ABDUL RAHIM KAZI, J.-This appeal has been filed challenging the orders passed by the IV Senior Civil Judge/Rent Controller, Karachi (East) in Rent Case No.725/88 whereby he ordered to strike off the defence of the present appellants and directed them to hand over the vacant possession to the respondent/landlord within a period of 60 days.
2. Briefly the facts of the case are that the present respondent had filed the Rent Case No.725 of 1988 against the present appellants on the ground of default. During the pendency of the proceedings, an application was moved under section 16(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) on 1-10-1988. The notice of this application was served on the present/appellant and a joint statement was made by the parties in the Court of Rent Controller whereby the present appellants undertook to deposit all the arrears of rent from 1- 8-1985 at the rate of Rs.1100/- per month before 10-7-1989, less the amount of rent already deposited in Misc. Rent Case No.1840/85. The tenant also undertook to deposit the current monthly rent from 1-5-1989 on or before 10-6-1989 and so on for each succeeding month in the case. On such joint statement of the parties, the learned Rent Controller was pleased to pass an order on 13- 5-1989 whereby an order was passed on such terms. In consequence of the said order, the present appellants/tenants started depositing the rent in the Rent Case No.725 of 1988 till 8-7-1990 where- after they deposited the monthly rent in the said case on 5-3-1991. During this period they had also not deposited the rent for the months of May and August, 1990 to February, 1991. The present respondent then moved an application under section 16(2) of the Ordinance;. Notice of this application was also served on the present appellants and objections were filed to the effect that due to mix-up in rent receipts, the rent for the above mentioned months was deposited in Misc.
Rent Case No 11840/85; and that this was a bona-fide mistake. It was denied that any default has been committed by the appellants. The Rent Controller not accepting this plea passed the impugned order. Hence this appeal.
3. I have heard Mr. A.F.M. Mokarrim, Advocate assisted by Mr. Mohammed Sadiq, Advocate for the appellants and Mr. Mohammed Anis, learned counsel for the respondent.
Mr. A.F.M. Mokarrim, Advocate has contended that the Nazir's report will show that the rent has been paid for every month and within due time of course some times in Misc. Rent Case No.725/88 and some times in Misc. Rent Case No.1840/85. He has further submitted that, therefore, it can at the most be treated as a technical default. He has further submitted that the rule of interpretation in applying penal clauses is that the interpretation favourable to the incumbent should be taken into consideration where the question of imposing of penalties arises. He has placed reliance on the following cases;
(i) Nur Mohammed vs. Mehdi (PLD 1991 S.C. 711)
(ii) Najamuddin vs. Mst. Anis Fatima (1991SCMR 64)
(iii) Mehboob Jewellers vs. Nur Ahmed (1989 SCM R 1327)
(iv) Major (Retd) A.S.K. Samad vs. It. Col. (Reted. ) A. Hussain (1987 SCM R 1013).
(v) Shahid Hussain vs. Iqbal & 11 others (1986 SCM R 1069)
4. Mr. Mohammed Anis, learned counsel for the respondent repelling the above submissions of the learned counsel for the appellants has submitted that this is hot a technical default but is a clear defiance of the order of the Court. He has further submitted that in this case the order on the application under section 16(1) of the Ordinance was passed by consent and thereafter the tenant has deposited the rent in the said case and, therefore, his deviation from this practice would amount to defiance and cannot be termed as technical default. He has placed reliance on the following cases; -
(i) Mahmood Bashir vs. Mst. Mubina Begum (1988 S.C.M.R. 427)
(ii) Kabiruddin Lalani vs. Zafar Ishaq Ansari (1987 CLC. 1984).
