1. ' This appeal has arisen from the order of the XIIth Senior Civil Judge and Rent Controller, Karachi, dated 11th November, 1962 whereby the defence of the appellant was struck off and he was directed to hand over the vacant possession of the demised premises within 60 days of the order.
2. ' Briefly stated the facts of the case are that the- appellant has been occupying the ground floor of the bungalow on Plot No, 18, S. No, J.M. 24, situating in Parsi Colony on M.A. Jinnah Road, Karachi , as tenant on monthly rent of Rs, 85 for last 51 years. The respondents who claim to be the owners/landlords of the disputed premises filed ejectment application on 28th May, 1976 seeking ejectment of the appellant from the said premises on the ground of default in payment of rent from January, 1975 to April, 1976. The appellant resisted the application, denying the existence of relationship of landlord-tenant between the- parties. The learned Rent Controller decided the question of the relationship as a preliminary issue, holding that the relationship of landlord-tenant exists between the parties. The decision of the Rent Controller with regard to the relationship was accepted as no appeal was preferred from the said decision.
3. ' During pendency of the rent proceedings, the learned Rent Controller passed a tentative order, dated 17th October, 1979 whereby the appellant was called upon to deposit in Court the rent arrears from January, 1975 to September, 1979 @ Rs, 85 p.m. Amounting to Rs, 4,930 before 20th December, 1979 and future monthly rent starting from October, 1979 before 15th of each calendar month. As the appellant failed to comply with the above order, the landlords moved an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 for striking off the defence of the appellant/tenant. After considering the objections filed by the appellant and the Nazir's report, the learned Rent Controller by the impugned order referred to above struck off the defence of the appellant hence this appeal.
4. ' After hearing the learned counsel for the parties at great length, the appeal was dismissed by short order, dated 23rd April, 1984 with no order as to costs. However, at the request of the learned counsel for the appellant it was directed in the said short order that the appellant will hand over the vacant possession of the disputed premises to the landlords within four months of the order subject to the condition that he will continue to deposit monthly rent regularly in the Court and in the case of default in this regard, he will be ejected from the disputed premises without further notice. Following are reasons in support of the short order.
5. ' As disclosed in the Nazir's report ; though the appellant has made compliance of the tentative order relating to future monthly rent by depositing rent of each month regularly in time, he has failed to deposit the rent arrears to the tune of Rs, 4,930 before 20th December, 1979 as required by the said order. Accordingly, the learned Rent Controller held the appellant to have defaulted in depositing the rent arrears before the target date and on that ground struck off his defence.
6. ' The learned counsel for the appellant has taken a serious exception to the impugned order, contending that the learned Controller has erred in holding the appellant responsible for non- compliance of the tentative order. According to him the appellant has been regularly depositing the rent in Court in the name of previous landlord and as soon as the tentative order was passed, the appellant approached the Rent Controller in whose Court he has been depositing rent with prayer that either he may be allowed to withdraw the deposited amount or it may be transferred to the Court of the Rent Controller where the ejectment proceedings are pending against him. The learned counsel submitted that, on the application of the appellant the learned Rent Controller passed order on 17th December, 1979 transferring the deposited rent to the Court of Rent Controller where the ejectment case was pending. He further submitted that the appellant was not to blame if the file containing that transfer order was not sent in time to the Court concerned because no one can be made to suffer for the Court's wrong act. In this connection, he placed reliance on lnshallah Begum v. Shamim Akhtar (1) wherein the learned single Judge applying the maxim "an act of Court shall prejudice no man", -held : "I am, therefore, of the view that the tenant could not be penalized for his default when there was a clear direction issued to her by the Rent Controller that she may deposit rent from the month of January onward."
7. There is no dispute with the maxim that act of Court shall prejudice no man. But the said maxim is not applicable in the instant case. It was the duty of the appellant/tenant to make compliance of the tentative order. When he was called upon by the said order to deposit rent arrears amounting to Rs, 4,930 before 20th December, 1979 perhaps he had two options before him : first, he should have straight away deposited the said amount in cash ; second, that he should have got the rent deposited by him in the name of the previous landlord in another Court, transferred to the Court where ejectment case was pending. While exercising his option he was to make sure that in compliance of the tentative order the deposit was made within time. It appears that the appellant chose to have the rent deposits made by him in the name of previous landlord transferred from the Court where the deposits were made to the Court where ejectment ease was pending. If he pursued that course, it was for him to ensure that the money stood physically transferred to the Court concerned. His duty was, by no means, over after merely the transfer order was passed by the Court in which the money was lying. He should have seen to it that in pursuance of the transfer order, the money was actually sent to and credited in the Court where ejectment case was pending. Even if the physical transfer was not possible in time the appellant should have obtained a copy of the transfer order and produced the same in compliance of the tentative order in the Court concerned. But there is no indication that any such effort was made by the appellant.
8. ' The learned counsel for the appellant contended that since the transfer order was passed on 17th December, 1979 it was not practicable to
(1) 1983 CLC 2853 ' obtain its copy and produce the same in the Court concerned within three days left at the disposal of the appellant. It would appear that the tentative order was passed on 17th October, 1979 whereas the appellant made application for transfer of rent deposits after nearly one month, i,e, 16th November, 1979. Again one month was taken by the Court to pass the transfer order on 17th December, 1979. Had the appellant been vigilant, he could have secured the transfer of the deposited amount well within time. It seems he took the matter lightly. On one hand he himself woke up late to move for transfer of the amount and on the other hand he did not make extra effort to see that the Court had disposed his application for transfer of the money expeditiously. Thus, the appellant himself was to blame if the money did not reach the Court concerned by the deadline fixed in the tentative order. It was none of the Court's act which had prejudiced the appellant.
9. It was the appellant's headache to ensure that compliance of the tentative order was made in time. If he thought that it was not possible or practicable to have money deposited in another Court transferred in time to the Court where the case was pending against him, he should B have exercised another option open to him namely that instead of having the said money transferred be should have arranged to deposit the amount in question in cash in compliance of the order.
10. Apparently, he showed no such anxiety in complying with the ten dative order.
11. ' The learned counsel for the appellant next contended that the learned Rent Controller made undue haste in passing the impugned order and proper opportunity was not given to the appellant for bringing evidence on record to show why despite the transfer order having been passed the money could not be transferred to the Court concerned. In this connection, he has relied upon Messrs Pan-Islamic Steamship Co. Ltd. v. S.M. Naqi and another ( I). I am afraid this authority does not help the appellant. In fact, there was no need to hold enquiry in the instant case to know the reason why the money deposited in another Court could not be transferred to the Court concerned in time. As has been pointed out above, it was the responsibility of the appellant alone to ensure compliance of the tentative order within time. He had various courses open to him for making due compliance of the said order. But as has been stated above even in the matter of transfer of the amount from one Court to another, he obviously moved leisurely and did not bother to show vigilance in getting the amount transferred within time.
12. ' In view of the above discussion, the appeal being without merit, was dismissed as mentioned above.
(1) 1982 CLC 1944