1. ' This is an appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the 'Ordinance') against the order of the Xlth Senior Civil Judge and Rent Controller, Karachi, dated 18th August, 1982, on an application, made by the respondent under section 16(2) of the Ordinance, striking off the defence of the appellant on the ground that the appellant had committed default in depositing the arrears of rent within the time specified in the tentative rent order, dated 5th May, 1981. The impugned order further directed the appellant to hand over vacant possession of the premises to the respondent within 60 days of the date of the order.
2. ' The facts leading to the passing of the impugned order as under :- ' The appellant is tenant of the respondent in respect of premises No, 148-C, Block-10, Federal '13'
3. Area, Karachi at the monthly rent of Rs, 900. The respondent filed an application under section 15 of the Ordinance against the appellant in the Court of XIth Senior Civil Judge and Rent Controller at Karachi, alleging that the appellant under the terms of the lease agreement executed in December, 1972 had to pay monthly rent in advance every month but in contravention of the said agreement being a habitual and chronic wilful defaulter he used to pay the monthly rent at his sweet will sometimes after several months and at other times after two months. It was further the complaint of the respondent in the application that many times the appellant had made payment of rent through false and fraudulent cheques which had been dishonoured by the bank concerned several times and he had made a complaint against the appellant before the Martial Law Authorities. It was further specifically alleged that the appellant failed to pay monthly rent from the month of August, 1980 and at the time of filing of the application, a total sum of Rs, 2,700 was due from him towards the rent.
4. ' The respondent also asked for ejectment of the appellant on the ground that he required the premises in good faith for the use of his children and his own use.
5. ' On 7th December, 1980, the appellant filed written statement admitting the tenancy but stating that initially the rent had been fixed at Rs, 500 plus Rs, 18 for water charges per month but was increased to Rs, 600 including water charges in the year 1975. Later after discussions before the Martial Law Authorities the rent had been enhanced to Rs, 900 per month in the year 1977 and that amount included the water charges. It was further contended by the appellant that as the respondent was a public servant and lived most of the time out of Karachi, it had become the practice that the rent was paid through bank draft instead of through cheques as previously. The appellant denied that he had committed default in the payment of rent or contravened any other terms and condilions of the agreement. With regard to the ground of bona fide require ment for personal use, the appellant denied the same.
6. ' The proceedings were pending before the Court and on 5th May, 1981, the Controller passed tentative rent order of that date directing the appellant to deposit the arrears of rent from September, 1980 to 30th October, 1981 at the rate of Rs, 900 per month amounting to Rs, 7,200 within 30 days. He was further directed to deposit future rent in the Court on or before 10th of each calendar month.
7. ' On 15th August, 1981, application under section 16(2) of the Ordinance was filed on behalf of the respondent stating that the appellant had violated the order passed on 5th May, 1981 for deposit of arrears of rent and the current monthly rent. It was alleged therein that the appellant had deposited only a sum of Rs, 3,600 on 25th January, 1981, although he had been ordered to deposit the arrears amounting to Rs, 7,200 within one month of the order. It was further contended that the appellant had deposited a further sum of Rs, 8,100 on 4th July, 1981 towards the arrears and also the rent for the months of April, May and June, 1981. It was, therefore, prayed that the defence of the appellant be struck off.
8. ' The learned Controller asked for report of Nazir about the amounts deposited and it transpired therefrom that Rs, 3,600 had been deposited on 21st May, 1981 and Rs, 8,100 had been deposited on 4th July, 1981.
9. ' On behalf of the appellant, objections to the application were made stating therein that the appellant had not committed any default inasmuch as he had already paid rent to opponent through bank drafts No, 245754/5, dated 23rd November, 1980 for Rs, 2,700 and No, 245772/1, dated 28th May, 1982 for Rs, 2,700 but the same had not been cashed by the respondent. It was further argued that the appellant had filed application for return of the aforesaid drafts so that the amount could be released from bank and deposited in Court but the drafts had not been returned.
