' Ejectment Case No, 126 of 1979 was filed on 7-1-1979 by the respondent/ landlord for the ejectment of the appellant/tenant from the premises in question on the ground of personal requirement and subletting. Written Statement was filed by the appellant resisting the ejectment application and denying the adverse allegations made against the appellant in the ejectment application. Rent account dated 6-5-1979 was filed by the respondent in which it was shown that rent had been paid upto April, 1979. On 28-5-1979 rent account was filed by the appellant in which it was mentioned that the rent had been paid till May, 1979 and no rent was due. On 5-8-1979 rent order was passed in the presence of the Advocate, who was appearing then for the respondent. No one was present on behalf of the appellant. By the order dated 5-8-1979 it was observed that rate of rent of Rs, 700 per month was admitted, the respondent's Advocate had stated that he had received rent till April, 1979 and the rent from May, 1979 was due, the appellant in his rent account had shown that rent upto May, 1979 had been paid but no proof had been shown, and accordingly by the tentative rent order the appellant was directed to deposit arrears of rent from May, 1979 to July, 1979 for three months at the rate of Rs, 700 per month amounting to Rs, 2,100 within 30 days from the date of the order. An application was filed by the respondent under section 16 (2) of the Sind Rented Premises Ordinance, 1979, dated 12-5-1981 for striking off the defence of the appellant on the ground of the non-compliance with the tentative rent order dated 5-8-1979. By the impugned order dated 1-2- 1982 this application was accepted and the defence of the appellant was struck off and he was ordered to be ejected from the premises in question. Being aggrieved, the appellant/tenant has approached this Court in this first rent appeal under section 21 of the 1979 Rent Ordinance. I have heard Mr. Munawar Abbas, learned counsel for the appellant and Mr. Kamruddin T. Kabani, Advocate for the respondent.
2. It was admitted by the learned counsel for the respondent that prior to the passing of the tentative rent order dated 5-8-1979, the procedure for payment of rent by the appellant to the respondent was that the appellant would sent the cheque for rent made out in the name of the respondent and the cheque would then be deposited by the respondent in her account. It was contended by the learned counsel for the appellant that in fact when the tentative rent order dated 5-8-1979 had been passed, the rent of May, June and July, 1979 had also been paid by the appellant to the respondent in the same manner as was the practice previously. It is admitted by the learned counsel for the respondent that in fact cheques had been received for the rent for May, June and July, 1979 and they had been deposited by the respondent in her account and the amounts had been duly credited to the account of the respondent. The appellant has also relied upon bank statement to the effect that the rent had in fact been paid through cheques which was credited to the account of the respondent. This material had also been placed before the learned Rent Controller. However, it was submitted by the learned counsel for the respondent that when he appeared before the Rent Controller on 5-8-1979, he was not aware of the fact that rent had in fact been received for months of May, June and July, 1979 and as such he relied upon the rent account previously filed on behalf of the respondent which was to the effect that rent had been paid upto April, 1979. The admitted factual position that emerges from the documentary evidence on record as well as the admission of the learned counsel on behalf of the respondent, therefore, is that on 5- 8-1979 admittedly rent had been paid upto July, 1979 and the Rent Controller was not informed about the correct position and, therefore, in the absence of the appellant and his counsel, a wrong order had been obtained that rent had been paid only upto April, 1979.
It is further an admitted position that if the rent of three months admittedly paid by the appellant to the respondent prior to 5-8-1979 when the tentative rent order was passed, is taken into consideration and appellant is granted credit for the same, there would be no default on the part of the appellant and his defence could not be struck off. In this view of the matter this appeal must succeed as the tentative rent order had been obtained on a wrong statement that rent had been paid upto April, 1979 only when in fact rent had been paid upto July, 1979. The tentative rent order dated 5-8-1979 is also liable to be set aside.
3. F. R. A. No, 169 of 1982 is allowed and the impugned order dated 1-2-1982 of the Rent Controller striking off the defence of the appellant is set aside. The tentative rent order dated 5-8-1979 is also set aside. The case is remanded to the learned Rent Controller for decision in accordance with law.
Now that the 1979 Rent Ordinance is in force, if the respondent wants she can make a fresh application under section 16(1) of the Rent Ordinance for passing a fresh rent order. It is directed that the learned Rent Controller will dispose of the case finally within six months of the receipt of the record by him.
' There will be no order as to costs.