This appeal is directed against the order dated 27-10-1986 whereby applications of the appellant/landlady for striking off the defence of the respondents were dismissed by the learned Rent Controller. The order-sheet shows that the respondents had been avoiding service and vide order dated 8-4--1987 learned Chief Justice had directed that the respondents should be served by publication as well as by registered post and also through their Advocate. Subsequently, on 8- 11-1987 learned Chief Justice observed that the service of the respondents had already been held good by the Deputy Registrar and directed that the appeal be fixed for regular hearing. The respondents have constantly remained absent and as such the appeal was heard ex parte.
2. The brief history of this old case is that the appellants had filed an ejectment application under section 15 of the Ordinance on 11-8-1982 and had sought the eviction of the respondents on the ground of default in the payment of rent and for personal requirement. The written statement was filed on 4-12-1982. Subsequently, an application under section 16(1) of the Ordinance was moved by the appellant/landlady on 21-4-1983 for the deposit of the arrears of rent in the Court and for the deposit of current monthly rent. On this application, tentative order for the deposit of the rent was passed on 2-8-1983. This order was not complied with by the respondents and the appellants moved an application on 4-10-1983 before the learned Rent Controller for striking off the defence of the respondents. This application was, however, dismissed by the learned Rent Controller vide order dated 22-11-1983. Subsequently, the appellant/landlady moved an application on 3-12-1983 and another on 12-9-1984 for setting aside the order dated 22-11-1983 and for striking off the defence of the respondents. Eventually vide order dated 20-11-1984 the learned Rent Controller struck off the defence of the respondents. The respondents came in appeal before the High Court and filed Appeal No. 28/85 for setting aside the order dated 20-11-1984. This appeal was accepted and the case was remanded to learned Rent Controller vide order dated 28-5-1985. Para. 10 of this remand order dated 28-5-1985 specifically directed the respondents/tenants to trace out the amounts allegedly deposited by them in Rent Case No. 764/69 and produce a certificate from the Nazir in respect of these payments and file the same in this Court (i.e. The High Court) and to supply a copy to Mr. Hasnain, learned counsel for the landlady. The respondents/tenants did not comply with the above directions. When after the remand the case was pending before the learned Rent Controller, the appellant/landlady again moved an application under section 16(2) of the Ordinance stating that the tentative order for deposit of rent dated 2-8-1983 had still not been complied with by the tenants. On this application an order was passed on 31-5-1986 by the learned Rent Controller whereby the learned Rent Controller directed the counsel for the respondents/tenants to file certified copies of all the deposits made by the deceased tenant and obtain a report or certificate from the Nazir to that effect and submit them in Court "on the next date of hearing". This next date was 7th July, 1986 when the learned Rent Controller was on leave and when the file came before him on 10-7-1986, the R & P of the case had been called by the High Court and as such this application for extension of time could not be disposed of. Thereafter, the appellants moved an application on 20-8-1986 under section 16(2) of the Ordinance praying that, in view of the facts disclosed by earlier applications, defence of the respondents be struck off.
Report of the Ledger Clerk, Civil Courts, Karachi South, was called. According to his report (dated 13- 9-1986), no amount was deposited in the rent case. It was specifically stated that neither the arrears were deposited nor any monthly rent was deposited. This application was dismissed by the learned Rent Controller vide impugned order dated 27-10-1986. Learned Rent Controller observed in this order that the respondent had admittedly not deposited any rent in the ejectment case in which the tentative order of deposit of rent was passed on 2-8-1983. He also observed that this default was also confirmed by the report of the Nazir. However, the learned Rent Controller seems to have not properly appreciated the order of this Court dated 28-5-1985 whereby the case was remanded. The learned Rent Controller appears to be of the view that this Court had held that there was no default on the part of the respondents. On the basis of this erroneous conclusion, the application of the appellant was dismissed by the learned Rent Controller. The learned Rent Controller failed to note that vide para 10 of the remand order dated 28-5-1985. The respondents/tenants were directed to obtain a certificate from the Nazir and produce the same before the High Court but they failed to comply with the direction. Any observation in the remand order dated 28-5-1985 as to the deposit of the rent by the respondents/tenants was only provisional and subject to the report of the Nazir. The respondents have failed to show that they had complied with the order dated 2-8-1983 for the tentative deposit of rent. Even vide impugned order the respondents were directed to deposit the rent in future in the present rent case. They do not appear to have complied with even this direction. In view of these facts I am satisfied that the respondents have not complied with the order of the deposit of the rent and as such their defence is liable to be struck off. At this stage, the question of maintainability of this appeal arose because this appeal is directed against an order whereby landlady's application for striking off the defence of the respondents was dismissed and, apparently, the impugned order did not appear to be a final order but an interlocutory order. In this regard I was referred to 1986 CLC 1587 (A.M. Qureshi v.
Secretary, Government of Sind) wherein it has been held that an order rejecting an application of landlord to strike off the defence of the tenant is not an interim order and appeal against such order is competent under section 21 of the Sind Rented Premises Ordinance, 1979. Relying on this authority I would hold that this appeal is maintainable and on the basis of the facts as discussed above, I accept this appeal and strike off the defence of the respondents. The respondents are allowed two months' time to vacate the premises.
3. I cannot fail observing that the respondents have avoided service ever since the filing of this appeal on 4-11-1986 and they were served by publication and by registered post. A perusal of the record shows that the respondents were in the know of these proceedings and were avoiding to appear before this Court with the sole intention of prolonging these proceedings. The appellants shall have their costs of this appeal.
M.Z.S./A-641/K.
Eviction ordered.