1. ' This rent appeal is directed against the order passed by IInd Rent Controller Karachi (South) on 2- 5-1998. In fact this is an order passed during execution proceedings of the earlier ejectment order passed in Rent Case No,889 of 1992 on 15-10-1997 and by this appeal the abovementioned two orders have been jointly challenged.
2. ' In short the facts of the case are that Hafizuddin the landlord and owner of a building constructed on Plot No,C.L-10, named Alfarid Centre, Molvi Tamizuddin Road, Karachi, had rented out one of the offices, No,G-7, in the said Alfarid Centre to the appellant Messrs Wymco Traders. Monthly rent was Rs,6,875 and the tenancy had been created by an agreement.
3. ' Hafizuddin, the landlord, filed the rent case on 31-5-1992 pleading that the tenant/appellant had failed to pay rent from 1-1-1992 till the filling of the rent application and, therefore, he sought the ejectment of the tenant.
4. ' The appellant/tenant was served with the notice and he filed his written statement in the Court of Rent Controller on 29-10-1992. The relationship as tenant was admitted by the appellant and he pleaded that he had been paying the rent regularly. However, he pleaded that for the last 8/9 months the landlord had refused to accept the rent and therefore, the tenant having no other alternative had filed a Miscellaneous Rent Case No,1603 of 1992 and had deposited the rent which was not accepted by the landlord. Thereafter, the appellant claimed that he was continuously depositing the rent in the miscellaneous. Rent case and that, therefore, there was no default committed by him.
5. ' During the proceedings before the Rent Controller it appears that, an application under section 16(1) of Sindh Rented Premises Ordinance was also moved by the landlord on 2-12-1992 to which objections were filed by the tenant claiming that the rent was already being deposited and that there were no arrears. However, the record of the Court of Rent Controller shows that on 13-1-1993 an order was passed by the Rent Controller allowing the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979. The said order is reproduced for convenience:-- "Advocate for applicant and opponent are present. Tenancy admitted. Rate of rent admitted. The applicant states that opponent has not paid rent from 1-1-1992 till 3-11-1992 at the rate of Rs,6,875 per month.
6. ' The advocate of opponent states that he has been depositing (rent) from 1-1-1992 till today in M.R.C. No,1603 of 1992 in this Court. Advocate of applicant requests that the rent deposited by opponent in M.R.C. No,1603 of 1992 be transferred and adjusted in this rent case to which Advocate of opponent agrees and has no objection. He further requests that then he be allowed to start deposting rent from January, 1993, paid (payable) in February, 1993 in this rent case. The opponent is directed to deposit rent from the month of February 1993 on or before 10th of the following month till the disposal of this rent case. Hearing 26-1-1993. Affidavit in evidence of applicant has been filed.
7. Reserved for cross of applicant.
8. (Sd.)
9. Dated 13-1-1993"
10. ' As a result of the tentative rent order passed, the rent already paid in miscellaneous rent case stood adjusted and the tenant started depositing the rent in the rent case regularly. The appellant in his Memo. Of Appeal has given the details of the dates of deposit, the period for which the rent was deposited and the amount showing thereby that at least after the passing of the tentative rent order absolutely no default was committed and on the contrary the rent was deposited in advance every month and the same was voluntarily deposited at the increased rate of 5% from January, 1994, January, 1995 and January, 1996 as such arrangement had been settled between the parties.
11. The receipts of the payment of the rent in the miscellaneous rent case as well as the main rent case, copies of which have been placed before this Court along with the memo. Of Appeal, vouch for the above contention and the same is not denied by the landlord.
12. ' However, it seems from the record that after the landlord had filed his affidavit in-evidence on 2- 12-1992 and the copy was received by the tenant, the tenant failed to cross-examine the landlord for the period of nearly 5 years and ultimately the Rent Controller on 21-8-1997, observed that no further time for cross-examination of the evidence of landlord could be extended. Thereafter, the Rent Controller gave chance to the tenant to lead his evidence/file the affidavit-in-evidence but the tenant failed to avail the opportunity and remained absent. As a result the side of evidence of the tenant was ultimately closed by the Rent Controller.
13. ' The Rent Controller, then proceeded to decide the case and passed a judgment on 15-10-1997. The Rent Controller framed the following issues:--.
(1) Whether there is any default in payment of rent?
(2) What should the order be?