10. In the aforesaid objections it was admitted that on 21st May, 1981 only a sum of Rs, 3,600 towards rent from March, 1981 to June, 1981 had been deposited and further that on 4th July, 1981, Rs, 8,100 including the amount of draft and rent from July to September, 1981 had been deposited.
11. ' Mr. S. S. Hamid, the learned counsel for the appellant has in this appeal also contended that in spite of the fact that the two bank drafts of Rs, 2,700 were lying with the respondent. The learned Controller had not allowed credit for that amount in the tentative rent order and he further argued that since the appellant considered that he had already deposited the amounts of bank drafts, due to misunderstanding he had deposited only Rs, 3,600 on 21st May, 1981 in obedience to the directive in the tentative rent order. For a proper appreciation of this contention it is necessary to refer to the tentative rent order, dated 5th May, 1981, which "ORDER ' Heard counsel. Opponent has taken plea that he has sent rent through bank draft and applicant has produced both bank drafts. There is no dispute on period and rate of rent accordingly direct the opponent to deposit arrears of rent for September, 1980 to 30th April, 1981 at Rs, 900 per month within 20 days and future rent on or before 10th of each succeeding calendar months till final disposal."
12. ' It is quite clear from a perusal of the order quoted above that although the fact of sending of bank drafts by the appellant to the respondent was known to the learned Controller. We had for obvious reasons not considered a decision of this Court the same to be payment already received by the respondent. In a decision of this Court reported in Ghafoor Ahmad v. Anwar Baig (1) it was inter alia held that tender of rent by cheque was not legal tender. The bank drafts, it has been argued, are different from cheques in that there could be no question of the same being dishonoured, however, as already stated the tentative rent order passed by the learned Controller was very clear on the point that the amount of arrears had to be deposited in the Court and so also the current monthly rent. It has been further argued by the learned counsel for the appellant that the amount deposited within the specified period of 30 days, of the passing of the order was, due to a misconception on the part of the appellant, who when advised about the necessity to comply with the order had deposited the balance of the amount alongwith the current rent which had become due on 4th July, 1981. The aforesaid argument is of no avail as it is obvious that there was contravention of the order of the learned Controller in not depositing the arrears of rent specifically mentioned in the order within the period of time specified. The learned Controller, therefore, rightly observed that the appellant had committed default in depositing the arrears of rent within one month as, instead of depositing Rs, 7,200 only a sum of Rs, 3,600 was deposited within the stipulated period and further that even the delay of 2 days in deposit of the further amount has gone unexplained as even if the explanation with regard to the aforesaid further amount having been deposited on 4th July, 1982 due to the closing of the Courts for summer vacation is considered, the Courts opened after summer vacation on first or second of July.
13. ' In Mst. Akhtar Jehan Begum and 4 aihers v. Muhammad Azam Khan (2), a recent decision of the Supreme Court, the provisions of subsection (6) of section 13 of the Urban Rent Restriction Ordinance, 1959 were considered and it was observed as under :- . "The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has not to determine the question of quantum or rate of rent, finally if the same is in dispute, but to determine such amount "approximately". This is the clear import of the words underlined* above. Further this excludes final adjudication of this question. In the premises the consequence of non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings ipso facto on the basis of such noncompliance by striking off the defence and passing the order of eviction."
14. ' In Mushtaq Hussain v. Muhammad Shaft (3), it was observed as under :- "Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
15. [Here in italics]
(1) PLD 1982 Kar. 403 (2) PLD 1983 SC I
(3) 1979 SCMR 496 The deposit of arrears of rent and the current future rent had to be' in the manner directed in the tentative rent order passed by the learned Controller and, therefore, also any tender of rent made earlier which had not been actually even realised by the landlord could not have been considered by the learned Controller for the purpose of adjudging the arrears of rent. There is, therefore, no scope for any misunderstanding about the matter. Once there is non-compliance of order on the authority of the decision of the case Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan, already referred to above, summary disposal of the case without taking any further proceedings ipso facto on the basis of noncompliance by striking off defence and passing of order of eviction is incumbent on the Controller. I, therefore, see no weight in this appeal which is accordingly dismissed, however, with no order as to costs.