' QAISER AHMED HAMIDI, J.---This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has arisen in somewhat unusual circumstances.
2. The facts of the case are set out in detail in the order dated 20-5-1991 by which my learned brother Salahuddin Mirza, J. Has admitted this appeal for regular hearing. I cannot do better than quoting the same in extenso to understand the point in issue:-- "This appeal is directed against the order passed under section 16(2) of the Sindh Rented Premises Ordinance, 1979, whereby the defence of the appellant/tenant was struck off for not complying with the order dated 25-2-1990 for tentative deposit of rent. The admitted position is that the appellant commenced depositing rent in M.R.C. No,176/1989 with effect from April 1989 but the first deposit was made in August 1989 and the necessity of depositing the rent in M.R.C. No,176/89 arose when, according to the appellant, the clerk of the previous landlord informed him that the property had been sold to Mr. I.M. Ishaque. As a result, rent was being deposited, not in the name of the respondent Babar Sultan, but in the name of I.M. Ishaque. Subsequently, the respondent brought ejectment application in August 1989 whereafter the Court passed tentative order of rent under section 16(1) of the Ordinance. This order appears to have been reviewed on the basis of an application for review apparently moved by the respondent on 13-5-1990 and thereafter this order was reviewed but it still gives the same date (25-2-1990). In terms of this order, the appellant was directed to deposit the arrears of rent from April 1989 to January 1990 on or before 13th March 1990 and he was also directed to deposit monthly regular rent from February 1990 onward on or before the 10th of the following month and it was further stipulated that rent already deposited in M.R.C.
No,176/89 would stand adjusted in the arrears of rent. As the things stand, the appellant continued to deposit the monthly rent in M.R.C. No,176/89 and did not commence depositing rent in the rent case filed by the respondent whereupon application under section 16(2) of the Ordinance was moved for striking off his defence on 1-11-1990. This application was allowed by the learned Rent Controller vide impugned order dated 17th March 1991 holding that the appellant had clearly violated the 'order of depositing of rent passed under section 16(1) of the Ordinance on 25-2-1990.
The contention of the learned counsel for the appellant is that what the appellant did was due to some misunderstanding of the order and the appellant had no intention of wilfully violating the same. It may also be noted that M.R.C. No,176/89 is in the name of I.M. Ishaque, who happens to be father of the respondent, and not in the name of respondent and it is explained by the learned counsel for the appellant that the appellant, having not received the notice of attornment as provided under section 18 of the Ordinance, had only intimated by the clerk of the previous landlord that the property had been sold to I.M. Ishaque and therefore, he, believing the said clerk, commenced depositing rent in the name of I.M. Ishaque although it later transpired that the property had in fact been purchased, not by I.M. Ishaque; but by his son Babar Sultan. Learned counsel for the respondent who has appeared on preadmission notice contests the maintainability of the appeal and argues that it is a clear case of violation of the order passed under section 16(1) which cannot be countenanced. However, in view of the circumstances which reveal that notice of attornment had not been served on the appellant, although it appears to have been sent by the respondent, and in view of the fact that the rent is being regularly deposited by the appellant and there is no actual default in the depositing of the rent since April 1989 from which date the respondent has alleged default, I consider that the appellant has at least a case which can be admitted for regular hearing. No doubt, as pointed out by the learned counsel for the respondent, the rent from April 1989 onward was for the first time deposited in August 1989 which was beyond the period permissible under the law, but in this regard the question as to whether the service of notice of attornment would be deemed to be proper or not would be material and therefore this aspect cannot be gone into this stage. Besides, an application was moved by respondent/landlord on 13-5-1990 (Annexure 'H' to memo. Of appeal) for review of tentative rent order dated 25-2-1990 and on 1-12-1990 the appellant/tenant had filed objections in respect of review application (Annexure 'I'). It is therefore not clear how, even before the decision of review application, application under section 16(2) was given on 1-11-1990 and entertained. Moreover, copy of reviewed order is Annexure but it is also dated 25-2-1990. And it is worth noting that original rent order Annexure `G' does not fix any date by which arrears of rent were to be deposited nor it says anything about deposit of monthly rent. However, these omissions were rectified in reviewed order Annexure `L' and it is arguable as to whether reviewed order Annexure `L' is a proper order under section 16(1) and can be held to be retrospective in effect and effective from 25-2-1990 when, in fact, it must have been passed after 1-12-1990 when the appellant had filed objections on review application. All these points call for detailed consideration. I would therefore admit this appeal for regular hearing."
