' This first rent appeal is directed against the order dated 19th August, 1981, passed by the learned Rent Controller, Karachi, impugned therein, whereby defence of the appellant (hereinafter called as tenant) has been struck off and he has been directed to vacate the demised premises within two months.
2. Briefly stated the relevant facts are that respondent/landlord filed ejectment application under section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on 25th October, 1979, on the grounds of default in the payment of rent for 8 months @ Rs, 375 per month. The tenant filed written statement in which rate of rent is admitted but default is denied. Subsequently, tentative rent order was passed On 14th January, 1979 in which there was a typographical mistake and rate of rent was mentioned as Rs, 200 per month instead of Rs, 375 per month. Subsequently, vide order dated 10th December, 1979 after hearing the parties the learned Rent Controller modified the tentative rent order to the extent that the rate of rent be read as Rs, 375 per month on the ground that it was a typographical mistake; On 18th November, 1981, an application was filed for striking off the defence of the tenant on the ground that there was non-compliance of the tentative rent order.
Afte obtaining the report the Nazir and hearing the tenant, who filed objections, the learned Rent Controller has passed the impugned order stated above.
3. The learned counsel for the appellant submitted before me that the learned Rent Controller was not competent to modify the tentative rent order. According to the learned counsel on 10th December, 1979 when the rent order was modified West Pakistan Urban Rent Restriction Ordinance, 1959, was not in force and under the new law i. e. Sind Rented Premises Ordinance, 1979, the learned Rent Controller could have passed rent order under section 16 thereof as a fresh order but that has not been done and instead of that original rent order dated 14th January, 1979 has been reviewed and modified which is not allowed either under the old law or under the new law. It was further submitted in this context that the original rent order remained operative till final determination of the proceedings and before that it could not be modified or varied. Now so far the correct legal position is concerned, the Sind Rented Premises Ordinance, 1979, was promulgated and came into operation from 21st November, 1979, which is the date of issuance of notification. Section 27 of the new law relates to the subject of repeal of old law but subsection (3) thereof saves all pending cases instituted under the old law to be continued and disposed of in accordance with the provisions of the new law and further subsection (4) thereof saves all the orders passed in such cases under the old law to be deemed to have been passed under the new law. Order dated 10th December, 1979, therefore, stands protected under the new law and cannot be assailed on the ground that the learned Rent Controller was not competent to pass it. Moreover, the impugned order before me is not the order dated 10th December, 1979 of the learned Rent Controller but it is order of striking off the defence which was passed on 19th August, 1981. No objection was taken before the learned Rent Controller against the order dated 10th December, 1979 by which original rent order was modified. Mr. Khalilur Rehman, counsel for the respondent, has submitted before me that it was only typing mistake which was corrected by the learned Rent Controller as there was never any dispute between the parties with regard to the rate of rent which was Rs, 375 per month.
It was further submitted that this typographical mistake was corrected with the consent of both the parties. I have perused the order passed on 10th December, 1979 by the learned Rent Controller which clearly shows that typing mistake as stated above was intended to be modified and with that another mistake was also modified which related to the framing of issue on the basis of requirement of the premises for personal use which was substituted by the issue on the ground whether there was any default committed by the tenant as the pleadings of the parties indicated that there was only dispute with regard to the default. Furthermore, the record also shows that when application for modification of the original tentative rent order was filed on 2nd October, 1979, no objections were filed by the tenant against it before the learned Rent Controller. Mr. Khalilur Rehman has further submitted that this was so for the reason that right from the beginning the tenant had never challenged the rate of rent to be Rs, 375 per month, as is reflected in the written statement filed by the tenant in which he has mentioned that .He has been depositing rent voluntarily in Miscellaneous Application No, 3165/77 at the rate of Rs, 375 per month. It is further submitted that when the original rent order was passed on 14th January, 1979 Advocates for both the parties were present but at that time the typing mistake with regard to the rate of rent was not noticed. Subsequently, the tenant bad to pay-the rent according to this rent order and he came to know about this typing mistake but did not point out to the Court and instead went on depositing the rent in such manner that he was taking advantage of this mistake knowing fully well that the rate of rent was Rs, 375 per month and not Rs, 200 per month.
4. As stated above application for striking off defence was filed on 18th November, 1980 and before that it appears that the landlord applied for payment of rent to him deposited by the tenant and then he discovered that there was not proper compliance of the tentative rent order. Anyway, the tenant filed objections before the learned Rent Controller in which it is reiterated once again in paragraph 1 which is reproduced as under :- "Para. 1 of the application is admitted. In this regard it is submitted that although the tentative rent order dated 14th January, 1979 was passed by this Honourable Court directing the opponent to pay the rent at the rate of Rs, 200 per month but the opponent continued to pay the rent in the Court at the rate of Rs, 375 per month only except for few months."
5.
