1. Ejectment Application No,2159 of 1973 was filed by the respondent against the appellant in which ejectment was sought on the ground of non-payment of rent since February,1973. Rent was claimed at the rate of Rs,175 per month for the premises. The appellant/tenant took the plea that he had paid rent for the months of February, March and April, 1973 and also contended that without his knowledge the landlord occupied a portion of the premises and after raising construction handed over possession of the said portion to one Dr.Aziz alias Sabir Hussain.
' The tenant/appellant also took the plea that he had agreed to purchase the property from the landlord/respondent in May,1973 and deposited a sum of Rs,2,000 towards the part payment of sale consideration and therefore the relationship of landlord and tenant between them came to an end.
2.(i) Answering the preliminary issues framed in the case, by order passed on 15th September,1975 the Rent Controller held that there exists relationship of landlord and tenant between the parties.
The Rent Controller thereafter agreeing with the contention raised by the Advocate for the landlord held that no further enquiry in the case was necessary and without recording evidence relying on the case of Nisar Ahmed v. Nazar PLD 1974 Lah.489 directed ejectment of the tenant/appellant.
The appellant filed an appeal against the said order which was dismissed by the lower Appellate Court.
(ii) Against the said aforementioned order, the tenant/appellant preferred Second Appeal No,5 of 1977, which was allowed with the observation that the circumstances were not such where the default was either admitted by the tenant or proved against him which could entitle the Rent Controller to pass an order of eviction against the tenant straightaway after holding that the relationship of landlord and tenant existed between the parties. Accordingly the orders of the courts below were set aside and the case was remanded to the Rent Controller for passing a tentative rent order and for taking further proceeding in accordance with the law. Since the case was pending since 1973 and that ejectment was sought on the sole allegation of default in payment of rent, it was directed that the Rent Controller shall after passing the tentative rent order in the case make efforts to dispose of the case within 6 months.
3. The case after remand proceeded before XIth Civil Judge/Rent Controller at Karachi who after hearing the parties on 15th October,1983 passed order directing the tenant/appellant to deposit rent. The order being relevant for disposal of this appeal is reproduced below:- "The learned counsel for applicant argued that the opponent has failed to pay the rent since from 1st February,1973 at the rate of Rs,175 per month. On the other hand the learned counsel for opponent contended that the applicant has forcibly occupied the half portion of the disputed premises. Therefore the opponent is not liable to pay the rent of Rs,175 per month and the opponent is entitled only 'to pay its half rent amount. He next contended that the opponent has also paid rent for the months February, March and April,1973 through money order, which was received by the applicant.
' The learned counsel has also placed photo copy of such money order. After patient hearing to the learned counsel and the perusal of the case papers, I am of the fair opinion that the assertions of opinion will be considered at the time of final decision of this case. Anyhow without prejudicing the merits of this case, I hereby direct the opponent that he should deposit the arrear of rent amount of R.22,400 for the disputed premises since from February,1973 till September,1983 at the rate of Rs,175 p.m. In the Court before 10th November, 1983.
' In future the opponent should also deposit the rent of Rs,175 p.m. Before 10th of each calendar month. However the rent of February, March, April, 1973 is disputed the applicant should not withdraw the same till the decision of this case."
' As the tenant/appellant failed to deposit arrears of rent amounting to Rs,22,400 for the period February, 1973 till September, 1983 and also did not deposit any amount towards future rent as directed by order passed on 14th December,1983 with the observation that there was clear violation of the rent order, struck off the defence of the appellant/tenant who was directed to hand over vacant possession of the premises in question to the landlord within sixty days.
4. Against the above order the present appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979.
5. In support of the appeal, fixed for Katcha Peshi, the learned Advocate raised the following grounds:-
(i) That the appellant/tenant had paid rent from February, 1973 till April, 1973 before even filing of the ejectment case, as such the direction given by the Rent Controller to deposit rent from February, 1973 till September, 1983 was defective.
(ii) That before the filing of the ejectment case the tenant/appellant had been deprived of half of the portion of the demised premises, as such the tenant was not liable to pay rent more than half of the agreed rate.
6. As regards the ground No,1, it would be seen that arrears of rent is claimed from February,1973 to September,1983 i,e, for 128 months out of which even if there is any error (which is not proved) in directing deposit of rent for the three months in dispute only, that would not render the order a nullity a non-compliance of which could not result in striking off the defence.
7. As regards the ground No,2, I find that no evidence was led by the appellant/tenant to substantiate the plea raised that he was deprived of half of the portion of the demised premises by the landlord. In the absence of production of any material on record to prove even prima facie the plea raised as above by the appellant, the Rent Controller in my opinion was justified to leave the question open to be considered at the time of final decision of the case.
' Thus I find that no valid reason has been shown to hold that the order for deposit of rent passed on 15th October,1983 was erroneous.
8. The upshot of the above discussion is that the appellant/tenant, has been rightly found by the Rent Controller, to have committed default in compliance to the order passed on 15th October,1983.
No case has been made out calling for any interference in the impugned order dated 14th December,1983 striking off the defence of the appellant/tenant who has avoided payment of a single paisa to the respondent/landlord for last about 11 years.
' The appeal is accordingly dismissed in limine.
' The appellant is granted two months time to vacate the premises, on the expiry of which period writ of ejectment shall be issued without any notice to him.