' This is an appeal against the order, dated 11-5-1982, passed by the learned Senior Civil Judge/A. S. J. & Rent Controller XII at Karachi, in Rent Case No, 2382/77, striking off the appellant's defence for the commission of the default for the tentative rent order for the months of June and July, 1979. The brief facts leading to the filing of the above appeal are that the respondent filed the aforesaid rent case on two grounds, namely, sub-letting and default for the months of June and July, 1979. The above application was resisted by the present appellant. A tentative rent order was passed by the learned Rent Controller on 31st January, 1978. It seems that the respondent filed an application on 8th September, 1981 for striking off the appellants' defence on the ground that the appellants had not deposited the rent after 30th August, 1979. It may be advantageous to reproduce hereinbelow the above application as it may be pertinent with reference to the contentions raised by the learned counsel for the appellants which reads as follows :- ' Application under section 16(2) S. R. P. Ordinance, 1979 "It is prayed on behalf of the applicant that the opponent has committed default in payment of rent in Court and has not complied the rent order passed in the above case for the deposit of monthly rent and has not deposited rent after 30-8-1979 as such his defence may be struck off and the applicant be put in vacant and peaceful possession."
' Upon the filing of the above application, the learned Rent Controller sent for Nazir's report, which indicated that the appellants had deposited rent for the months of June and July, 1979 on 30th August, 1979 against receipt No, 13053 for a sum of Rs,
96. The above application for striking off the defence was resisted by the present appellants and written objections were filed. However, the learned Rent Controller after hearing the parties passed the order under appeal and allowed the respondent's application for striking off the defence. The appellants being aggrieved by the above order has filed the present appeal.
2. In support of the above appeal Mr. Rehmat Elahi, learned counsel for the appellants has urged as follows :-
(i) That there was no default alleged in the respondent's application for the months of June and July, 1979, but what was alleged was that the appellants had not deposited rent after 30th August, 1979 and hence the learned Rent Controller waS not justified in striking off the defence on a ground which was not urged.
(ii) That at the time of the passing of the order for striking off the defence, the learned Rent Controller was obliged to determine the amount payable by the appellants, which he has failed to do.
' On the other hand Mr. Rashiduddin Ahmed Khan, learned counsel for the respondents has contended as follows :- (0 That in any case the default for the month of June was brought within the knowledge of the appellants on the submission of the Nazir's report and as the appellants had the opportunity to meet the above ground, non-pleading of the default for the above month specifically in the application for striking off the defence is not fatal.
(ii) That in view of the latest pronouncement of the Supreme Court in the case of Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1, it was not incumbent upon the learned Rent Controller to reopen the question of actual liability or to determine it finally.
3. As regards the first contention of the learned counsel for the parties, it may be observed that it is true that in the application filed by the respondent for striking off the defence, there was no specific plea raised that the appellants had committed default for the month of June, 1979, but the plea raised was that the appellants had failed to deposit the rent after 30th August, 1979, but the fact that the default was committed inter alia for the month of June, 1979 came into the light after the submission of the report of the Nazir, to which the appellants had the notice. However, it was vehemently urged by Mr. Rehmat Elahi that since the respondent had specifically pleaded default after 30th August, 1979, it amounted to waiver on the part of the respondent for any alleged default of the tentative rent order for a period prior to 30th August, 1979.
' On the other hand Mr. Rashiduddin Ahmed Khan, learned counsel for the respondent has referred to the case of Messrs N. A. Yahya v. Messrs Abdul Malik Estate (1), in which there was a tentative rent order passed on 21st August, 1971, the landlord filed an application under section 13(6) of the late Ordinance, 1959 on 1-7-1976, alleging therein, that the tenant had committed wilful non- compliance of the tentative rent order. The report was sent for. Upon the receipt of the Nazir's report, it was found that the rent for the months of August, 1971, November, 1971, December, 1971, January, 1972 and February, 1972 were deposited on 16-9-1971, 16-12-1971, 19-1-1972, 15-2-1972 and 17-3-1972 respectively instead of before on 15th of each month. Consequently, the learned Rent Controller passed the order for striking off the defence. The above order was confirmed by the learned Single Judge of this Court. The tenant filed a petition for leave before the Supreme Court, which was dismissed through the above-reported judgment and it was held that notwithstanding that the application of the landord contained no particulars as to the period of default, the order of the learned Rent Controller was justified as the tenant had the notice and opportunity to meet the default. In the instant case, though factually the respondent had not pleaded the default for the month of June, 1979, but upon the submission of the report by the Nazir, it was evident that the default was committed for the above month of June, 1979. I may mention that factually the default was also committed for the month of July, 1979 as the rent was deposited on 30th August, 1979 even for the month of July, 1979 and not before 15th of August, 1979. The appellants after having committed default and after having been told, did not submit any plausible justification for the commission of the above default. In my view, it is for a tenant to come forward to the Court immediately upon the commission of default of a tentative rent order and to justify the commission of such default for a reason beyond his control. The appellants did not make any such attempt. Even if the respondent would not have filed the above application, it was for the appellants to have filed - an application for the condonation of the delay on their part for a reason beyond their control. The ratio decided of the above Supreme Court judgment on all fours is applicable to the instant case.
(1) 1982 SCMR 1160
4. Reverting to the second contention of Mr. Rehmat Elahi that the learned Rent Controller was under obligation to determine finally the amount payable by the appellants. In this regard, he has drawn my attention to the fact that in the accounts filed by the appellants, they had claimed adjustment of certain amount of the taxes paid by them, but no adjustment was given by the learned Rent Controller. This might have been a relevant consideration for deciding the question of default prior to the recent Supreme Court case, namely, Mst. Akhtar Jehan Begum and 4 others v.
Muhammad Azam Khan (1), in which it has been clearly laid down by the Supreme Court that for the purpose of passing an order under section 13(6) of the late Ordinance, a Rent Controller is not required to determine quantum or rate of rent finally if the same is in dispute, but is required to determine such amount approximately and consequence of non-compliance of order under section 13(6) entails summary disposal of the case without taking any further proceedings ipso facto on the basis of such non-compliance by striking off defence and passing order of eviction. In view of the above clear pronouncement of the Supreme Court, it is not open to me or even it was not open to the learned Rent Controller to go into the question, whether factually the appellants were entitled to adjustment of any amount at the time of passing of the tentative rent order.
5. For the aforesaid reasons the appeal is dismissed with no order as c to costs. However, I allow one year time to the appellants to hand over the vacant possession on the condition that the appellants shall continue to deposit rent in terms of the learned Rent Controller's order, falling which the respondent shall be at liberty to file an execution application before the expiry of the above period of one year. Furthermore, in case the appellants fail to hand over the vacant possession of the premises in question on the expiry of the above period of one year, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellants.
(1) PLD 1983 SC 1