The appellant above-named being aggrieved by order dated 12th December, 1980, passed by the learned Rent Controller-I, Karachi, in rent case No. 62/77, by which he struck of the defence of the appellant and directed the appellant to band over vacant possession of the premises in his occupation to the respondent, has preferred this appeal inter alia on the following facts and grounds
2. 'The respondent is the owner/landlord of plot No. 753-754 situated in block No. V1, Drigh Colony, Karachi and the appellant. Is his tenant in respect of the shop premises situated on the said plot, at monthly rent of Rs. 110 excluding electric and other charges. The respondent above-named, filed an ejectment application against the appellant on the ground of default and causing, damage to the premises in his occupation.
3. That on 6-12.1978 the then learned Rent Controller passed the tentative rent order, directing the appellant to deposit arrears of rent amounting to Rs. 2,640 at the rate of Rs. 110 p.m., within one month of the said order. The learned Rent Controller further directed, that the appellant shall continue to deposit future monthly rent, at the rate of Rs. 110 per month, before 15th of each subsequent calender month, till disposal of the said case. However, the learned Rent Controller permitted the respondent to withdraw the rents at the rate of Rs. 90 per month only till disposal of the said application. Thereafter the learned Rent Control--ler framed the following issues :-
(1) Whether the opponent/appellant has committed default in pay--ment of rent ?
(2) Whether the opponent/appellant has damaged the shops ?
(3) What should the order be ? and after framing the above issues, he adjourned the matter for evidence to 5th February, 1979.
This rent order was passed after hearing the advocates of both the parties.
4. That the respondent above-named moved application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 5th March, 1979 in which he alleged, that the appellant had committed breach of the order dated 6-12-1978 and has failed to deposit the arrears of rent as well as the future monthly rent and as such the appellant had committed default and consequently his defence was liable to be struck of. The appellant above-named filed a counter affidavit by way of reply to this application, in which he submitted that the respondent's application was not maintainable, as the same was not 'supported by an affidavit. The appellant further in his said affidavit stated, that his advocate Mr. Muhammad Younus Qadri had not communicated to him the facts of the contents and order dated 6th December, 1978, on which date, according to the appellant, he had met with an accident and was confined to bed. The appellant in his said affidavit further stated, that he bad been depositing monthly rent of the premises in question, in Misc. Rent Application No. 4287/1977, including all the arrears of rents, He further submitted, that as he was not aware of the order dated 6-12-1978 passed in Rent Case No. 62/1978, he had been depositing the rents in Misc. Rent Application No. 4287/1977 due to bona fide mistake and as such the question of his having committed default of order dated 6-12-1978 did not arise.
5. The learned Rent Controller disposed of respondent'-s application under section 1 3 16) of the West Pakistan Urban Rent Restriction Ordi--nance, 1959 by his order dated Ith March, 196.0 after taking into consideration the Nazit's report in respect of Case No. 62/1977 and Misc. Rent Case No. 428;1977 as well as the arguments that were advanced by the learned counsel of both the parties and by his said order. The learned Rent Controller came to the conclusion that appellant had committed default in respect of order dated 6-12-1978 and as such he struck of the defence of the appellant and directed the appellant to hand over racist possession of the premises in his occupation to the respondent, within a~0 days from the date of the said order.
6. That appellant above named being aggrieved by the said impugn--ed order dated 12th March, 1980 has preferred this appeal, on the grounds mentioned in the memo of appeal.
