The appellant above-nanned, being aggrieved by judgment dated 7-2-1981 of the VIIth Additional District Judge, Karachi, in Rent Appeal No. 296/79 by which, he confirmed the order dated 30th April, 1979, of IInd Rent Controller, Karachi, passed in Rent Case No. 200/78, by which the defence of the appellant was struck: of, has preferred this appeal on the following facts and grounds :-----
2. The brief facts of the case are, that the respondent filed an ejectment application against the appellant alleging that the appellant is the tenant at 2L monthly rent of Rs. 125 of a portion in building bearing No. S. B. 15/3, Karimabad, Federal "B" Area, Karachi. It was alleged in the application that the appellant had-committed default in payment of rent and at the time of filing of the main application, was in arrears of rent of about Rs. 375 for the period from 1-10-1977 to December, 1977.
The written statement was filed by the appellant on 25-4-1978 and the tentative order for deposit of rent was passed on 22-10-1978, in the absence of the appellant who was not present. By that order the appellant was directed to deposit the arrears of rent amounting to Rs. 1,250 being rent from December, 1977, to September, 1978 at the rate of Rs. 125 in Court, before 31st December, 1978, and the appellant was further directed to deposit future monthly rents in the Court on or before 15th of each calendar month. The matter was then adjourned to 7-11-1978. The record shows, that the tenant did not comply with the above order of deposit of rent, hence an application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was moved for striking of the defence of the appellant. Notice was issued to the appellant to show cause and also the report of the Nazir was called for. The record shows, that after the service of notice, the appellant sought extension of time for filing objections to the application for striking of the defence, which was allowed, but till the date when the impugned order was passed no objections whatsoever were filed by the appellant. Accordingly, the learned Rent Controller allowed the application filed by the respondent/landlord 'and struck of the defence of the appellant and ordered him to hand over the vacant possession of the premises to the respondent.
3. The appellant being aggrieved by order dated 30th April, 1979 of the learned Rent Controller, filed Appeal No. 296/79 before the VIIth Addi--tional District Judge, Karachi, who also dismissed the said appeal vide his judgment dated 7-2-1981 and confirmed the order dated 30th April, 1979 of this learned Rent Controller and hence the appellant has filed the above appeal on the grounds mentioned in the memo. Of appeal.
4. The main contention that has been raised before me by the learned Advocate for the appellant is, that the appellant was not aware of the tentative order of rent passed by the learned Rent Controller on 22-10-1978, as the same was passed at the back of the appellant and his counsel and as such the appellant cannot be penalished for breach of the said order. In support of this contention, learned Advocate pointed out to me from the record and proceedings of the learned Rent Controller, that there is no order sheet to show that the matter was fixed for passing of tentative rent order on 22-10-1978 before the learned Rent Controller.
5. Learned Advocate for the respondent, on the other hand, submitted that appellant and his counsel were fully aware of the fact that the matter was fixed for 22-10-1978, which is evident from the diary sheets dated 23-9-1978 and 2-10-1978, but they deliberately did not attend the Court of the leaned Rent Controller, but no doubt the diary sheet for 22-10-1978 has not been written. In the alternative, learned Advocate for the respondent submitted that the notice of respondent's application, under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 dates 12-12-1978 was admittedly served on the appellant on 16-1-1979 and in pursuance of the service of the said notice, appellant's Advocate instead of filing objections, took time for filing objections up to 5th February, 1979, according to dairy sheet dated 27th January, 1979 and on 5-2-1979, appellant's counsel again moved an application for extension of time to file the said objections which was also granted up to 18-2.-1979, but in spite of this, the appellant did not file any objections to the said application nor complied with the tentative order of rent, which came to his notice at least on 16th January, 1979 and the appellant for the first time in compliance with the tentative rent order deposited the said rent, after filing of First Appeal on 15th May, 1979 and as such even if the contentions of the learned Advocate for the appellant are accepted, then too there is no explanation for non-deposit of rents in accordance with the tentative order from 16th January, 1979 till after filing of the First Appeal and as such the appellant is a wilful defaulter and his defence has been rightly struck of by the learned Rent Controller and said order has been rightly confirmed by the VIIIth Additional District Judge, Karachi.
6. I have carefully considered the above arguments advanced by the learned Advocates for the parties and have gone through the R & P of both the learned lower Courts, which are available before me as well as the order dated 30th April, 1979 of the learned Rent Controller and judgment dated 7-2-1981 of the VIIth Additional District nudge, Karachi. The learned Rent Controller has taken into consideration the fact that appellant did not file any objections to the respondent's application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1.959, in spite of taking time and as such came to the conclusion that the appellant has no tenable or plausible reasons for not complying with the tentative rent order and, therefore, held, that the appellant had committed wilful default of the said order and consequently he struck of the defence of the appellant. I see no reason to disagree with the said order of the', learned Rent Controller, in. View of the fact, that no objections at all were filed by the appellant to the respondent's application for striking, of appellant's defence nor any arguments were advanced before the learned Rent Controller in this connection. The explanation of the learned Advocate for the appellant for non- appearance of the appellant and, his counsel fore opposing respondent's application in question, is that the file of the learned Rent Controller was missing for the second time and he was directed that as soon as the same was traced, notice will be issued to him. Learned Advocate, who appeared on behalf of the appellant in the Court of Rent Controller has refrained from filing his own affidavit in support of this contention of his and as such I am not prepared to accept this explanation in the absence of such affidavit by the said learned Advocate.
