' Both the appeals under section 21 of the Sind Rented Premises Ordinance. 1979 are of identical nature, involving similar facts and same questions of law. They are, therefore, disposed of together.
They have arisen from the following facts.
2. Dr. Abdullah Ghangro, the appellant in F. R. A. No, 1101/82, and Mr. Lqbal Sheikh, the appellant in F.
R. A. No, 1102/82, are tenants of the respondent Mst. Tahira Begum in two separate tenements in her building identified by No, 152-E, Block No, 2, P. E. C. H. Society, Karachi, at specified monthly rent. It is alleged that they made default in payment of rent from January, 1980. The respondent filed against them ejectment applications under the provisions of the Sind Rented Premises Ordinance, 1979 on 12th January, 1982. The applications were registered as rent cases No, 173/82 and 174/82, respectively. The appellants resisted the respective applications filed against them. During the pendency of the proceedings, the learned Second Senior Civil Judge/ Controller, Karachi, made an order in each case, on 20th April, 1982, for deposit of monthly rent from the month of May, 1982 on or before tenth of each calendar month with further direction that the rent for the month of May, 1982 should be deposited on or before 10th of May, 1982. The order was not complied with. The respondent made applications under sections 16 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), on 8th August, 1982, for striking off the defence of the appellants. The appellants opposed the applications contending that they had deposited the due rent in the Nazarat in miscellaneous rent deposit cases within stipulated time and no default was committed by them. They filed photostat copies of some receipts. Report called from the Nazir indicated that no rent had been deposited in the account of the rent cases. The learned Controller held that the rent was not deposited in compliance with the orders, dated 20th April, 1982 and hence default was committed in deposit of rent and passed the impugned orders, dated 13th September, 1982 of striking off defence of the appellants and directed them to vacate the premises within specified period.
3. It is not disputed that rent was not deposited in the account of either case for ejectment in accordance with the orders of the Controller. The plea that the rent was regularly deposited in the account of miscellaneous proceeding was not substantiated. Only photostat copies of some receipts were filed with objections against the applications for striking off defence. Neither the original receipts were produced nor any report was obtained from the Nazir to prove that deposits were actually made in the account of miscellaneous proceedings. Having failed to prove that rent was deposited anywhere, the appellants were liable to have their defence struck off as envisaged under section 16 (2) of the Sind Rented Premises Ordinance, 1979.
4. A question similar to that involved in these appeals was considered by the Supreme Court in Civil Appeal No, K-74 of 1981 Messrs M. A. Yahya v. Messrs Nawab Abdul Malik (I). The facts of that case, briefly stated, were that the respondent therein bad filed ejectment proceedings against the appellant therein in respect of a Shop No, 48
(1) 1982 SCM R 1160 ' situated in Dada Bhoy Chambers, M. A. Jinnah Road, Karachi, on the ground of default in payment of rent etc. The Rent Controller passed a tentative rent order, on 21st August, 1971, directing that the rent for the month of August, 1971 should be deposited before 15th of September, 1971 and future monthly rent should be deposited before 15th of each calendar month. But the rent was not deposited as directed. The res- pendent in appeal before the Supreme Court filed an application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordi- nance, 1959, that the order of Controller had not been complied with and defence of the tenant (the appellant before the Supreme Court) may be struck off. The application was resisted on the ground that monthly rent had been deposited with the Controller in the miscellaneous proceeding for deposit of rent of the premises. The learned Controller rejected that plea on the ground that no evidence was produced before him to the effect that the rent bad been deposited in the miscellaneous proceeding and struck off defence of the tenant. First appeal was filed before District Judge, Karachi, and it was heard by an Additional District Judge, Karachi. Particulars of the deposits made in the miscellaneous proceeding were furnished before the Additional District Judge. It was observed that the deposits in the miscellaneous proceeding were made on or after 15th of the succeeding month whereas the order by the learned Controller was for making deposit before 15th of the calendar month. The learned Additional District Judge did not consider such deposits, as the compliance of the order of the Controller and dismissed the appeal. This view was upheld by the High Court in Ind Appeal No, 3491 78 by the judgment, dated 21st April, 1981, reported as Messrs M. A. Yahya v. Messrs Nawab Abdul Malik. The relevant part of the judgment of the Supreme Court reads as under :- "It cannot be denied that the appellants were required to deposit monthly rent, during the pendency of the ejectment proceeding, after the tentative rent order for deposit, dated 21st August, 1971 in the account of the ejectment case. No rent was admittedly deposited in this account. No fault can, therefore, be found with the application of the respondent for striking off the defence on the ground of non-compliance of the' order. It was for the appellants to produce proof in support of their plea that they had regularly deposited rent, in terms of the order, in Rent Case No, 1767 of 1970, even if this was regarded only as a technical non-compliance. However, in spite of opportunity no receipts were produced by them before the Rent Controller. Again when they themselves produced the deposits account in the 1st Appellate Court, they did not attempt to offer any explanation for the defaults, which they must have observed in the account. On the contrary. Their persistent defence was that they had complied with the order of the deposit."