3. On 8-9-1992 the appeal was fixed for regular hearing before me when it was noticed that there are two certified copies of order dated 25-2-1990 passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, on record, both different from each other. Since the fate of this appeal hinges on this order, the Member, Inspection Team of this Court was directed to find out the correct position, who after a detailed inquiry submitted his report, which is as under:-- "In F.R.A. No,235/1991 Hon'ble Mr. Justice Qaiser Ahmed Hamidi, was pleased to pass the following order dated 8-9-1992: There are two certified copies of order dated 25-2-1990 on record passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979 by Mr. Ahmed Nawaz Shaikh, III Senior Civil Judge and Rent Controller (West), Karachi, which are different from each other. In order to find out the correct position, the Member, Inspection Team is required to look into the matter personally and call the concerned Seristedar and the members of copying agency to find out where the fault lies. The Member, Inspection Team to give notice to the counsel for respective parties for the date of inquiry.
The appeal is adjourned to a date in office to be fixed within one month.
' The Member, Inspection Team to submit his report during this period."
' In obedience to the above order the R & Ps of Rent Case No,182/89 and F.RA. No,235/91 were called from the Rent Branch of this Hon'ble Court. Notices were also issued to the learned counsel appearing for the parties. The Seristedar, clerks of the Court and members of the copying agency were also summoned and they are present today. In the presence of the learned counsel for the parties statements of copyist Imamdin, Seristedar Iqbal Ghani, Senior Clerk Ghulam Mustafa and Junior Clerk Zafaruddin have been recorded. In his statement Mr. Imamdin copyist has frankly admitted that both certified copies available at pages 95 and 107 respectively of F.RA. No,235/91 were prepared by him and that the certified copy of the order available at page 107 is the true copy of the original available in Rent Case No,182/89. He has stated that due to bona fide mistake some words seem to have escaped from typing in the certified copy of the order available at page 95.
' On comparison of the certified copy of the order available at page 95 with the original I find that the following words are missing from the said certified copy:- `On or before 13th March, 1990. The opponent is also directed to deposit monthly regular rent from February, 1990 and onwards on or before 10th ()teach calendar month. The amount of arrears of rent for the months of April, 1989 to January 1990.'
' Accordingly the correct position is that the certified copy at page 107 of F.RA. No,235/91 is the true copy."
4. The appeal was again fixed before me on 18-11-1992, when it was argued at length by learned counsel for the respective parties.
5. The perusal of report submitted by the Member, Inspection Team of this Court makes it clear that there was only one order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, on 25-2-1990, which for the sake of convenience is reproduced below:-- "This order will dispose of application under section 16(1) of Sindh Rented Premises Ordinance, 1979.
I have heard the arguments of both counsel and have perused the record. Learned counsel for applicant has argued that in this case neither relationship of landlord and tenant is disputed nor rate of rent is disputed.
' Since relationship of landlord and tenant has not been denied by the parties and moreover even rate of rent is not disputed. Under these circumstances I order that opponent should deposit the arrears of rent from April, 1989 to January, 1990 on or before 13th March, 1990. The opponent is also directed to deposit monthly regular rent from February, 1990 and onwards on or before 10th of each calendar month. The, amount of arrears of rent for the months of April, 1989 to January 1990 already deposited by the opponent in M.R.C. No,176/89 will stand adjusted in the present arrears of rent. Put off to 13-3-1990 for affidavit-in-evidence."
6. Admittedly the appellant had not complied with this order and he continued to deposit monthly rent due in. M.R.C. No,176 of 1989, in the name of a wrong person. It may be noted that the appellant was not in any uncertain state of mind to know about the actual owner/landlord of the premises occupied by him as tenant and it is his own case that he had tendered rent to respondent for the months of April and May 1989 through money order dated 27-5-1989, which was, however, refused.
On the face of this admitted position the deposit of rent in the name of wrong person appears to be deliberate and contumacious. The rule laid down by the Supreme Court in the case of Khawaja Ghulam Mustafa v. Mian Waqar Ahmad, reported in PLD 1980 SC 9, was thus fully attracted to this case. This view gets support from the cases of Mahmood Bashir v. Mst. Mobina Begum, reported in 1984 CLC 2620, Mst. Muhammad Nisa v. Anwar Ali, reported in 1989 CLC 157, Ghulam Hussain v. Mst.
Roshan Bibi, reported in 1986 SCM R 1714 and Syed Ikramuddin Bulki v. Mst. Ishrat Warsi, reported in 1992 CLC 366. It may also be added that even if there was some initial justification for deposit of rent in the name of the father of respondent, that justification was completely gone after the order dated 25-2-1990 was passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979.
7. It is always a matter of some regret when one finds oneself to confirm such an order, yet this Court is left with no other option but to chi so. In fact the appellant should thank himself for this situation.
8. In the result the appeal fails and is dismissed with no order as to costs. Two months' time is, however, allowed to appellant to vacate the demised premises.