1. ' An application C.M.A. No,502/95 dated 17-4-1995 under section 16(2) of the Sindh Rented Premises Ordinance is fixed today for hearing.
2. ' I have heard the learned counsel for the parties and perused the order dated 30-1-1995 passed by this Court and the report of the Nazir of the Civil Court on the reverse page of C.M.A. No,502/95.
3. ' Mr. Badrul Alam, counsel for the appellant, states that as per order dated 30-1-1995 the respondent/tenant was directed to deposit balance of amount of Rs,19,000 towards the arrears of rent in the office of the Controller up to 28-2-1995 and to deposit future monthly rent from January, 1995. Before the 10th of each succeeding month without fail but the respondent has neither deposited the arrears of rent amount Rs,19,000 till this date nor has deposited rent from January 1995 as would appear from the report of Nazir dated 18-4-1995 therefore there has been non- compliance of order dated 30-1-1995 of this Court by the respondent hence the defence of the respondent be struck off and the respondent be ordered to put the appellant in possession of the tenement. He has placed reliance upon Mst. Amtullbai Muhammad Ali v. M/s. Ibrahim Ghani (1984 CLC 2793); M/s. Crescent Publicity Service v. S.M. Younus and others (1980 SCM R 779) and Abdul Sattar v. Ali Ahmad (1985 CLC 25) in support of the contention.
4. ' Mr. G.T. Dehrani, learned counsel for the respondent, has argued that this Court is not competent to pass an order under sub-clause (1) of section 16 of the Sindh Rented Premises Ordinance, 1979 as under the said provision it is the Controller who could pass the order in respect of the arrears of rent therefore the non-compliance of order dated 30-1-1995 passed by this Court being in excess of the jurisdiction, the non-compliance of it would not result into the striking off the defence of the respondent hence this application was liable to be dismissed. The respondent has filed counter- affidavit of Masood Ahmad Ansari but in the said affidavit it has not been stated that compliance has been made by the respondent in respect of order dated 30-1-1995 passed by this Court.
5. ' Section 16 of the Sindh Rented Premises Ordinance, 1979 runs:-- "16. Arrears of rent.--(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the 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 monthly rent regularly on or before the tenth of every month, until final disposal of the case.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
(3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
6. Admittedly, appeal under section 21 of the Sindh Rented Premises Ordinance is in continuation of the ejectment proceedings filed before the Rent Controller therefore this Court as Appellate Authority would possess the power under section 16 of the Sindh Rented Premises Ordinance to direct the tenant to deposit the rent as provided in the said provision. Reference is made Mst.
7. Amtullbai Muhammad Ali v. M/s. Ibrahim Ghani reported in 1984 CLC 2793 at para.6 of page 2797 learned Judge in Chamber has observed:-- "From the above cited and discussed cases the following principles of law are deducible:
(i) That an Appellate Court under the late Ordinance could not have ordered the striking off defence on the basis of the tentative rent order passed by a Rent Controller.
(ii) That an Appellate Court was competent under section 13(6) to pass a tentative rent order for depositing of rent and to strike off defence in case of non-compliance of such an order by a tenant.
(iii) That an Appellate Court is competent to grant an interlocutory relief or to pass an interlocutory order even in the absence of express provision in the relevant law, in an appropriate case, which power is ancillary and incidental to the power to grant final relief.
(iv) That an appeal arising out of late Ordinance is in continuation of the original application.
(v) That if a statute provides an appeal to an established Court such an appeal shall be regulated by the practice and procedure of that Court in the absence of any contrary express provision in the statute itself.
7. I am inclined to hold that even under the Ordinance an appeal is in continuation of the original proceeding for ejectment before the Rent Controller and that an Appellate Court has the power under section 16 of the Ordinance to pass a tentative rent order. However, at the same time I am also inclined to hold that an Appellate Court is not obliged to pass a tentative rent order under section 16 and in a fit case it can decline to pass such order."
8. ' In case M/s. Crescent Publicity Service v. S.M. Younus and others (1980 SCM R 779) which was under the repealed West Pakistan Urban Rent Restriction Ordinance, Supreme Court of Pakistan held that High Court was competent to strike off defence of the tenant on his failure to comply with High Court's order in second appeal in respect of deposit of rent. In Abdul Sattar v. Ali Ahmad's case reported in 1985 CLC 25 at page 29 learned Judge in Chamber observed:-- "The balance of authority is in favour of the learned counsel for the respondent and as such however persuasive the contention of the learned counsel of the appellant may appear to be I cannot agree with his contention that the failure to comply the order of deposit would not result in the consequences visualized by section 16(2) of the Sindh Rented Premises Ordinance, 1979. But in the present case the impact of the decision in these cases would not affect the appellant for the reason that in my opinion there has been no default in complying the order of this Court."
9. In view of the argument advanced and the case-law cited, it can safely be said that this Court as an Appellate Authority and the appeal being in continuation of the ejectment application, could exercise powers under section 16 of the Sindh Rented Premises Ordinance in a fit cases and the non-compliance of the said order passed by this Court would attract the penal provisions of subsection (2) of section 16 of the Sindh Rented Premises Ordinance. In the instant case the respondent/tenant has not stated that he has made compliance of the order dated 30-1-1995 passed by this Court as Appellate Authority therefore there has been intentional non-compliance of this Court's order which was passed in presence of the respondent's counsel as such the respondent failed to deposit the arrears of rent and the future rent in terms of the order dated 30- 1-1995 passed by this Court therefore defence of the respondent/tenant is struck off with the direction to him to put the appellant into possession of the premises within 30 days subject to deposit of the rent by him for the said period consequently the appeal is disposed of in terms of this order.