1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 is preferred by the appellant (Hussain Trading Company) who is aggrieved by an order dated 25-4-1992 passed by the learned IIIrd Rent Controller West, Karachi in Rent Case No, 105 of 1990 whereby he struck off the defence of the appellant and directed him to hand over the peaceful and vacant possession of a show room constructed on the front portion of the ground floor of the building known as Puri House situated on Plot No,22, 4-West Wharf Road, Karachi-2 to the respondent.
2. ' The facts leading to the filing of this appeal are that, the respondent/landlord had filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979 seeking ejectment of the appellant/tenant on the grounds of default in payment of rent and subletting of premises. This application was contested by the appellant/tenant who filed his written statement denying all the allegations made by the respondent/landlord.
3. ' That on 11-8-1990, the respondent/landlord moved an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 before the Rent Controller, praying that the appellant/tenant may be directed to deposit the arrears of rent and so also the future monthly rent. After hearing both the parties, the learned Rent Controller vide order dated 14-1-1991 directed the appellant/tenant to deposit arrears of rent and monthly rent in the following words:-- "Heard both counsel and have perused the record. Rate of, rent and period of depositing rent has not been disputed by the parties. In such circumstances I direct the opponent to deposit the arrears of rent from February, 1990 to January, 1991 at the rate of Rs,4,200 before this Court on or before next date of hearing. The opponent is also directed to deposit future monthly regular rent from the month of February, 1991 and onwards to this Court on or before 10th of each calendar of month. The contention of the opponent that he is already depositing the rent from February, 1990 before this Court in MRC. 108/1990. After it is so the amount of rent being deposited by the opponent in the above MRC will be adjusted in the present tentative rent order. Put off on 28-1-1991."
4. ' It may be noted that before the passing of the tentative rent order, the appellant/tenant was depositing the rent in MRC No,108/1990. After the tentative rent order was passed, the appellant/tenant did not deposit the rent in the "rent case", but continued to deposit the same in MRC No,108/1990 contrary to the direction contained in the rent order dated 14-1-1991. This being the position, the respondent/landlord moved an application on 22-1-1992 under subsection (2) of section 16 of the Sindh Rented Premises Ordinance, 1979, for striking off the defence of the appellant/tenant on the ground that he has committed wilful default by not depositing the rent in the current rent case in violation of the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979. After hearing the learned counsel for the parties, the learned Rent Controller passed the impugned order dated 25-4-1992 whereby he struck off the defence of the appellant/tenant and directed that the respondent/landlord be put in vacant possession of the premises in question within sixty days of the said order.
5. ' It is in the above circumstances that the appellant/tenant has preferred the present appeal challenging the impugned order dated 25-4-1992 as well as the tentative rent order dated 14-1- 1991.
6. ' In support of this appeal, the learned counsel for the appellant contended that no default as alleged has been committed by the appellant as he has been regularly depositing the rent in MRC 108/1990. He however, admits that instead of depositing the rent in the "current rent case", the appellant had been depositing the rent in a Miscellaneous Rent Case. But he submits this cannot be treated as wilful default as it was only due to misunderstanding/bona fide mistake resulting in a technical default of no consequence, therefore the tentative rent order of 14-1-1991 as well as the impugned order of 25-4-1992 are liable to be set aside.
7. ' I am unable to agree with the above submissions of the learned counsel for the appellant and there are several reasons for it. First of all it is an admitted position that the appellant has not deposited the rent in the account of the "current rent case" in terms of the direction contained in the tentative rent order of 14-1-1991 passed by the learned Rent Controller. On careful scrutiny of the record, it was noticed when the respondent/landlord moved the application under section 16(1) of the Sindh Rented Premises Ordinance, the appellant was shown to be in arrears of rent for the period from February,1990 to May, 1990. The appellant filed his counter-affidavit to the application under section 16(1) and in para. 8 of the affidavit it has been mentioned that the rent for the period from February, 1990 to April, 1990 has been deposited in Miscellaneous Rent Case No, 108/1990 as detailed in his written statement. The perusal of the Nazir's report shows the rent for the period from February, 1990 to April, 1990 was deposited in MRC 108/1990 on 22-5-1990, but the receipt for the same was never produced before the Rent Controller. This receipt has been filed for the first time as Annexure A/5 to this appeal. Therefore the respondent/landlord was quite justified in filing the application under section 16(1) of the Ordinance.
