge Karachi South/Rent Controller Karachi South and had deposited the rent of 26,000 as future rent before the stipulated date. He further submitted that there was some payment of 2,60,000 deposited by him with the IVth Senior Civil Judge/Rent Controller Karachi South was enough payment in compliance of the order dated 13-12-2006 and he had made this submission before the learned Rent Controller at the time of arguments on application under section 17(8). He argued that it was at the most a technical default and striking off defence being penal action should not be B applied to a technical default. In this connection he relied upon the following judgments of this Court.--
(1) Ismail v. Mst. Sara Bai and another 1987 CLC 1393.
(2) Babar Parvez v. Muhammad Saad 2000 CLC 1134.
5. The learned counsel also submitted that since the IVth Additional Civil Judge required the personal appearance of the appellant for the purpose of issuing a cheque of the amount to be deposited with the Controller of Rent and the applicant being a heart patient who had to undergo bypass surgery could not make personal appearance due to his medical condition and therefore he was not able to comply with such directions.
6. The learned counsel for the respondent rebutting the arguments of the learned counsel submitted that the default was deliberate and the circumstances explained by the learned counsel for the appellant are not plausible as the medical certificate which has been submitted by the learned counsel shows his admission date for bypass surgery as 13-1-2007 which is after the expiry of the period provided in the order dated 13-12-2006. He submitted that the Courts have held that the Rent Controller does not have powers to extend the time for payment of rent and thus default is fatal and ejectment application should be allowed if default has been made, in this connection he relied on the following judgments:--
(1) M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCM R 1453.
(2) Messrs Unique Services, Sole Proprietorship Concern v. Occupant Owners Welfare Association 2003 YLR 466.
7. I have examined the case in the light of the arguments of the learned counsel and perused the records of the case including the judgments relied on by the learned counsel.
8. It is an admitted fact supported by certified copy of the statement issued by the IVth Senior Civil Judge Karachi (South) that the applicant had before the date of the rent order deposited a sum of Rs,2,60,000 on account of rent up to November, 2006 and, therefore, the money had already been deposited by the appellant but in a wrong Court. In this connection the case which seems to be on all fours with the facts of this case is the judgment of the Honourable Chief Justice in the case of Babar Parvez v. Muhammad Saad (supra) where his lordship had held as under:-- 'Indeed the consequences of section 16(2) of the Sindh Rented Premises Ordinance 1979, being penal, they should not be applied to technical default.
9. Despite the fact that the learned counsel for respondent has argued the facts of the present case are not identical to the case quoted supra but, in my humble opinion, the point of law settled by the learned Chief Justice is that striking off defence being penal should not be applied to technical default, applies to this case also.
10. Respectfully, following the above judgment, I set aside the impugned order and remand the case back to the Additional Controller of Rents, Clifton Cantonment Karachi with directions to hear and dispose of the case on merits within a period of six months. In the meantime, the appellant is directed to withdraw the amount of Rs,260,000 from the Court of IVth Senior Civil Judge, Karachi (South) and deposit the same with the Additional Controller of Rents, Clifton Cantonment Karachi who will also examine whether the amount tallies with the amount directed to be deposited by him in his impugned order.
11. This appeal is disposed of in the above manner.