1. ' The appellant has preferred this appeal being aggrieved with the order dated 30-9-1993 passed by the IIIrd Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No, 98 of 1993 whereby the appellant/tenant's application dated 22-8-1993 seeking to modify the tentative rent order dated 13-7-1993 was dismissed while the application under section 16 (2) of the Sindh Rented Premises Ordinance for striking of the defence of the appellant/(Tenant) from the premises was allowed.
2. ' The brief facts of the case are that appellant is tenant in respect of shop premises situated and doing business under the name and style of "Italian Tailors".
3. ' Mst. Haseena Khatoon respondent purchased the demised premises from Islam Hussain. It is case of the respondent that the appellant/tenant used to pay Rs,400 as rent to the previous landlord excluding electricity and other charges. Respondent/landlady approached the learned Rent Controller for ejectment of the opponent/appellant from the shop and filed Rent Case No, 98 of 1993 while the appellant filed his written statement and claimed that rate of rent was Rs,150 per month and that he had been depositing the rent in the Rent Controller's Office in Miscellaneous Application at the rate of Rs,150 per month.
4. ' After filing of the written statement the learned Rent Controller passed an order dated 13th July 1993 under section 16 (1) of the Ordinance directing the appellant to deposit arrears of rent at the rate of Rs,400 per month from April 1991 to June 1993 for 27 months and to deposit future rent at the same rate commencing from July 1993 on or before 10th of every succeeding calendar month.
5. ' The learned Controller was further pleased to direct the (respondent) Mst. Haseena Khatoon preventing her from withdrawing the rent at the rate of Rs,400 per month and allowing her to withdraw the rent at the rate of Rs,150 per month. The rent already deposited in Miscellaneous Rent Case was ordered to be adjusted in this case. The learned Controller had passed this order after considering the affidavit filed by the respondent Mst. Haseena Khatoon an affidavit of previous owner Mr. Islam Hussain. In both these affidavits it was affirmed that the rate of rent was Rs,400 per month. On the other hand the appellant failed to prove that the rate of rent of the premises was Rs,150 per month.
6. ' The appellant on 22nd August 1993 submitted an application to the learned Controller requesting therein to recall and modify the order dated 17-7-1993 passed by the learned Rent Controller under section 16 (1) of the Sindh Rented Premises Ordinance 1979 but the learned Controller vide his order dated 30th September 1993 rejected the application and on an application under section 16 (2) of the Ordinance ordered to strike off the defence of the appellant.
7. ' I have heard Mr. A. A. Abbasi learned counsel for the appellant at length who has contended that rate of rent was Rs,150 per month and not Rs,400 per month as tentatively held by the learned Rent Controller and that the order striking off the defence and directing ejectment of the applicant from the premises is not sustainable at law. I have also heard Mr. Sanaullah Qamar learned counsel for the respondent landlady who has contended that the order of the learned Rent Controller is quite legal and within jurisdiction inasmuch as the appellant/tenant himself, had chosen not to deposit the rent as ordered by the Controller. As such the orders passed by the learned Controller deserve to be maintained and upheld.
8. ' For the sake of convenience and proper understanding I would like to reproduce the provisions of section 16 (1) of. The' Ordinance which reads as under:- "Where a cause for eviction of tenant has been filed, the Controller shall on application by the landlord and after such summary enquiry as he deems fit to make, determine arrears of rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit the monthly rent regularly on or before 10th of every month, until final disposal of the case."
9. ' The Controller on the application of the landlady in this appeal was pleased to order for depositing of arrears of rent at the rate of Rs,400 per month after he made summery enquiry in respect of rate of rent. In support of the enquiry, respondent landlady, and previous owner Mr. Islam Hussain filed their affidavits affirming the rate of rent to be Rs,400 per month. The appellant on the other hand failed to produce any evidence in support of his claim that the rate of rent was Rs,150.
10. ' After the failure of the appellant in depositing the arrears of rent or monthly rent due as ordered by the Controller the Controller was pleased to order that defence of the tenant shall be struck off and landlady put into possession of premises within 60 days.
11. ' I would like to refer (1) (1984 CLC 3102) case of Dr. Abdullah Ghangro-Appellant v. Mst. Tahira Begum-Respondent whereas it has been held as under:-- "S. 16 (2)--Ejectment-Defence, striking off tenant depositing rent ill miscellaneous application despite order passed by Rent Controller for deposit of rent in rent case--Order of Rent Controller, held, not complied with--Deposit of rent in miscellaneous application nor substantiated--Defence of tenant struck off in circumstances."