8. ' The perusal of the tentative rent order dated 14-1-1991 clearly indicates that during the hearing of the application under section 16(1) of the Ordinance, the learned counsel for the appellant had brought it to the notice of the learned Rent Controller that the appellant had been depositing the rent in MRC No,108/1990, the learned Rent Controller observed that the amount of rent so deposited in MRC will be adjusted. This virtually means that uptil the date of the passing of the said tentative rent order, that is uptil 14-1-1991, whatever amount of rent was paid by the appellant in MRC was to be adjusted, but all future rent after the tentative order of 14-1-1991 was to be deposited in the "current rent case". The appellant violated the terms of the tentative rent order and did not deposit any rent amount in the account of the "current ejectment case" but instead continued to deposit the rent in MRC I A No,108/1990. Thus the appellant has violated the order of the Rent Controller for a continuous period from 14-1-1990 up to date.
9. ' Apart from the above there is clear Cut default of one month rent by the appellant which can be gathered from the perusal of the record. Under the tentative rent order, the appellant was directed to deposit arrears of rent from February, 1990 uptil January, 1991 as the rate of Rs,4,200 per month by 28-1-1991. This period comes to 12 months for which the total rent amount becomes Rs,50,400.
10. The receipts produced by the appellant indicates that instead of depositing Rs,50,400 as directed, the appellant deposited Rs,46,200 thus there was short payment of Rs,4,200 which is equivalent to one month's rent and the same has not been deposited by the appellant. The amount of rent paid by the appellant uptil 28-1-1991 was further cross checked with the report of the Nazir which indicates that in January, 1991, the appellant deposited the rent on 8-1-1991. If we tabulate the amount deposited from 8-1-1991 and go backwards up to February, 1990, the total amount comes to Rs,46,200. Thus the appellant has committed wilful default of one month's rent which is proved from the record.
11. ' Mr. Muhammad Zubair Qureshi the learned counsel for the respondent/landlord has relied on the case Ghulam Hussain v. Mst. Roshan Bibi reported in 1986 SCM R 1714 in support of his contention that violation of tentative rent order under section 16(1) amounts to wilful default irrespective of the fact if the rent has been deposited in a Miscellaneous Rent Case. In this reported case, 1986 SCM R 1714, the tenant took similar plea of deposit of rent in Miscellaneous Rent Case instead of ejectment case as directed by the Rent Controller, it was held:-- "3. In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had 4 committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application. The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was justified in striking off the defence of the petitioner. It was for him to have complied with the orders by depositing the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sindh Rented Premises Ordinance."
12. ' The point involved in this case was also considered by a learned Single Judge of this Court in the case of Mst. Zulekha Bai v. Muhammad Yakoob reported in 1989 CLC 479. In this reported case, ejectment application was filed by the appellant against the respondent on the grounds of default in payment of rent and subletting of premises. On 23-12-1982, the learned Rent Controller passed the orders under section 16 (1) directing the respondent to deposit arrears of rent and so also the future monthly rent. The counsel for the respondent submitted before the Rent Controller that the respondent has already deposited rent up to February, 1983 in a Miscellaneous Rent Case. The rent amount so deposited in MRC was ordered to be adjusted. Subsequently, the respondent did not deposit the rent in the ejectment case as directed, but he continued to deposit the rent in MRC. In these circumstances the appellant moved an application under section 16 (2) of striking off the defence of the respondent. The learned Rent Controller dismissed this application, but in the appeal, a learned Single Judge of this Court struck off the defence of the respondent and ordered his ejectment for non-compliance of the tentative rent order. The learned Single Judge while disposing of the appeal made the following observations:- " It was a recurring default spread over a period of four years and even a single default preceding the making of application for striking off the defence was sufficient to invoke the provisions of subsection (2) of section 16 of the Sindh Rented Premises Ordinance, 1979...."
13. ' From the above discussion, it is quite evident that the tentative rent order of 14-1-1991 was passed after hearing the counsel for the appellant therefore the direction of the learned Rent Controller contained in the said rent order was in the specific knowledge of the appellant; as such there was no justification for the appellant to continue depositing the rent in a Miscellaneous Rent Case. In doing so, the appellant had acted under his own will and in complete disregard and defiance of the order of the Rent Controller dated 14-1-1991. As such the act of the appellant in depositing the rent in a Miscellaneous Rent case after the passing of the order dated 14-1-991 cannot be due to any misunderstanding or a bona fide mistake as submitted by the learned counsel for the appellant Nor can it be termed to be a mere "technical default" as the appellant has failed to comply with the rent order of 14-1-1991 for a continuous period of more than a year and thus entailed the liability of eviction from the demised premises under subsection (2) of section 16 of the Ordinance. As such., I am of the considered view that the learned Rent Controller has rightly struck off the defence of the appellant under section 16 (2) of the Ordinance for violating the terms of the direction contained in the tentative rent order of 14-1-1991.
14. ' In the light of my above discussion, I find no merits in this appeal, which is accordingly dismissed.
15. However, there will be no order as to costs. The appellant shall hand over the vacant possession of the demised premises to the respondent within sixty days (60 days) from the date of this order.