' This is an appeal against the Judgment/Order dated 5-9-1981 passed by the learned Xth Senior Civil Judge and Rent Controller, Karachi, in Rent Case No. 2183 of 1980 whereby the appellant was directed to hand over the possession of the premises bearing No. 41r Bahadurabad, Karachi to the respondent within two months.
2. The facts leading to this appeal briefly stated, are that the appellant is a tenant of the respondent in respect of the aforesaid premises. The respondent filed an application for ejectment under section 15 of the Sind Rented Premises Ordinance, 1979 for ejectment of the appellant on the ground of default in payment of rent for the period from 1-1-1980 to 31-3-1980 at the rate of Rs.1,300 The appellant filed a written statement that the monthly rate of rent was Rs.650 only, and that the rent stood paid upto June, 1980. The respondent, on 14-10-1980, filed an application under section 16(1) of the said Ordinance before the learned Rent Controller praying for a direction to the appellant to deposit the arrears of rent at the rate of Rs.1,300 with effect from January, 1980 to September, 1980. Notice of this application was served on the appellant who filed his objections on 22-12-1980. The learned Rent Controller, after perusal of the said objections and hearing the parties and taking into consideration the Certificate issued by Mr. S. Hassan Mehdi Naqvi Income- tax Officer, Salary Circle (East Zone), Karachi produced by the respondent's counsel held that, at that stage, the said Certificate was sufficient to determine the rate of rent tentatively. He, therefore, by his order dated 18-1-1981 directed the appellant to deposit the arrears of rent with effect from January, 1980 to December, 1980 i.e. for 12 months amounting to Rs.15,600 within two months of the said order. The appellant was also directed to deposit future monthly rent commencing from January, 1981 on or before 10th of each succeeding month at the same rate of rent of Rs.1,300 per month till final disposal of the case. It appears the Affidavit in evidence of the respondent had already been filed and that is why the learned Rent Controller put off the case to 30-3-1981 for cross-examination of the respondent in the main case.
3. The appellant, however, on or about 4-3-1981 filed an application for recalling the order dated 18- 1-1981. On the other hand, the respondent on 30-3-1981 filed an application under section 16(2) of the said Ordinance, for striking off the defence of the appellant, as the appellant had failed to deposit the arrears as well as future monthly rent. Notices of both the applications were accordingly served on the other side. Objections were filed and then both the applications. One filed by the appellant for recalling of the order dated 18-1-1981 and the other filed by the respondent for striking off the defence were heard together and disposed of by one order dated 5-9-1981, impugned in this appeal.
4. Mr. Munirur Rahman, learned counsel for the appellant in support of this appeal has raised two- fold contentions, namely:-
(i) The impugned order has been passed without enquiry and as such is illegal.
(ii) The amount of Rs.15,600 was sizable and thus could not be paid within time. The default, therefore, was liable to be condoned.
5. In support of his first contention, learned counsel for the appellant relied on the case reported as Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum 1984 CLC 68. On the other hand learned counsel, for the respondent placed his reliance on a Division Bench decision of this Court reported as Nasim Ahmad v. Senior Civil Judge & Rent Controller and another PLD 1982 Kar.
210.
6. The facts of the case cited by the learned counsel for the appellant are clearly distinguishable inasmuch as it was a case wherein the plea of the tenant as to the quantum of rent and period was not at all considered by the learned Rent Controller who proceeded simply to pass an order for the deposit of rent as stated by the landlord.
7. In the case cited by the learned counsel for the respondent it was held that:- "Section 16 provided for a summary enquiry as the Controller deems fit to make. Sufficient discretion has been vested in the Controller without specifying the procedures for determining the rent by summary enquiry. The nature of the summary enquiry differs from case to case and depends entirely on the facts and circumstances of each case. It is, therefore, left to the discretion of the Controller to determine what type of summary enquiry he would make. In determining procedure for summary enquiry full regard should be had to the principles of natural justice which should not in any circumstance be violated by the Controller."
8. In the present case the learned Controller has passed the order under section 16(1) of the Ordinance on an enquiry after considering the objections of the appellant and hearing his counsel and placing reliance on the material produced before him. It cannot, therefore, be said that the learned Rent Controller passed the order without any enquiry. In any case, the enquiry as contemplated by section 16(1) of the Ordinance is of a summary nature and the determination of the rent as well as the period is only tentative and not the final which was challengeable at the time to regular hearing of the ejectment case.
9. As regards the second contention, it has equally no force. No such plea was taken before the learned Rent Controller either in the written objections or during the arguments. In fact, the learned Rent Controller in the impugned order while considering the application under section 16(2) of the Ordinance as well as the application moved by the appellant for recalling the rent order dated 18- 1-1981 has clearly observed as follows:- "He has not pleaded that he was prevented by any superior force to not comply with the rent order and due to unavoidable circumstances, he was not in a position to deposit the amount DUE TO SHORTAGE OF FUNDS."
10. The appellant, for the first time, has taken this plea. In his appeal before me but has failed to place any material on record to show his financial stingency. Mr. Abdul Aziz, however, submitted that the appellant is a contractor and a man of affluent means.
11. It is now well settled that the tenant's defence is liable to be struck off if he fails to comply with the direction contained in the tentative order for deposit of rent for which he has given no explanation. Reliance may be placed on a decision of the Supreme Court reported as Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1.
12. I find no merit in the appeal which is dismissed with costs. I, however, grant one month's time to the appellant to vacate the premises and put the respondent in its vacant and peaceful possession, subject to depositing rent in the Court.