12. ' In this connection I may also refer to (2) (1983 CLC 2211):- "S. 16 (2) & 2 (f)--Landlord, definition of--Eviction proceedings--Tenant renting premises from respondent No,2 (wife of respondent No,1) Premises actually belonging to respondent No,1--Tenant regularly paying rent to respondent No,2 and on refusal to accept rent by respondent No,2 moving Rent Controller for deposit of rent and continued depositing rent in that case. Both respondents filing ejectment application on ground of personal use--Rent Controller in ejectment application by both respondents passing tentative order for deposit of rent--Tenant not depositing rent in case by both respondents but continued depositing rent in his rent application with regard to respondent No,2 alone--Conduct of tenant not proper compliance of order of Rent Controller in case by both respondents-- Striking off defence of tenant and ejectment upheld, in circumstances ' In the above-cited case of Dr. Abdullah. Ghangro it has been held "The facts in these cases mentioned above are similar to those of the case referred to above, except that monthly rent in that case deposited in the account of the miscellaneous proceedings but after the date specified by the Controller, whereas in this case the deposits of rent said to have been made in the miscellaneous proceedings have not been proved. Even if rent had been deposited in the miscellaneous proceedings, there was not compliance of the order of the Controller particularly in the circumstances that no explanation was furnished for not depositing the rent with the Controller as directed."
13. ' In that case referred above it was further held "In view of this legal position, the insistence of the appellant in depositing rent in a separate rent case filed against respondent No,2 alone, cannot be said to be proper compliance of the tentative order of the Rent Controller referred to above. The learned Rent Controller was, therefore, justified in striking off the defence of the appellant. This appeal has no substance and is, therefore, dismissed with no order as to cost".
14. ' I would also like to refer the authority of Hon'ble Supreme Court PLD 1991 SC 484. Case of Chaudhry Rahimuddin-Appellant v. Chaudhry Jalaluddin-Respondent wherein it was held:- ' Sindh Rented Premises Ordinance (XVII of 1979)- "S. 16---Arrears of rent---Tentative rent order---While passing tentative rent order, Rent Controller had taken into consideration the versions of both the parties and ordered the deposit of the arrears with the proviso that landlord would not be allowed to draw rent by more than certain amount till the final disposal of the case---Merely the fact that Rent Controller had not accepted the rate of rent for the period of the arrears as pleaded by the tenant, would not render the tentative rent order as an improper or any arbitrary order and it could not be urged the Rent Controller had not taken into consideration the tenant's plea as to rate of rent." (page 486-48) (Sic)
15. Sindh Rented Premises Ordinance (XVII of 1979)--- "S. 16---Scope of the summary enquiry under S. 16 (1)---Tentative rent order by Rent Controller--- While passing tentative rent order, Rent Controller was not to hold a full-fledged enquiry by examining the witnesses who had filed affidavits in evidence in the main case---Where Rent Controller, while passing the tentative rent order had considered the versions of both the parties, such order would be in consonance with the provision of S. 16 (2) of the Ordinance---Where the rate of rent and period was disputed between the parties, Supreme Court directed that before allowing the landlord to withdraw the rent already deposited by tenants, Rent Controller would deal with the matter in terms of S.16 (1) & (3) as to the rate of rent and as to the period." (Page 487-C)?
16. ' Here in this case also there is total non-compliance of the order of the Rent Controller which had forced him to pass the order striking off the defence and directing ejectment of the appellant from the premises.
17. ' Besides hearing the learned counsel for the parties at length I have applied my mind to the facts And gone through the R & P of the case. In view of the admitted facts and circumstances and the case-law cited above, I am of the opinion that the appellant himself had chosen not to deposit the rent as ordered by the learned Controller and in these circumstances learned Controller was perfectly justified in striking off the defence of the appellant and directing his ejectment from the shop in dispute.
18. ' I would therefore dismiss the appeal. Needless to say C.M.A. No, 1114 of 1993 would also fail as infructuous it is therefore dismissed.
19. ' The appellant is however allowed two months' time to vacate the premises and hand over 'vacant possession to the respondent landlady.