5. The facts in these cases mentioned above are similar to those of the case referred to above, except that monthly rent in that case was deposited in the account of the miscellaneous proceeding but after the date specified by the Controller, whereas in this case the deposits of rent said to have been made in the miscellaneous proceedings have not been proved. Even if rent had been deposited in the miscellaneous proceedings, there was no compliance of the order of the Controller, particularly in the circumstances that no explanation was furnished for not depositing the rent with the Controller as directed.
5. The learned counsel for the appellants has cited a case Kadir Khan v. Mst. Kishwar Begum and others (1) wherein the Rent Controller had directed the tenant to deposit arrears of rent in the Court by a specific date and the tenant remitted arrears to the landlord by money order within the time allowed by the Court. The Controller did not consider the remittance as compliance of his order and hg struck off defence of the tenant and made order for his ejectment. It was held by a Single Judge of Peshawar High Court that the remittance of the arrears of the rent by money order showed that the tenant had acted in good faith and it could not be said that he had failed to comply with the order of the Rent Controller and the order of striking off the tenant's defence was set aside. But the facts of these cases are different as no payment of rent was made to the landlord and the plea of deposit of rent in the account of the miscellaneous proceeding was not established.
7. Reference may be made to the following cases cited by the learned counsel for the appellant :-
(1) Kalay Khan v. Jamia Masjid Akse Jamil (1982 SCM R 88).
(ii) Zafar Qureshi and others v. Khawaja Maqsoodul Hasan (1982 SCM R 392).
(iii) Gulzar Ahmed Pirzada v. Additional District Judge, Lahore and 2 others (1982 SCM R 617).
(iv) Mst. Bilqis Jahan Begum and others v. Mst. Khatoon Fatima (1982 CLC 451).
(v) Akhtar Hussain v. Kabir Husain (1982 CLC 702).
(vi) Mst. Rukhsana Begum v. Mst. Farida (1982 CLC 1298).
(vii) Mahboob Alam Varsi v. Syed Muhammad Shamim (1982 CLC 1968).
8. In the case at Serial No, (0, an order of striking off defence of the tenant on the ground of default id payment of rent due to negligence of the Advocate and the tenant was maintained. But that is not the case here. In the case at Serial No, (ii), delay of one day in deposit of rent was not condoned. Similarly, in the case Serial No, Gig, one day's delay in depositing rent was not condoned. No such question is involved in these cases. The cases at Serial No, (iv), (vi) and (vii) also had different facts. In the case at Serial No, (iv). The tenant was directed by the Controller to deposit arrears of rent within certain period and deposit monthly rent before specified date. The tenant went in appeal and obtained stay order against security. The appeal was dismissed. Even then, he did not deposit the rent as directed by the Controller. His defence was struck off on account of non-compliance of the order of the Controller. The order of striking off the defence was upheld by the High Court. In the case at Serial No, (vi), the question involved was whether an order for deposit of rent passed by
(1) 1983 CLC 613 ' the Controller under the provisions of section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959 was deemed to be an order under section 16 (2) of the Sind Rented Premises Ordinance, 1979, which has repealed the former Ordinance. That is not the question in these cases. In the case at Serial No, (vii), defence of the tenant was struck off on account of non-compliance of the order of the Controller for deposit of tentative rent. The explanation furnished by the tenant that he had met with an accident and he had no intimation of the order of the Controller was not accepted in the circumstances of the case and the order of striking off his defence was maintained. The facts of these cases are quite different. The case at Serial No, (v) could advance the case of the appellants.
The facts of that case were that the tenant made deposits of the rent in the miscellaneous proceedings between the same parties and it was urged that no default was committed in the compliance of the order of the Controller. His Lordship Mr. Justice Naimuddin, J, who decided the matter in Ilnd Appeal, made following observations :- "Although I agree with the submission of the learned counsel that if the appellant had deposited rent by mistake or erroneously in proceedings between the same parties, though he intended to deposit the same in rent proceedings in which the order for deposit of the rent was passed that would not amount to wilful default in compliance of such an order but the cases cited the learned counsel are not on the point argued by him."
' However, the tenant could not succeed in appeal as it was found that he had not deposited rent for two months. In the cases in those appeals, the appellant represented that they had deposited rent in the Miscellaneous proceedings between the parties but they did not establish that fact and consequently they were liable for having made default in depositing the rent in accordance with the order of the Controller.
9. It would appear that the case against appellants falls in line with the case of Messrs M. A. Yahya v. Messrs Nawab Abdul Malik mentioned at paragraph 4. They did not substantiate their plea that they had deposited rent in the account of the miscellaneous proceedings ; and even if that were done, no explanation was furnished for not depositing the rent in the account of ejectment cases as directed by the Controller. There is no doubt that rent was not deposited as per order of the Controller and their defence was rightly struck off by the learned Controller. Accordingly, both the appeals are dismissed with costs.
10. The appellants shall deliver vacants possession of the respective premises to the respondent within two months.