MUNAWAR AHMAD MIRZA, C.J.- This appeal is directed against order dated 5th June, 1995 passed by learned Civil Judge-II-cum-Controller, Quetta
2. Facts briefly mentioned are that towards 8th September, 1994 appellant instituted proceedings for the eviction of respondent from two shops bearing No.9 and 10, Javeed Book Depot, situated at Gurdat Singh Road, Quetta. The eviction was sought on personal bona fide requirement and default in payment of rent from June, 1993 onwards.
Respondent filed written statement on 20th October, 1994 vehemently repudiating the claim of appellant.. Mode regarding collection of rent was also duly explained.
3. It may be seen that on 20th October, 1994 Controller has passed an order under section 13(6)
Baluchistan Urban Rent Restriction Ordinance directing the appellant to deposit rent due and future rent. The order is reproduced below in extenso. {{URDU MISS}} Thereafter considering the pleadings learned Controller framed issues and gave parties opportunity for leading evidence in support of their respective claims. Admittedly substantial evidence has already been recorded in this matter, before the trial Court. However, on 23rd April, 1995 appellant submitted an application praying for striking off the defence of respondent pleading non-compliance with order dated 20th October, 1994. Respondent opposed the said application and filed rejoinder on 23rd May, 1995. On hearing the arguments learned Controller, rejected above-referred application by means of order dated 5th June, 1995 which is reproduced below :- {{URDU MISS}}
3. Mr. Imranul Haq Advocate for appellant emphatically contended that respondent had failed to comply with order of Controller, dated 20th October, 1994, because deposit in favour of appellant's father cannot be construed as valid tender. According to him Controller had acted illegally by ratifying above referred deposit. Reliance was placed on the reported judgments in cases:
(i) Khawaja Ghulam Mustafa vs. Mian Waqar Ahmad (PLD 1980 S.C.9)
(ii) Mrs. Zubeda Begum Vs. Mrs. S.T. Naqvi (1986 S.C.M.R. 261)
(iii) Bahadur Khan and others Vs. Ch. Muhammad Hussain & others.
(1991 S.C.M.R. 429)
4. Whereas Mr. Muhammad Hashim Kakar Advocate opposing the appeal argued that father of appellant had been collecting rent concerning demised-premises from respondent, therefore, on his refusal the same was deposited with Controller. Learned counsel stressed that as per practice the rent had been validly tendered. He maintained that learned Controller himself had ratified said payment regarding arrears through order dated 20th October, 1994, therefore, at least bona fide mistake was caused while interpreting it. Reliance was placed on cases;
(i) Maj. (Rtd.) A.S.K. Samad Vs. It. (Rtd.) A. Hussain and others.
(1987 S.C.M.R. 1013)
(ii) Agha Abdul Majeed Vs. Inam Waris (P.L.D. 1994 Karachi-457)
5. Firstly question for consideration would be whether present appeal rejecting application for striking off defence, is maintainable. Undisputedly ing application for striking off defence, and directing ejectment of tenant is appealable. Section 15(1) enjoins that order passed by Controller finally disposing of application under section 13 of Baluchistan Urban Rent Restriction Ordinance (hereinafter referred as" The Ordinance) is challengable by way of appeal. Relevant provision is reproduced below:- "75. Appeal (1) Any party aggrieved by an order of the Controller finally disposing of an application made under Section 4, Section 10, section 11, section 13, of this Ordinance may within thirty days of the date of such order prefer any appeal in writing to the High Court.
Provided that no appeal shall lie against an order made by a Controller under sub-section (6) of section 13, determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the 'rent due; Provided further that no appeal shall lie from an interlocutory order passed by the Controller.
(2) ... ... ... ...
Consequences. Observation of following reports provide tremendous guidance for said view
(i) Hashim Khan vs. Ghulam Nabi and others (1973 SCMR 112)
" We have heard the learned counsel for the parties at a considerable length, and we have formed the view that this is not a case of wilful default on the part of the appellant in depositing the rent for the month of May, 1966, within rime, as directed by the learned Rent Controller. It is correct that the learned counsel for the appellant had interpreted the order of the Rent Controller in his own light, and advised the appellant to deposit the entire rent, including that for May, 1966, before the 15th of July, 1966. The appellant acted on the advise given to him by the learned counsel and he could not be penalised merely because the counsel's advice proceeded on a misinterpretation of the Rent Controller's order. In any event, we feel that it was a case of a bona fide mistake both on the part of the counsel and the appellant in the construction of the order of the learned Rent Controller, and there was thus no case of wilful default on his part".
(ii) Saeedan Bibi vs. Ali Hussain (1975 SCM R 261 at 262).
" Mr,M. G. Dastgir, learned counsel for the petitioner, has contended that it was a case of wilful default and the High Court should not have condoned the delay. He further contended that the case of the petitioner was distinguishable from the case decided by the Supreme Court in Hashim Khan vs. Ghulam Nabi. We have gone through the order of the learned Single Judge and are satisfied that he applied correct principles in this case. It is quite clear from the facts of the case that the respondent acted, on the advice given to him by his counsel and in such circumstances, he could not be penalised merely because the advice given to him proceeded on a misinterpretation of the Rent Controller's order. We, therefore, do not see any reason to interfere with the impugned order. The petition is dismissed."
(iii) Sarfarz Khan vs. Muhammad Abdul Rauf.
(P.L.D. 1969 Karachi P. 176)
(iv) Visumal Chatumal Khilnani vs. Ali Bakhsh and others.
(P.L.D. 1968 Karachi 521)
(v) Akhtar Hussain Versus Kabir Hussain.
(1982 C.L.C. 702)
(vi) Mai. (Rtd.) A.S.K. SAMAD V. Ltd. (Rtd) A. Hussain etc. (1987 S.C.M.R. 1013)
Additionally principle of law discussed in reported judgments relied upon by learned counsel for respondent supplement above conclusions for resolving the controversy.
For the foregoing reasons, I am inclined to hold that order of trial Court refusing to stricke-off defence of respondent does not suffer from any infirmity or legal defect.
Resultantly appeal is dismissed. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.