' This case is a good illustration of the well-known remarks about the distressing feature of our judicial system that, "if there is ample money in your pocket and sufficient time at your disposal, you can delay the disposal of the case till eternity".
2. The respondents are the owners/landlords of the building known as "Farooq Mansion, situated on Plot Nos. 61-62/C, in Central Commercial Area, Tariq Road, P.E.C.H. Society, Karachi, wherein the appellant is a tenant of shop No, 1 on a rent of Rs,800 P.M. On 9-2-1987 the respondents filed an application under section 15(2) of the Sindh Rented Premises Ordinance, 1979, in the Court of Vth Senior Civil Judge and Rent Controller (East) Karachi, seeking the ejectment of the appellant on the following grounds:---
(i) Personal requirement;
(ii) Committing such acts as are likely to impair the material value or utility of the premises;
(iii) Indulging in such activities as are causing nuisance to the neighbours; and
(vi) Default in payment of rent.
3. The appellant denied each and every allegation in his written statement filed on 12-3-1987, pleading therein that the respondents want to re-let this commercial premises in order to earn huge PUGREE.
4. On 19-4-1987 an application was moved under section 16(1) of the Sindh Rented Premises Ordinance, 1979, on behalf of respondents with a prayer that the appellant be directed to deposit arrears of rent and monthly rent due at the aforesaid rate of rent. This application was heard by the learned Rent Controller (Miss Anis Tahir Hussain), who on 31-10-1987 passed the following order:--- "Applicants have moved an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, for directing the opponent to deposit arrears of rent and future monthly rent in the Court.
' Appellants have stated that opponent has not paid rent from August, 1986 to March, 1987 at the rate of Rs,800 per month amounting to Rs,6,400.
' Notice of this application was issued to the opponent but he has not filed objections to this application.
' The opponent has stated in written statement that he has paid rent upto date and no rent is due against him. The applicants have not issued rent receipts for creating ground of ejectment.
' The opponent has not produced any proof that he has paid rent uptodate. The opponent has not disclosed the rate of rent in para 5 of written statement, he has stated that he always paid the rent in the manner settled between the parties.
' In view of above circumstances, I pass tentative rent order, opponent is directed to deposit arrears of rent from August, 1986 to October, 1987 (15 months) rent at the rate of Rs,800 per month amounting to Rs,12,000 within two months from the date of this order.
' The opponent is further directed to deposit further monthly rent in the Court at the rate of Rs,800 per month, from the month of November, 1987 on or before 10th of each calendar month."
5. The appellant, however, failed to comply with this order and consequently on 18-2-1988 an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, was moved on behalf of respondents with a prayer that the defence of the appellant be struck off. This application was contested on behalf of appellant, who admitted the default but pleaded that he was not aware about the order passed by Rent Controller under section 16(1) of the Sindh Rented Premises Ordinance, 1979. The defence of the appellant as unfolded by Mr. N.K. Jatoi, Advocate representing him in his affidavit is as follows:- I, Nur-ud-Din son of late Karim-ud-Din Khan Jatoi, Barrister-at-Law, Advocate, of 165-Muhammadi House, I.I. Chundrigar Road, Karachi, do hereby state on solemn affirmation as under:---
(1) That I appear as the Advocate for the opponent in the above matter. I and my junior colleague Mr. Azhar Ghayoor, Advocate have been attending to it in this Hon'ble Court.
(2) That the applicants had moved an application for arrears of rent to be deposited.
(3) That the order for depositing the arrears and current rent was passed after quite some time and I and my junior colleague had no knowledge that these orders had in fact been passed and as such we could not inform our client. The application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 is misconceived and unjustly moved.
(4) That, thereafter, the Presiding Officer of this Hon'ble Court proceeded on long leave and neither I nor my junior colleague could get information about the order having been passed by this Hon'ble Court and as such we could not inform our client.
(5) That the failure to deposit has neither been wilful nor due to negligence.
(6) That in any case the part of the order pertains to monthly rent. This Hon'ble Court ordered the current rent to be deposited one month in advance. It is respectfully submitted that this is not allowed by law.
(7) That the applicants have no locus standi, only one of the co-owners claims the premises for his personal use, in any case a number of co-owners cannot claim the premises for personal use.
(8) That in the circumstances of the case a fresh order needs to be passed. The case requires to be decided on merits. This would be in the interest of justice.
(9) That in case the opponent, through no fault of his, shall suffer irreparable damage, if no fresh order is passed.
(10) That whatever is stated above is true to the best of my knowledge and belief."
6. The learned Controller heard this application and vide order dated 31-7-1988 struck off the defence of the appellant for the following reasons:--- "Advocate for applicants has moved an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, for striking off defence of the opponent on the ground that opponent has failed to comply with tentative rent order dated 31-10-1987 and he has not deposited arrears of rent and future monthly rent as per order of the Court.
' Notice of this application was served upon the opponent. Advocate for opponent has filed his affidavit stating therein that application is not maintainable and is misconceived. He and his junior Advocate have been attending the Court but they had no knowledge about the rent order, therefore, they could not inform their client.
