' This is a first rent appeal filed by the appellant/tenant challenging the order, dated 4th November, 1982 passed by the learned Rent Controller, Karachi, striking off the defence of the appellant and ordering the ejectment. Rent Case No, 885 of 1981 was filed by the respondent/landlady on 21st February, 1981 on the ground of default and nuisance. On 12th January, 1982 rent order was passed directing the appellant to deposit rent at the rate of Rs, 450 per month plus Rs, 100 per month on account of gas and electricity charges. In the rent order, as regards the arrears, it is mentioned by the learned Rent Controller as follows : "As the applicant has claimed the arrears of rent at the rate of Rs, 450 per month, hence at this stage I direct the opponent to deposit the arrears of rent from August, 1979 to 3lst December, 1981 at the rate of Rs, 450 per month plus electric and gas charges at the rate of Rs, 100 per month for the same period less the amount already deposited by him if any in Miscellaneous Rent Application No, 284/1981 on or before 28th February, 1982."
2. In this case the Rent Order dated 12th January, 1982 was passed at a late stage. The entire evidence on behalf of the respondent/ landlady had been concluded and the affidavit-in- evidence on behalf of the appellant had been filed and only the cross-examination of the appellant had to take place when the rent order, dated 12th January, 1982 was passed. It is the case of the appellant in the written statement as well as in their pleadings including his affidavit in evidence that rent was not due w.e.f, August, 1979 but that rent had been paid by the appellant to the respondent/landlady from August, 1979 upto June, 1980. It has been contended by learned counsel for the appellant that the rent order, dated 12th January, 1982 has not taken into consideration the plea of the appellant that he had paid the rent from August, 1979 to June, 1980 and without considering the plea raised on behalf of the appellant in this regard the direction of the learned Rent Controller to deposit arrears of this period is illegal and as a result defence of the appellant could not be struck off on the basis of an illegal order. On the other hand, it has been contended by Mr. A. K. M. Idrees, learned counsel for the respondent that rent order, dated 12th January, 1982 was more or less a consent order and although the plea had been rasied by the appellant that rent had been paid from August, 1979 to June, 1980 by the appellant to the respondent directly, this plea was not pressed before the learned Rent Controller at the time of arguments on the question of passing the rent order.
3. The submission of learned counsel for the appellant that in the rent order, dated 12th January, 1982 there is no reference at all to plea of the appellant that he had paid rent from August, 1979 to June, 1980, is correct. I have gone through the rent order, dated 12th January, 1982 and there is no mention at all in this order about this plea. At the time the rent order is passed there are generally two questions that are to be taken into consideration and these are the quantum of rent and the period of arrears. If there is no dispute on either of these questions, generally a consent order is passed but if there is any dispute about either or both of these questions, the learned Rent Controller is required to hold a summary inquiry and then pass a rent order. While holding the summary inquiry, generally the Rent Controller takes into consideration the objections, affidavits and other documents, filed by the parties. Generally an order under section 16 (1) is passed when evidence is yet to be recorded and as such there is no question of taking the evidence into consideration. However, as observed earlier, in the instant case, except for the cross-examination of the appellant, the entire evidence had been recorded. In the circumstances the learned Rent Controller was required to consider not only the objections but also the evidence on record before passing the rent order. He was also required to refer to the pleas raised by the tenant in his objections to the application under section 16 (1) filed by the respondent. In the rent order, dated 12th January, 1982 I do not find any reference to the plea about arrears of rent from August, 1979 to June, 1980 raised on behalf of the appellant. 1 also do not End any observation in the rent order that the evidence at all then recorded by the learned Rent Controller had been taken into consideration by him after he had passed the rent order, dated 12th January, 1982. I do not agree with the learned counsel for the respondent that the rent order, dated 12th January, 1982 is a consent order. In view of the objections filed, the rent order dated 12th January, 1982 is not a consent order when the order itself does not show that it is a consent order. From the order dated 12th January, 1982 it is also not apparent that the plea raised specifically by the appellant regarding arrears of rent had not been pressed. The rent order shows that the plea about arrears raised on behalf of the appellant was not taken into consideration, He has only mentioned in the rent order that the respondent had claimed the arrears of rent w. e. f. August, 1979. The learned Rent Controller was required to consider the plea raised on behalf of the appellant regarding C the payment of rent from August, 1979 upto June, 1980 and an order should have been passed about the arrears after taking into consideration the evidence and other documents on record on this point.
In my view a legal rent order had not been passed by the learned' Rent Controller. In the circumstances, the defence of the appellant', could not be struck off for violation of the order, dated 12th January,' 1982.
4. F. R. A. No, 1167/1982 is allowed and the rent order, dated 4th November, 1982 passed by the Rent Controller is set aside. There will be no order as to costs. The R & P may be sent back to the learned Rent Controller for deciding the case on merits in accordance with law.