7. I have beard the arguments advanced by both the learned counsel and have also gone through the record and proceedings of the learned Rent Controller which are before me and have taken into consideration the various authorities cited by the learned advocates before me and have gone through the impugned orders dated 6-12-1978 and 12th March, 1980. The main contention that has been raised by the learned counsel for the appellant before me is, that the appellant was not aware of the order dated 6-12-1978 as he had met with an accident and his advocate had not communicated the said order to him and consequently the appellant was depositing the rents in Misc, Application No. 4287 of 1977 and as such the appellant had committed no wilful default of tentative order dated 6-12-1978 and as such the respondent's application under section 13 (6) of the West Pakistan Urban Rent--Restriction Ordinance, 1959 ought to have been dismissed. The learned counsel for the appellant submitted, that the negligence of the advocate of the appellant to communicating the tentative order dated 6-12-1978, ought not to have been made ground for striking of the defence of the appellant, who was not present due to accident, when the said tentative order was passed. In this connection the learned advocate for the appellant relied upon case reported in 1973 SCMR 112. The learned Advocate for the respondent on the other hand submitted that copy of respondent's application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was supplied to the appellant on 9th March, 1979, but in spite of this, the appellant did not comply with the order dated 6th December, 1978 of the learned Rent Controller till 25th April, 1979, then too he deposited balance of arrears in Misc. Rent Application No. 4287 of 1977 instead of Rent Case No. 62 of 1978. Further the learned Advocate for the respondent submitted that no explanation for non-complying with the tentative rent order dated 6th December, 1978, from 19th March, 1979 till 26th April, 1979 has been given in the counter-affidavit filed by the appellant. He further urged that in this counter-affidavit appellant has not given the exact dates of his having remained confined to bed, on account of the alleged accident on 6-12- 1978, in order to avoid giving explanation for non-compliance of the said order upto 25th April, 1979.
The learned Advocate' for the respondent further stated, that the Nazir's report of deposits made by the appellant in Misc. Rent Case No. 4287/77 shows, that the appellant had made deposits in this matter on 13-12-1978, 8-1-1979, 23-1-1979 and 12-2-1979, which shows that on these dates he was not confined to bed, on account of alleged accident dated 6th December, 1978 and as such the appellant was negligent, as he did not contact his advocate after 6-12-1978 in order to find out pro--gress of his case thereafter till 5th February, 1979, when he engaged another counsel, who appeared on his behalf in Court on the said date. In view of this the learned Advocate for the respondent submitted that the s appellant cannot rely on the alleged negligence o1 his previous advocate nor he can rely on his alleged accident dated 6-12-1978 for non-complying with the orders dated 6-12-1978. In this connection the learned Advocate for the respondent relied on cases reported in PLD 1972 Quetta 5, PLD 1973 Kar. 228, 1976 SCMR 228, ' 1980 SCMR 779 and 1981 SCMR 276.
8. 1 have taken into consideration the above submission of both learned counsel and authorities cited by both the counsel before me. The appellant's counter-affidavit to the respondent's application for striking of the defence, does not disclose the exact period for which appellant was confined to bed from 6th December, 1978, on account of alleged accident and furthermore the Nazir's report in respect of deposits made in Misc. Rent Application No. 4287 of 1977 shows that appellant had deposited money in the said matter on 13-12-1971, 8-1-1979, 31.1-1979 and 12-2-1979 which shows that the was not confined to bed completely and as such he was in a position to contact his Advocate and find out pro--gress of his case after 6-12-1978, when he was unable to attend the Court on account of alleged accident but it seems that the appellant took no steps in this connection and as such was negligent. Further even from 19th March, 1979 when he was supplied the copy of respondent's appli--cation for striking of defence, he took no steps to deposit all the arrears even in the Misc. Rent Application upto 25th April 1979 and has given no explanation for this delay of over one month. In view of this, I am of the opinion, that appellant was negligent and a wilful defaulter in complying with the orders dated 6th December, 1978 of the learned Rent Con--troller and as such his defence has been rightly struck of by the learned Rent Controller for the reasons given by the learned Rent Controller in his order dated 12th March, 1980. 1n this conclusion of mine I am fully supported by the law laid down by1) the Honourable Supreme Court in cases reported in 1980 SCMR 229 and PLD 1972 Quetta 5, which has been cited by the learned counsel for the respondent. The authority cited by the learned counsel for the appellant namely 1973 SCMR 122 is based on different facts and is not at all applicable to the facts of the present appeal.
9. In view of my above conclusion and findings, I see no reason to interfere with the impugned orders dated 6th December, 1978 as well B as 12th March, 1980 as the said orders are based on congent reasons given by the learned Rent Controller and consequently find no merit in the above appeal, which is dismissed with costs. The interim stay orders passed in the above appeal are hereby vacated. However. The appellant is granted four months time to vacate the premises in his occupation and hand over its vacant possession to the respondent, provided, he continues to deposit monthly rents in accordance with the tentative order dated 16-12-1978.
M.Y.H.