This second appeal is directed against the orders dated 29-4-1979 and 27-I1-1979 passed by the learned ill Rent Controller, Karachi and the learned V111th Additional District Judge, Karachi in Rent Cases No. 2136/78 and in Rent Appeal No. 346/79 respectively.
The brief facts leading to the filing of the above second appeal are that the respondent filed the aforesaid Rent Case No. 2136/78 for ejectment on three grounds namely, default, subletting and unauthorised construction. The present appellant filed a written statement, in which inter alia it was pleaded that the appellant had been depositing rent in Misc. Rent case for the reason that the respondent had refused to accept the money-order. It seems that on 8-10-1978 the case was fixed before the Rent Controller for settlement of accounts in order to pass tentative rent order. It is the case of the appellant that Mr. Aziz Shaikh the learned counsel for the present appellant, who was appearing, could not appear on above date as he met with an accident on the above date. It is also his case that be was sitting outside the Court and was informed by the reader of the Court that the case was adjourned to 18-11-1978. However, on 18-11-1978 when Mr. Aziz Shaikh, his learned counsel appeared in the Court he was furnished with a copy of an application under section 13(6) of the late W. P. U. R. R. Ordinance, 1959 for striking of the appellant's defence. Thereupon, the appellant filed object on 5th December, 1978 alleging therein that on 8-10-1978 he was informed by the reader that the case was adjourned and that his Advocate could not appear on 8-10-1978 as he met with an accident and had broken his collar bone and that the appellant was informed that the case was adjourned to 18-11-1978. It was also alleged that in Misc. Rent Case No. 2517/78, the appellant had been regularly depositing rent and in fact he bad deposited rent up to December, 1978. The learned Rent Controller sent for the Nazir's report and found that the appellant had deposited a sum of Rs.250 instead of Rs.495, which, amount was to be deposited at the rate of Rs.55 per month for the period by then expired. In this view of the matter he passed the aforesaid order dated 29-4-1979 for striking of the appellant's defence. The appellant being aggrieved by the above order has filed the aforesaid Rent Appeal No. 346/79. The above appeal was also dismissed through the aforesaid order dated 27-11-1979. The appellant being aggrieved by the above two orders has filed the present appeal.
2. (a) In support of the above appeal, Mr. Suleman Kassam, learned counsel for the appellant has urged that in fact the appellant had given incorrect number of Misc. Rent Case in his aforesaid objections dated 5th December, 1978, namely instead of Misc. Rent Case No. 2518/78, he bad given Misc. Rent Case No. 2517/78, and, therefore, because of the aforesaid mistake, it was found that the amount was short. It was further submitted by him that the appellant was also the tenant of a house at Rs.25 p.m. Of one Syed and that by mistake the rent of the aforesaid house was deposited in Misc. Rent Case No. 2517/78 instead of rent of the shop and that in Misc. Rent Case No. 2518/78, the rent of the shop was deposited instead of the house. It may be observed that no such plea was raised by the appellant in his objections before the learned Rent Controller. However, in para. 8 of the memo. Of appeal before the learned 1st Appellate Court, this plea was raised. But, in the order of the 1st Appellate Court, there is no reference to the above contention, the only point which has been referred to in the order is the want of knowledge on the part of the appellant of the passing of the tentative rent order on account of the fact that the appellant's learned counsel had met with an accident. Mr. Suleman Kassam was unable to state, as to whether this point was agitated before the 1st Appellate Court, but he submitted that this must have been agitated as it was the main point. Be that as it may, I have perused the rent receipts for depositing of rent in the aforesaid Misc. Rent Case No. 2518/78 filed by the appellant alongwith the memo of the above appeal, from which it seems that the rent was deposited in favour of one Syed, the landlord of the house and not in favour of the respondent. It further seems that the respondent is related to said Syed (whose name given by the learned counsel for the respondent, is Syed Mushtaq Ali) being the brother-in- law of the respondent. If the rent amount would have been deposited in favour of the present respondent, I might have inclined to condone the lapse on the part of the appellant in spite of the fact that this point was not raised before the learned Rent Controller and that there is no reference to the above point in the order of the First Appellate Court. However, since the rent amount have been deposited in favour of Syed, who is the landlord of another tenement though related to the respondent, I cannot hold that the above deposit of rent in Miscellaneous Rent Case in favour of Syed in respect of the shop constitutes sufficient compliance of the learned Rent Controller's tentative rent order. In this view of the matter no exception can be taken to the two orders under appeal. I, there--fore, dismiss the appeal with no order as to costs.
3. However, with the consent of the learned counsel for the respondent and of the husband and the attorney of the respondent, I grant one year time to the appellant to hand over the vacant possession of the shop on the condition that the appellant shall deposit difference, within two months namely. Rs.30 per month in respect of entire of arrears of rent for the period in respect of which the appellant has deposited rent in favour of the respondent at the rate of Rs.25 instead of at Rs.55 per month and he shall also continue to deposit monthly current rent at rate of Rs.55 with the Nazir of this Court on or before 10th of each month till the expiry of one year period. In case .The appellant will commit any default in respect of the above conditions the respondent shall be at liberty to file an execution application immediately on commission of such default.