1. The appellant's defence in the case was struck of by the Rent Cont--roller on account of non- compliance of the order for deposit of rent passed on 10-7-1980. The appellant was directed to deposit 'in Court a sum of Rs. 400 within one month of the above order after deducting the amount already deposited in the miscellaneous case filed by him. The Appellant however deposited only a sum of Rs. 96 in the miscellaneous rent case as against the difference of, Rs. 110/, on 9-8-1980 and the balance amount of Rs. 14 alongwith current rent for the. Month of July, 1980 was deposited in Court by him on 17-8-1980. There were thus defaults in respect of the sum of Rs. 14 from the arrears of rent and current rent for the month of July, 1980. The explanation offered by the appellant before the- Rent Controller was that he came to deposit the amount of arrears as well as the current rent for the month of July, 1980 in Court in time but the file of rent case was not traceable, and therefore, he could not pay the same in time. It was further alleged that he again attended the Court on 10th and 11th of August but still the file was not traceable and 12th to 14th being public holidays and 15th a Friday, he again appeared in the Court on the 16th of August on which date the hearing of the case was fixed but on that date, too, the file was not traceable. It alleged that after stating all these facts, the appellant filed the application on the same date before the Controller: Mr. Sbafiq Qureshi, the learned counsel for the appellant bas raised two-fold contentions before me. It is firstly, contended that the Rent Controller under section 16 (1) of the Sind Rented Premises Ordinance has to pass an order with regard to -arrears as well as current monthly rent after holding summary- enquiry and therefore the order has to be of a final nature in contradistinction to an order under section 13 (6) of the repealed Ordinance VI of 1959 which-used to be a tentative rent order. It is, there--fore, urged that the order passed in the present case by the Rent Controller being tentative in nature was not the one contemplated under the law and therefore its non-compliance would not result in striking of the defence of appellant. It is also contended that on the admitted facts of the case there was no deliberate and wilful default on the part of appellant. I am unable to agree with the contentions of the lenrned counsel. Upon reading of section 16 of the Ordinance of 1979 as a whole I am of the view that the order contemplated under section 16, subsection (1) has to be of a tentative nature as subsection (3) of section 16 provides that the rent deposited pursuant to the order passed under subsection (1) is to be disposed of or paid to the landlord subject to such further order of Controller as may be passed at the conclusion of the trial. If the order under section 16 (1) of the Ordinance was contemplated to be of a final nature then there was no necessity of enacting subsection (3) of section 16. It is then contended by the learned .Counsel for the appellant that if the order under section 16 (1) was of the temporary nature then the Rent Controller should have passed a final order determining the amount pay--able to respondent out of the rent deposited by the appellant under section 16 (3) of the Ordinance as there was dispute between the parties both with regard to arrears as well as quantum of rent. This contention of the lear--ned counsel seems to be correct as inspite of striking of the defence of the appellant the Rent Controller still has power, under section 16 (3) of the Ordinance to pass a final order with regard to the disposal of the amount deposited pursuant to the order passed under Section 16 (3) of the Ordinance. I am, therefore, in no doubt that as soon as a question is raised before the Controller with regard to the disposal of the amount deposited in the case towards rent the Rent Controller.
2. Will pass the necessary order in accordance with the law.
3. The next contention of the learned counsel is that on admitted facts and circumstances, no wilful and deliberate default is proved on the part of appellant. It is contended that in his counter- affidavit, the appellant definitely asserted before the Rent Controller which was not controverted by the respondent, that the appellant made attempts to deposit the arrears. As well as current rents on 10, 11, 12, and 16th of August but the file of the case was not traceable and therefore there was no wilful and deliberate default on the part of appellant when he paid rent in Court on 17-8-1980. The admitted position in the case is that the order for deposit of rent, in Rent Case No. 4646/79 was passed on 10-7-1980 and a deposit of Rs. 96 was made by the appellant in the Miscellaneous Rent case on 9-8-1979 whereas on this date he was liable to deposit Rs. 110 in. Accordance with the order of Rent Controller towards arrears and the current monthly rent for July, 1980. . There is no explanation whatsovever as to why the appellant while depositing the sum of Rs. 96 in the Miscellaneous Case did not deposit the entire arrears and the current rent for July, 1980. Even if it is accepted that the file of the rent case No. 4646/79 was not available as claimed by the learned counsel, there is no explanation as to what preven--ted the appellant from depositing the rent in the miscelleneous rent case specially when he deposited on that date the sum of Rs. 96 in that case. Mr. Shafique Qureshi attempted to argue that the deposit in the Misc. Case of the balance amount and current rent for July, 1980 was not made as the appellant thought that after the passing of the rent order in Case No. 4646/79 he could not deposit any rent in miscellaneous rent case. This explanation of the learned counsel has no substance because the appellant did deposit a sum of Rs. 96 on 9-8-1980 in the Misc. Rent case inspite of the order dated 10-7-1980 which was passed in Rent Case No. 4646 of 1979. The further explanation of appellant that the. Rent Case No. 4646/79 was not listed on 16-8-1980 in the cause list as the file was missing and, therefore, the appellant could not make deposit of rent on 16-8-80 is not supported by the diary of the case of that date wherein it is stated that the case was adjourned by the consent of counsel for the parties, The original cause of the Court of Rent Controller of that date which was summoned in the case earlier also belies the contention of appellant that Case No. 4646/79 was not listed in the Court.
4. After considering the entire circumstances of the view that the Rent Controller was justified in holding the appellant as defaulter and rightly struck of his defence in the case for such default.
5. The appeal is accordingly dismissed but there will be no order as to costs. The appellant is allowed four months' time to vacate the premises subject to the condition that he shall continue to deposit the monthly rent in Court for that period.