5. 1 have given anxious consideration to the submissions of the learned counsel and have read over the case law cited by them. I have also perused the R & P of the rent case before the learned Rent Controller. It is an admitted position that prior to filing of the present ejectment proceedings, the present appellants had filed the case being Misc. Rent Case No.1840/85 before the Rent Controller wherein they had been depositing the rent. It is also an admitted position that the order "on the application under section 16(1) of the Ordinance was made by consent; and that in consequence of that order, the tenant had been depositing the rent before the Rent Controller in the Rent Case No.725/88 continuously from the date of order (13-5-1989) till 8-7-1990 and thereafter he again started depositing the rent in Misc. Rent Case No. 1840/85. The Nazir's report also shows that the rent for the month of May, 1990 was also deposited in the Misc.
Rent Case No.1840/85 and not the current case. In these circumstances, it appears, in the very face of the record, that it was a deliberate act of the tenant whereby he started depositing the rent in the previous case filed by him without any further permission from the Rent Controller. I have read the case law cited by the learned counsel for the appellants. In all the five cases which he has referred to, the question involved was that inspite of the orders passed by the Rent Controller the tenant had continued to deposit the rent in the previous proceedings or in the wrong name but no- where in these cases was a case similar to the one in hand. It may be observed that every case has its own peculiar features and attending circumstances. In the present case no cogent explanation has been submitted as to why the tenant, after having consented to deposit the rent in current case and having done so for quite sometime, again shifted back to the proceedings filed by him with the prayer to deposit the rent in Court four years prior to the orders passed by the Rent Controller in the current case. In fact those previous proceedings would have been deemed to have come to an end for all purposes when the tenant consented to deposit the rent in the present case and also complied with the same. In the case of Mehmood Bashir vs Mst. Mubina Begum (1988 S.C.M.R. 427) the Hon'ble Supreme Court was pleased to observe that the conduct of the tenants depositing the rent in the name of a wrong person, inspite of the orders of the Rent Controller would be contumacious insistence on his part. In this case their Lordships have been pleased to observe as under; "Proceedings 5611 of 1979 on 7-12-1981 and then again during the same on 10-1-1982. To say the least the appellant had continued to act under his own will and incomplete to act under his own will and incomplete disregard and defiance of the order of the Rent Controller dated 5-12-1981.
Even if there was some initial justification for deposit of rent in the name of Zafar who is the husband of the present respondent still that justification was completely gone after the order was passed by the Rent Controller on 5-12-1981. The result is that it was not a mere technical compliance with the order of the Rent Controller dated 5- 12-1981 but a contumacious insistence on the part of the appellant that he will continue to do as he like inspite of the order of the Rent Controller.
No exception can be taken with the view that has prevailed with the learned Rent Controller as well as the learned Judge in the High Court that inspite of the appellant having been specifically directed to deposit the arrears of rent and the future rent, he failed to comply with order, and thus entailed the liability of eviction from the demised premises under sub-section (2) of section I6 of the Ordinance."
Also in the case of Kabimddin Lalani vs Zafar Ishaq Ansari (1987 CLC 1984) a learned single Judge of this Court has observed that default in compliance of orders passed by the Rent Controller could not be condoned on the ground of illiteracy where the party was represented by a counsel. It was further observed in this case by his Lordship as under; "Evidence of tenant-Tentative rent order Non-compliance of-Effect- To comply with directions given by Rent Controller in tentative rent order in respect of deposit of rent being incumbent on tenant, tenant who had been depositing rent in Misc. Application against such directions, held had committed default in complying with tentative rent order and his defence was rightly struck off by Rent Controller due to such non-compliance-Explanation of tenant for such non compliance that he was illiterate person, could not be accepted as he was all along represented by Advocate."
In the present case it may also be observed that the objections filed by the tenant to the application under section 16(2) of the Ordinance are not supported by any affidavit nor the same bear the signatures of the tenant himself. The said objections are signed by his counsel. Of course a counsel, under a Vakalatnama, has the authority to sign such objections but in this case a plea of fact has been taken which ought to have been supported by some evidence. No evidence to corroborate the plea taken by the tenant has been placed on record.
6. In view of the above discussions, I find no merits in the present appeal, which is accordingly dismissed. However, there will be no order as to costs. The appellants will hand over the vacant possession to the respondent within 60 (sixty) days from the date of this order.