' It is stated that applicants have no locus standi as only one of the co-owner claims the premises for his personal use and in any case, a number of co-owners cannot claim the premises for personal use. Under these circumstances fresh rent order be passed and case be decided on merits.
' I have heard learned counsel for the parties and perused the record.
' Record shows that in this case rent order was passed on 31-10-1987 directing the opponent to deposit arrears of rent within two months from the date of this order and future monthly rent from November, 1987.
' Report of C.O.C. Shows that no deposit has been made.
' Under these circumstances, I have no alternative except to strike off defence of the opponent.
' As such application is allowed, opponent is directed to vacate and hand over vacant possession of case premises to the applicants within one month from the date of this order."
' This order is the subject-matter of the present appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979.
7. I have heard Mr. N.K. Jatoi, learned counsel for the appellant and Mr. A. Aziz Khan, learned counsel for the respondents. I have also gone through the record of this case carefully.
8. The perusal of the record shows that the order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, directing the appellant to deposit arrears of rent and monthly rent due was passed on 31-10-1987 in presence of counsel for the parties and the order-sheet of this date, the genuineness of which, is not specifically disputed by Mr. N.K. Jatoi, Advocate in his affidavit, is self- explanatory. The order-sheets of the subsequent dates also show that the counsel for the parties were present on all subsequent dates of hearing inclusive of two dates viz., 16-1-1988 and 13-2-1988 when the learned Rent Controller was on leave. There is, therefore, an air of utter unreality about the argument of Mr. N.K. Jatoi, learned counsel for the appellant showing his ignorance in respect of the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979.
9. The order dated 31-10-1987 by which the appellant was directed to deposit arrears of rent and monthly rent due was also assailed by learned counsel for the appellant on the ground that the arrears mentioned therein included the rent of the current month, viz, the month of October, 1987 which had not become due by that time. This argument, in my view, is clearly misconceived. The arrears were to be deposited within a period of two months and consequently the rent of October 1987 was payable by that time. The case of Begum Capt. Mirza Ghulam Sarwar and another v.
District Judge, Jhelum and others, reported in 1987 SCM R 25, also provides an answer to this contention, wherein it was observed:--- ' Mr. A.W. Butt, learned counsel for the petitioners, challenged the orders of. The Courts below on the ground that the order of deposit under section 13(6) of the Ordinance was not valid because the rent of the month of December, 1978, was also included, in the order of deposit passed on 16-10- 1978, whereas the rent up to December could have been included.
' We observe that the rent was to be paid by 10-1-1979 and even otherwise, the monthly rent was Rs,30 and even if the rent of the month of December was not included the petitioners would still be in default."
10. The question of default within the meanings of section 16(2) of the Sindh Rented Premises Ordinance, 1979, was examined by this Court in the case of M/s. Nia2 Sons and others v. S.M. Younus and others reported in 1992 MLD 410 wherein all the available case-law was considered and it was finally held:--- "The trend of these authorities indubitably leads to the following conclusions as settled propositions of laws:---
(i) Once default in deposit of arrears of rent or monthly rent is admitted or proved and the tenant is found to be negligent, the Rent Controller is left with no other option but to strike off his defence.
(ii) The default being purely a relative term just like negligence would embrace every failure by the defendant to perform his obligation unless prevented by superior force over which he has no control."
11. The perusal of the record makes it clear that the order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, was passed on 31-10-1987 in presence of the Advocate for the appellant.
No effort was made by the appellant or his counsel to deposit arrears of rent and monthly rent due even after they came to know about such default. The arrears were in fact deposited on 1-1-1989 after one year of the default and that too after the appellant was directed to do so by this Court while confirming the order of stay on 4-12-1988.
12. It was a case of gross negligence. The appellant was again bound by the acts of his Advocate.
He too should have been vigilant to find out the correct position about the payment of arrears of rent and monthly rent due. Thus, from whatever point of view the matter may be looked at the appellant has got no case for condonation of this serious lapse on his part.
13. During the pendency of this appeal the appellant made two applications, one bearing C.MA. No, 167 of 1991 under section 151, C.P.C., and the other bearing C.M.A. No, 297 of 1992, under section 151, C.P.C., in an attempt to side-track the issue with a view to frustrate the order of eviction passed against him. The subject-matter of first application was denied by Gulzar Ahmad, the respondent No, 1, without any loss of time. Likewise the lease of Shop No, 3 to one Abdul Wahid during the pendency of this appeal had nothing to do with this appeal which was filed against the order passed under section 16(2) of the Sindh Rented Premises Ordinance, 1979. It may be recalled that the eviction of the appellant was sought on four grounds mentioned in para 2 above, which includes the ground of default also. Both these applications were obviously made to confuse the issue.
14. In the result the appeal fails and is dismissed with costs. Two months' time is, however, allowed to appellant to vacate the demised premises. As a necessary corollary to this order C.MA. No, 167 of 1991 and C.MA. No, 297 of 1992 are also dismissed.