ALI HUSSAIN QAZILBASH, J: --This appeal by leave is directed against the judgment of a learned Single Judge of the Sindh High Court, dated 23-2-1987.
2. The brief facts as set out by the appellant are that he is a tenant of a portion of house over plot bearing No.187-A/3, Bihar Colony, Karachi, at the rate of Rs.90 per month since 1973, the same having been taken on rent from the husband of the respondent. The husband of the respondent in 1978 raised a dispute over rent and having refused to accept rent from September, 1978, the appellant remitted the same through money order which was also refused. The appellant then filed a Miscellaneous Rent Case No.5034 of 1978 in the Court of the Rent Controller, Karachi, and started depositing rents at the rate of Rs.90 per month from September, 1978.
3. After about four years, the present petition for the ejectment of the appellant was filed by the respondent claiming to be the owner of the premises. The ejectment of the appellant was sought on the ground of default in the payment of rent from September, 1978 and also for failure to pay the electricity charges. It was also alleged that the appellant had violated the terms of tenancy in converting the residential premises into commercial one and also that she required the suit house for her own occupation. This application was resisted by the appellant, wherein the execution of the rent deed and other allegations were refuted. The appellant also took the stand that he had been depositing the rent of the suit house in the Court of the Rent Controller and that the electricity charges at Rs.15.00 per month were collected by the landlord which were much higher to the units consumed.
4. In November, 1983 the respondent submitted an application under section 16 of the Sindh Rented Premises Ordinance, 1979, praying that the appellant be directed to deposit arrears of rent from August, 1978 to November, 1983 for 64 months at the rate of Rs.90 per month amounting to Rs.5,760 and arrears of electricity charges at Rs.15 per month from August 1978 for 60 months amounting to Rs.900, the entire rent due being equivalent to Rs.6,660, and that the appellant may also be directed to pay monthly rent regularly on or before the 10th of each month. This application was replied to by the appellant reiterating the stand taken by him in his written statement. In reply to the application on 14-2-1984 the appellant further stated that the electricity charges were paid to the applicant/respondent by him directly upto October, 1983 as the said charges used to he paid separately and thereafter to harass the appellant and to bring pressure on him to get the premises vacated from him forcibly the applicant/respondent got the electricity connection disconnected of the disputed property and since then the appellant has been deprived from this lawful amenity.
5. On the receipt of the written statement and replication dated 14-2-1984, the Rent Controller, vide his order dated 17-3-1984, though took note that the appellant had been depositing rent at the rate of Rs. 90 per month of the suit house through Miscellaneous Rent Case No. 5034 of 1978 regularly but held that no evidence was produced by the appellant which could show that he had been paying Rs. 15 per month towards the electricity charges to the applicant/respondent. He, therefore, directed the appellant to deposit the arrears of rent from the month of May 1979 to the month of February 1984 being rent of 58 months amounting to Rs. 5,200.00 plus electricity charges from May 1979 amounting to Rs. 765, total amount being Rs. 5,985, on or before the 30th of April 1984. He further directed the appellant to deposit rent for the month of March 1984 on or before the 10th of April 1984 and continue depositing future monthly rent on or before the 10th of each calendar month. In the concluding portion of his order it was held that as the rent in the miscellaneous rent case was being deposited in the name of the person other than the respondent hence such amount could not be adjusted in this case.
5-A. In between 17-3-1984 and 21-2-1985, certain applications were moved by the respondent which were replied to by the appellant when on 21-2-1985 the Rent Controller passed the order striking off the defence of the appellant in the following terms: "From the case file it appears that on 17-7-1984 order under section 16(1) of the Sindh Rented Premises Ordinance 1979 was passed and the opponent was directed to deposit arrears of rent amounting to Rs. 5,985 on or before 30-4-1984 and he was further directed to deposit the future rent on or before 10th of each calendar month. Then this application has been moved for striking off the defence of the opponent on the ground that the opponent has filed objections to this application contents of which show that the fact of not depositing the arrears of rent in the present case has not been denied by the opponent but it is contended that the opponent has deposited the rent in Misc. Rent Case No: 5034/78 and are lying with `the Nazir of this Court 'and it appears from such objections that it is prayed that Court may allow the applicant to withdraw amount from the Misc. Rent Case.
Such contention of the opponent clearly shows that he has not deposited the arrears of rent as per order of this Court under section 16(1) of the Sindh Rented Premises Ordinance. The order of this Court dated 17-7-84 is also obvious on the point that the rent deposited in Misc. Rent Case No. 5034/78 cannot be adjusted in the present case as same is being deposited in the name of person other than the present landlady.
Under these circumstances it appears that the opponent has failed to comply with the orders of this Court dated 17-7-84 hence this Court has no option but to strike off the defence of the opponent. Accordingly this application is allowed and the defence of the opponent is struck off and he is directed to hand over the vacant possession of the house to the . Applicant within 30 days from this order. Announced in open Court."
The appeal filed in the High Court by the appellant was also dismissed on 23-2--1987.
6. We have heard the learned counsel for the parties and have gone through the record. On 17-3- 1984 the Rent Controller exercising powers under section 16(1) of the Sindh Rented Premises Ordinance, 1979, ordered the appellant to deposit Rs. 5,200 towards rent of the suit property from May 1979 to February 1984 and Rs. 765 as electricity charges from may 1979 to July 1983, totalling Rs.
5,985, on or before 30-4-1984. It was further ordered that as the rent was being deposited in the Miscellaneous Rent Case in the name of the person other than the respondent, hence the same could not be adjusted in this case.
7. The perusal of the record, however, shows that prior to the order of deposit of rent on 17-3-1984, the appellant had in fact deposited a sum of Rs.6,300 as rent towards the property as per miscellaneous rent case No. 5034/1978. This amount has fully covered .The total amount ordered to be deposited by the Rent Controller through order dated 17-3-1984 including the electricity charges. As a matter of fact it was in excess of the total amount, viz., Rs.5,985. The appellant had been repeatedly approaching the Rent Controller before the target date, i.e, 30-4-1984, either to ask the respondent to withdraw the said amount or he be permitted to withdraw the same from Miscellaneous Rent Case No. 5034/78 and deposit it in this case but his request was not acceded to and his defence was struck off. As the case stands, the order of striking off the defence passed against the appellant is an unjust order. It seems that the Rent Controller did not apply his mind to the matter. He was swa yed by the stand taken by the respondent. Since the appellant had been making earnest efforts to get the amount deposited in Miscellaneous Rent Case No. 5034/78 transferred to the present case before the dead line, i.e., 30-4-1984, it was the duty of the Rent Controller to have assisted the appellant for doing the needful. The fault, therefore, squarely lay with the Rent Controller and not the appellant, and therefore, it cannot be said that the appellant has failed to comply with the order dated 17-3-1984. The Rent Controller was again wrong in holding that the amount deposited in Miscellaneous Rent Case No. 5034/78 was in the name of the person other thaw the respondent. Who was the other person? Was he a stranger to the respondent? He was her husband. Furthermore the electricity bills which have been issued by the Karachi Electric Supply Company and are available on the record are in the name of the husband of the respondent. So in the absence of any positive evidence, the possibility that it was the husband of the respondent who for all practical purposes was the landlord cannot be ruled out.
9. The view, therefore, that we take in the matter is that the order striking off the defence passed by the Rent Controller and that of the learned Judge of the High Court dismissing the appeal are illegal and are hereby set aside. The appeal is allowed but with no order as to costs.