' This appeal is directed against the order, dated 21-9-1989, passed by the learned VIth Senior Civil Judge and Rent Controller, Karachi-South, in Rent Case No,640/87, under Section 16 (2) of the Sindh Rented Premises Ordinance, 1979 (for short "the Ordinance") thereby striking off the defence of the appellant.
2. On 4-4-1987, the respondent filed an application under section 15 of the Ordinance for eviction of the appellant from the residential premises consisting of three rooms, kitchen, W.C., and bath, situated on the ground floor of the Building No, 137/1, Bihar Colony, Karachi (hereinafter called the "demised house"), which was let out to him with effect from Ist August, 1981, vide Agreement dated 29-7-1981 on a monthly rent of Rs,200, stating, inter ilia, that he (the appellant) is already in possession/occupation of a separate eastern portion of the said building consisting of two rooms with other necessary appurtenances through an agreement, dated 19-6-1963, that the appellant had violated the conditions of the said Agreement, that he had committed such acts as stated in the application, which were likely to impair the material value and utility of the demised house, that he was in arrears of rent from December, 1986 onwards and the electric charges from August, 1986 till filing of Application. He had failed to pay the same despite legal notice, dated 12-2-1987.
3. The appellant filed written statement admitting the relationship of landlord and tenant. He, however, pleaded that the respondent had given a house comprising of two rooms, with necessary appurtenances, on monthly rent of Rs,90. In June, 1981, he had given another one room in addition to the two rooms' accommodation already in possession of the appellant on a monthly rent of Rs,200 under an Agreement. The appellant's case thus was that the respondent had let out to him only one unit tenement and not two separate units comprising of five rooms. The other allegations, as made in the application, were also denied.
4. The respondent presented an application under section 16 (1) of the Ordinance. The learned Rent Controller vide his order, dated 1-12-1987 directed the appellant to deposit rent at the rate of Rs,200 per month from December, 1986 to November, 1987 totalling Rs,2,400 and the current and future rent at the same rate by 10th of the next following month for which it was due. The respondent thereafter made an application under section 16 (2) of the Ordinance for striking off the defence of the appellant as he had failed to comply with the aforesaid order of the Rent Controller. After calling for the report from the Nazir of the Court, the learned Rent Controller, vide his impugned order has struck off the appellant's defence with a direction to him to vacate the demised house and hand over its possession to the respondent within thirty days.
5. Aggrieved by the above order, the appellant-tenant has filed this appeal.
6. I have heard Mr. Muhammad Muzaffarul Haq, Advocate, on behalf of the appellant and Mr. A.Z.
Shams, Advocate, on behalf of the respondent. I have also perused the relevant record.
7. It was contended by Mr. Mohammad Muzaffarul Haq that the order passed by the learned Rent Controller under Section 16 (1) of the Ordinance was arbitrary and illegal inasmuch as he had thereby determined the entire dispute between the parties. The learned Rent Controller, according to him, had failed to apply judicial mind to the facts of the case. He reiterated the same contentions before me, which were made before the learned Rent Controller, that is, there was only one tenement in possession of the appellant vide agreement of tenancy, dated 10-7-1981 on a monthly rent of Rs,200 and hence the filing of the two separate ejectment applications in respect of two alleged separate tenements was mala fide, improper, illegal and without justification. The counsel emphasised that the learned Rent Controller should have allowed the parties to lead evidence on this point first before passing the order under section 16 (1) of the Ordinance, in both the cases.
8. It was, on the other hand; submitted by Mr. A.Z. Shams that the appellant is as a matter of fact, the tenant of the respondent in respect of two different tenements, one consisting of two rooms and the other consisting of three rooms with necessary attachments. Both the tenements, according to him, were out to the appellant under separate written agreements. He, therefore, supported the impugned order and prayed for the dismissal of the appeal.
9. I have given my earnest consideration to the submissions made at the Bar.
10. Along with his ejectment application, the respondent had filed a copy of the tenancy agreement, dated 29-7-1981, executed between him and the above-named appellant in respect of the three rooms' tenement on a monthly rent of Rs,200 only. The appellant in his written statement had admitted the relationship of landlord and tenant. The defence taken by him was that the demised house is in fact the only tenement in his occupation as per agreement, dated 29-7-1981. I have perused the said agreement and I find that there is no mention in it that the appellant was already in occupation of the tenement consisting of two rooms and that only one room was further let out to him, thereby enhancing the rent from Rs,90 or Rs, 150 to Rs, 200 per month. There is, on the contrary, an agreement admittedly executed between the parties on 19-6-1973 which is appended with the application for eviction, registered as Rent Case No, 639/87 out of which F.RA. No,620/89 has arisen, which has been decided today by a separate order passed thereon.
11. Under the aforesaid facts and circumstances of the case the learned Rent Controller, in my opinion, acted well within his jurisdiction in allowing the application of the respondent made under section 16 (1) of the Ordinance thereby ordering the appellant to tenatively deposit the arrears of rent from December, 1986 to November, 1987 at the rate of Rs,200 per month, totalling Rs,2,400, within the period of one month from the date of order i,e, 15-12-1987 and also to deposit the current and future rent at the same rate before the 10th of each calendar month till the disposal of the case. The appellant admittedly, failed to comply with the aforesaid order and, consequently, the learned Rent Controller, on the application of the respondent, was justified in passing an order under section 16 (2) of the Ordinance striking off the defence of the appellant. The plea taken by the respondent that there was only one tenement in his possession obviously pertains to his defence and it could be adjudicated upon only if the appellant would have complied with the order passed by the learned Rent Controller under section 16 (1) of the Ordinance. Having failed to do so, the appellant legally rendered his defence liable to be struck off. Subsection (2) of section 16 of the Ordinance in specific terms provides mandatorily that where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period, as may be specified by the Rent Controller in his order made in that behalf.
12. For the foregoing reasons, the appeal is held to be devoid of force and it is dismissed accordingly. The appellant is, however, allowed thirty days' time to vacate the demised house and hand over its possession to the respondent, failing which he will be liable to be evicted forthwith without notice. The above are the reasons of the short order of date.