7. As far as the judgment dated 7-2-1981 of the VIIth Additional District Judge, Karachi is concerned, before whom the learned Advocate for the appellant did appear and argue the said appeal, the learned Advocate for the appellant submitted, that the learned VIIth Additional District Judge failed to appreciate the arguments that were advanced before him and failed to take into consideration that the rent order dated 22-10-1978 was passed at the back of the appellant and as such non- compliance of the said order was neither wilful nor on account of negligence. I have gone through the judgment of the learned VIIth Additional District Judge, Karachi and find that learned With Additional District Judge, Karachi has taken into consideration the submission made by the learned Advocate for the appellant and has given cogent reasons for not accepting the contention of the learned Advocate in this connection. The learned. Additional District Judge, Karachi in his judgment has observed, that no ground was taken in the memo. Of appeal that the order of rent dated 22-10-1978 was passed at his back, without notice to him, as the file of the proceedings before the learned Rent Controller was missing. The only ground taken in the appeal was that the tentative rent order dated 22-10-1978 was obtained by fraud by the respondent, but the alleged fraud was neither explained nor proved by the appellant. The learned VIIth Additional District Judge, Karachi, in his order has mentioned that the notice of the respondent's application under section 13(6) was duly served on the appellant and in response to the said notice, appellant's counsel took two dates for filing objections, but he did not care to file any objec--tions and consequently, the learned VIIth Additional District Judge came to the conclusion, that in the absence of any objections filed by the appellant or any arguments advanced by him, before the .Learned Rent Controller, the learned Rent Controller was fully justified in passing the impugned order. The learned VIIth Additional District Judge went through the diary sheet of the learned Rent Controller and came to the conclusion that the appellant was aware of the order dated 22-10-1978, long before filing of the applica--tion in question by the respondent for striking of his defence. The diary sheets dated 7-11-1978, 12-12-1978, 23-12-1978 and 8-11-1979 show that the Advocates for the parties were present before the learned Rent Controller and as such the contention of the learned Advocate for the appellant that neither the appellant nor he was aware of the tentative order cannot be sustained, in spite of the explanation given by the learned Advocate for the appellant that the file was missing in the Court of learned Rent Controller, as the learned Advocate for the appellant has refrained from filing his own affidavit in support of this contention of his. 16 my opinion, even if I accept the contention of the learned Advocate for the appellant, that the file of the proceedings was missing and the tentative rent order dated 22-10-1978 when it was passed, the appellant and his counsel were absent due to non-receipt of the notice of the tracing of the file, then too appellant has given no explanation for non-compliance with the tentative order of rent from 16th January, 1979, till after filing of the First Appeal and as such, in my opinion, the appellant committed default of the said tentative rent order wilfully after having come to know of the said order on 16th January, 1979 till after filing of the First Appeal, If the appellant on coming to know the tentative rent order on 16th January, 1979 had complied with the said order immediately, then perhaps there could be some force in the contentions that have been raised before me. In the absence of such compliance of the said tentative rent order from 16th January, 1979, till after filing of the First Appeal, I see no reason to interfere with the findings of both the learned lower Courts, which are based on cogent reasons.
8. The only explanation the learned Advocate for the appellant has offered for being unaware of the tentative rent order dated 22-11-1978, is that the file was missing on this date which is supported by the fact that there is no diary sheet of the said date written. In view of my above conclusion, since no explanation whatsoever for non-compliance with the tentative rent order from 16th January, 1979, till after filing of the First Appeal has been given, I hold that the appellant committed default of the order at least from 16th January, 1979 onwards. I, also see no force in the arguments of the learned Advocate for the appellant, who was appearing for the appellant in the trial Court, that the diary sheet wrongly shows his presence on the various dates, namely, 2-10- 1978, 7-11-1978, 12-12-1978, 23-12-1978 and 8-1-1979, as the learned Advocate has refrained from filing his personal affidavit in this connection and as such I cannot doubt the entries in the diary sheets of the above dates.
9. Therefore, I find no force in the above appeal, which is consequently dismissed with costs.
However, I allow four months time to the appellant to vacate the premises in his occupation and hand over its vacant possession, to the respondent provided appellant continues to deposit rents in accordance with the tentative rent order dated 22-10-1978.