HUSSAIN ADIL KHATRI, J.- This appeal has been filed under section 24 _ of the Karachi Cantonment Act, 1963 against order dated 2-3-1994 passed by the Addl. Controller of Rent, Clifton Cantonment, Karachi, under section 17(9)of the Act, whereby the defence of the appellant was struck off and he was ordered to put the respondent in possession of the premises, as the appellant had failed to deposit the rent in compliance of the order passed by the learned Controller u/S. 17(8) of the said Act.
2. Briefly the facts are that late S.M. Younus Rizvi was tenant of the house situated on Plot No. 10-B, 7th Central Street, Phase II, Defence Housing Authority, Karachi on the monthly rent of Rs. 3,000/-.
3. The respondent filed the rent case against the said tenant on the ground of requirement of the above premises for his personal use.
4. The respondent filed application under the aforesaid section 17(8) for direction to the tenant to deposit rent in Court. The learned Rent Controller having found that the said tenant had already deposited the rent till December, 1993, in Misc. Rent Case No. 52/93, directed the said tenant to deposit the rent for the month of January 1994 before 5-2-1994 and continued to deposit future rent before 5th of each succeeding month.
5. When the matter was taken up on 23-2-1994 the respondent filed the application under section 17(9) of the Act, requesting the Court to strike off the defence as the tenant had failed to deposit the rent. The learned Rent Controller called for there report from the Accountant in respect of the deposit made by the said tenant and adjourned the case to 2.3.1994 and on that date passed the impugned order.
6. It is admitted position that no notice of the application under section 17(9) was ordered to be issued to the tenant and the above application was granted accordingly without hearing the tenant, in derogation of the fundamental principle of law that none is to be condemned unheard.
7. The respondent who is appearing in person and is an Advocate of this Court, however, has contended that the order under section 17(8) directing the tenant to deposit the rent was passed in his presence on 5-1-1994, and, therefore, no further notice was necessary to the tenant, when he failed to comply with the order and committed default in payment of rent. Suffice it to say that the above submission of the respondent, overlooks the fact that the learned Rent Controller before exercising jurisdiction under section 7(9), had to give notice to the tenant to show t r. Is to why his defence should not be stock off. If the tenant in response to the whole notice offers, a valid explanation for non-compliance of the order, in consonance with the principles that have been laid down in judicial pronouncements, the learned Rent Controller has ample power to condone such default in deposit of rent.
8. It is pointed out by the learned counsel for the appellant that the said tenant had expired on 13- 3-1994 after prolonged illness. It is further stated that he was hospitalized for a long time before his death. The present Appeal therefore has been filed by his legal representatives.
9. In view of the above this appeal is allowed and impugned order dated 2-3-1994 passed by the learned Rent Controller on the respondent's application under section 7(9), Cantonment Rent Restriction Act, 1963 is hereby recalled.
10. Learned Rent Controller shall decide the above application afresh after notice to the other side.