' This is an appeal against the order dated 6-3-1982 passed by the XVII Senior Civil Judge and Rent Controller who by his order struck off the defence of the appellant in pursuance of respondent's application under section 16(2) of the Sind Rented Premises Ordinance, 1979 in a Rent Case No, 641 of 1979.
2. The facts which relate to the instant appeal are that the appellant is a tenant of the respondent in respect of the premises bearing No, 1395/15, Federal 'B' Area, Karachi. Appellant used to pay Rs, 250 per month. The premises originally were owned by one Mr. Muhammad Abdul Sami from whom the present respondent purchased it by a registered deed. The appellant was the tenant of Mr. Sami to whom the rents were paid regularly. However, the present respondent/landlady filed a rent application for the eviction of the appellant on two grounds. Firstly for default and secondly for the requirement of the premises bona fidely for her own use. During the pendency of the rent application a tentative rent order was passed on 21-10-1979. On 12-1-1982 the respondent moved an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 alleging therein that a default has been committed with regard to the deposit of the rent in the Court and hence the tentative rent order dated 21-10-1979 has not been -complied with. The learned trial Court after calling for the report of the Nazir and hearing the parties came to the conclusion that there was a default for one month namely November, 1979 and hence he struck off the defence and directed the appellant to vacate the premises.
3. The learned counsel Mr. S. Zafar argued on behalf of the appellant while Mr. Munir Rehman, Advocate argued on behalf of the respondent. In the arguments the learned counsel for the appellant stated that the previous landlord Mr. Sami who was said to be relative of the respondent refused to accept the monthly rent for ulterior motives to create a ground for default, hence the appellant firstly tendered the rent by money order and on refusal to accept the same, he deposited the rents in Court vide Miscellaneous Rent Application No, 34/79. He has further argued and urged that there is no default committed during the pendency of the rent application and the calculations arrived at by the learned Rent Controller were wrong. On the other hand the learned counsel for the respondents has drawn my attention to the Nazir's report which is filed with the record of the Lower Court, certified copy of which is laid before me for examination. In order to understand the situation it is necessary to reproduce the tentative rent order dated 21-10-1979 which reads as under:- "I pass this rent order tentatively and direct the opponent to deposit future monthly rent at the rate of Rs, 250 p. m. In Court commencing from the month of October, 1979, before 15th of each succeeding month i. e. The rent of October, 1979 should be deposited before 15th November, 1979 and so on failing which his defence will be struck off. Put off to 12-11-1979 for issues."
4. It is to be noted that on 4-10-1979 Rs, 500 were deposited in the Miscellaneous Application vide receipt No 20105. There does exist on record the order of the Rent Controller. The order reads "Heard.
Opponent will be entitled to the adjustment of the amount he has already deposited in the Court."
5. In the written statement a pertinent admission is made that the rent for the month of October, 1978, was paid to the previous landlord Mr. Muhammad Abdul Sami and that thereafter he was depositing the rents from November, 1978 and onwards in the Court through Miscellaneous Rent Application No, 34/79.
6. The point boils down is that from November, 1978 the appellant deposited the rents in the Miscellaneous Rent Application No, 34/79. The list of the deposits is to be examined presently and I shall advert to the list a little later but in the meantime I would like to proceed to find out from the report of the Nazir whether any default was committed and for what month. The Nazir's report for the relevant period is as under :- {{TABLE}} 1 867 7 1 79.36453750 4 2 79.42223250 4 3 79.48062250 7 4 79.55278250 10 5 79.62580500 8 7 79.2325250 13 8 79.10912250 4 10 79.20106500 5 1 80.38627250 {{TABLE}}
7. A simple calculation would be that the deposit made on 7-1-1979 would cover the rent from November, 1978 to January, 1979. This is because according to the written statement the rent for the month of October, 1978 was paid to the previous owner thus the appellant started depositing rents in the Court from November, 1978 and the payment made on 7-1-1979 would be for the three months i,e, November, 1979 to January, 1979. The payment on 4-2-1979 would be for February, 1979.
Calculating month-wise up to 4-10-1979, it is clear that the last payment of Rs, 500 is for September and October, 1979. However, it is stated by the learned counsel for the appellant that the last payment of Rs, 500 dated 440-1979 covers the months of October and November, 1979. This is wrong as per report of the Nazir reproduced above. Thereafter the deposit was made on 5-1-1980 of Rs, 250 for the month of November, 1979. According to the tentative rent order this deposit ought to have been made by or before 15th of December, 1979. Therefore, it is clear that default has occurred with regard to the month of November, 1979.
8. The learned counsel for the appellant has referred me to the authority PLD 1965 Lab. 11 and NLR 1978 Civil 1099. Both these authorities contemplate that a waiver takes place in such case where belated application for striking off defence is made. The application in the instant case is filed on 12-1-1982 completely after about two years. Therefore, it should be construed that the respondent has waived the right.
9. It is for two years that the landlady/respondent was sleeping over the default or even if she did not know about default yet from the circum- stance that she has withdrawn the amount so deposited by the appellant, it appears that the default is not wilful one and it should be condoned.
10. I, therefore, accept this appeal and set aside the order of the learned Rent Controller. However, there are two issues framed and one important issue is with regard to personsl bonafide requirement of the premises for landlady is not decided yet some evidence is recorded by the Rent Controller. On the receipt of the case the Rent Controller shall immediately proceed to decide the two issues as expeditiously as possible. Order accordingly.