5. In the objections filed by the tenant what was really disputed was that no default was committed and that the report of the Nazir was faulty in some respects. After hearing both the parties the learned Rent Controller has passed the impugned order in which he has come to the conclusion that default was committed by the tenant. Report of the Nazir is reflected in the impugned order from which it appears that from 11th February, 1979 to 13th December, 1979 some payments were made by the tenant of Rs, 400 on each occasion and thereafter some payments were made again from 15th January, 1980 onwards of Rs, 375 per month on some occasions. Rent order provides that current monthly rent is to be deposited before 15th of each calendar month. The learned Rent Controller has taken into consideration four late payments in the deposit of current rent apart from the fact that there was no deposit of rent in the month of July, 1980. It appears from the impugned order that tenant did not furnish any explanation before the learned Rent Controller for late payments excepting raising plea that non-compliance was due to bona fide mistake and misunderstanding and the tenant had no intention to defy the orders. It is further stated in the impugned order that since no explanation has been put forward for the delay the application for striking off the defence was allowed. Even before me the learned counsel appearing for the tenant was not able to explain satisfactorily late payments. There is deposit of rent on 15th January, 1980 and the learned counsel could not explain as to why the rent was deposited on 15th and not before that. There is another deposit on 15th March, 1980 for which an explanation has been given that since 14th was Friday, deposit was made on the following day. There is another deposit on. 16th August, 1980 for which it is stated that 14th August, was holiday and 15th August was Friday as such deposit was made on 16th August, 1980. Again there is another deposit on 15th October, 1980 and the learned counsel stated that he has absolutely no explanation as to why the payment was not made on 14th October, 1980 or before that. It also appears from the report of the Nazir that no deposit was made in the month of July, 1980 and before the learned Rent Controller any explana.
Tion was given whatsoever as to why no deposit was made in this month. However, when the appeal was filed in the High Court a report has been produced as Annexure `E' which is dated 15th July, 1980 ana it was submitted by the counsel that rent was deposited in the month of July, and the tenant was not able to produce this receipt before the learned Rent Controller. Alongwith this receipt some other receipts have also been produced by the appellant in the High Court as Annexures D, F and G. Mr. Khalilur Rehman, counsel for the respondent, has submitted before me that Annexure `E' is a suspect document in which neither the proper case number is given nor it is properly signed as are other receipts which have been produced by the appellant alongwith the memorandum of appeal. I have carefully scrutinized Annexure `E' with Annexures 'D, F and G' and I feel inclined to agree with Mr. Khalilur Rehman that Annexure 'E' D appears to be a suspect document. Other receipts produced and mentioned above are very clearly written in legible hand writing and even the signature of officer receiving the money is clear and eligible and it .Is not so in Annexure `E'. In all other receipts Case No, 3668/78 is clearly mentioned excepting Annexure 'E.' in which the name of the person from whom money is received is not legibly mentioned neither there is signature of the officer who has received the money. Mr. Khalilur Rehman further submitted that apart from defects in this receipt as mentioned above and the fact that it was not produced before the learned Rent Controller even this receipt also shows that deposit was made on 15th July, 1980 which was late deposit and beyond the period stipulated in the rent order. It has been checked and found that 14th July, 1980 was not a holiday and the learned counsel for the appellant could not offer any explanation as to why this deposit was not made on 14th July, 1980. The learned counsel for the respondent submitted before me that defence has been rightly struck off as the tenant had failed to explain the delay and has cited in support of the proposition decision of the Supreme Court in the case of Messrs Cresent Publicity Services v. S. M. Younis and others. In the reported decision the High Court in the second appeal had struck off the defence of the tenant on account1 of non-compliance with the direction of the High Court which was to the effect that the tenant was to deposit monthly rent before 15th day of each calendar month in the terms of the rent order passed by the Controller. Counsel appearing for the tenant before the High Court admitted that tenant had committed default but it was a single default. The learned Single Judge of the High Court was pleased to strike off defence even when default was single default because the tenant bad brought himself within the mischief of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and the Supreme Court declined to interfere maintaining the order of the learned Single Judge of the High Court. In the circumstances I hold that there are three defaults stated above for which the learned counsel for the appellant has not been able to give any explanation as such following the principles laid down by the Supreme Court in the case cited above I do not feel inclined to interfere with the impugned order which appears to have been passed validly with cogent reasons.
6. It was contended by the learned counsel for the appellant that some over payments were made by the tenant while depositing rent as is reflected in the report of Nazir. According to him the tenant has deposited rent at the rate of Rs, 40Q on 4 occasions on the dates mentioned against them. It appears that on 11th February, 1979, 14th March, 1979. 14th April, 1979, 14th July, 1979, 13th September, 1979, 19th November, 1979 and 13th December, 1979 rent was deposited by the tenant at Rs, 400 on each occasion. Tentative rent order was modified on 10th December, 1979 to the extent that monthly rent is to be read as Rs, 375 per month instead of Rs, 200 per month in the original rent order. In the circumstances, the rent order as modified is effective from the date when the original rent order was passed. Moreover, there is no dispute about the rate of rent as stated above and even the tenant has never disputed it in the written statement or anywhere else at any subsequent stage in the proceedings before the Rent Controller. Therefore, it can be said that there was over payment of Rs, 25 made by the tenant on 7 occasions as he had paid Rs, 400 instead of Rs, 375 as such there was over payment of Rs, 175 in all. Even this amount is less than rent for one month.
Secondly, even during that period i. e. 11th February, 1979 to 13th December, 1979 when payment of Rs, 400 were made by the tenant on each occasion there are non-payments for two months as rent was no paid in the month of May, and June, 1979 and October, 1979, so there F is default for the periods stated above for which there is no explanation.
7. In the circumstances and the facts and reasons mentioned above I uphold the impugned order and dismiss the appeal. Appellant is directed to handover vacant possession of the demised premises to the respondent within two months of the date of this judgment. 1980 SCM R 779