14. ' The Rent Controller in his judgment held that the tenant had committed default in payment of the rent from the January 1992 for a period of 8/9 months as he had admittedly deposited the same at one time on 24-10-1992 in M.R.C. No,1603 of 1992, being sum of Rs,68,750. According to the Rent Controller the contention of the tenant that the landlord had refused to accept the rent from him and, therefore, he was forced to deposit the same in miscellaneous rent case was not supported by any evidence. Not only this, but the tenant under such circumstances should have first resorted to the second mode of tendering of the rent viz. By way of sending the same through money order but that procedure was also not adopted by the tenant. And therefore, the tenant was rightly held to be defaulter. However, the Rent Controller also held that after passing of the tentative rent order, the rent deposited in the Court was for some months paid beyond the time i,e, 10th of the following month but that appears to be an erroneous findings as I have gone through copies of all the receipts of payment of rent in the Court of the Rent Controller and have also minutely perused the tentative rent order. The tentative rent order clearly speaks of a direction that the rent of February, 1993 was to be paid on or before the 10th of the following month and consequently, the rent for all the other months was to be deposited in the similar manner. Copies of the receipts produced by the counsel for the tenant along with the memo. Of this appeal clearly show that rent was being deposited every month, for the current month and, thus, there was no violation of the order of deposit of the rent as per tentative rent order. The finding of the Rent Controller, therefore, to that extent is clearly erroneous and set aside.
15. Still there remains the allegation of default of payment of rent for the period January, 1992 to October, 1992. The rent for all these months was deposited in lump sum on 24-10-1992. The reason given by the tenant for such deposit at one time instead of paying the rent every month, was that the landlord had refused to accept the rent from him. He, however, failed to substantiate such allegation by evidence as neither he has cross-examined the landlord whose affidavit-in evidence was on the record nor the tenant himself led any evidence in support of his contention.
16. ' Learned counsel for the appellant, however, contended that the order of ejectment against the tenant was ex parte as it was without recording of the evidence and he relied on the case reported in PLD 1986 Peshawar p.81. His contention was that justice on merits should be done and that since this was first rent appeal, another opportunity be allowed to the tenant to lead his evidence and that any in-convenience caused to the landlord could be adequately compensated in shape of awarding costs.
17. ' It has been held in the above cited case that Court was empowered to grant ex parte decree without recording of evidence but such power was discretionary and was to be used judicially. At the same time in the reported case, it was held that when partial evidence was on record, the trial Court had to discuss the evidence on record in order to give findings on the issues and had not to pass ex parte decree without discussing such evidence. This being the case, the facts of the reported case are altogether different. In the present case, there was absolutely no evidence on record from the side of the tenant and, therefore, giving of the findings after discussion of his evidence was not possible and, therefore, the Rent Controller rightly passed the order holding that tenant had failed to lead the evidence and at the same time failed to challenge the evidence of the landlord by way of cross-examination. Learned counsel for the appellant further contended that the evidence in shape of the receipts of the deposit of the rent have been produced along with the memo. Of Appeal and that the case should be remanded to the Rent Controller for considering such evidence or this Court should consider the same while deciding the appeal.
18. ' The request of the learned counsel for the appellant does not appeal to the mind to be reasonable as the landlord has earned the right to eject the appellant from his own property and will have stand prejudiced by accepting the request of the tenant/appellant. Equity has to be observed and while observing the same, the conduct of the tenant/appellant before the Rent Controller cannot be overlooked where his Advocate failed to cross-examine the landlord for a period of about 5 years and thereafter, did not lead his evidence. The appellant does not deserve to be rewarded for such lethargy on his part or lack of vigilance on part of his Advocate. If the appellant has any grievance against his Advocate, the doors of justice are not shut on him and he could proceed before the Bar Council for appropriate action against his Advocate if he could prove the allegations and also could seek compensation or damages if the Advocate had committed breach of his contract with the appellant by filing a suit against him. In no way the arguments of the learned counsel for appellant convinced me to remand this case for the evidence of the tenant, or accept the additional evidence here. However, receipts were produced by appellant along with the memo. Of appeal.
19. There is also no explanation on part of the tenant as to why he did not send the rent by money- order after the refusal by the landlord. Contention of the learned counsel for the appellant, that the party should not be made to suffer on account of negligence of his counsel, also does not appeal to me in this case, as it is not mere negligence of the counsel in this case but the conduct of the tenant also, to be gross negligent as he kept himself totally ignorant as to when his evidence was to be recorded, and as to what was the stage of the case and what was happening with the case for a long period of five years although he had been depositing the rent regularly in the Court and in that connection he must be visiting the Court of Rent Controller personally or through his agent.
20. ' In the case of Shezan Limited v. Abdul Ghaffar and others 1992 SCM R p.2400, in the judgment delivered by his Lordship Justice Ajmal Mian has held that the provisions relating to payment of rent in the Sindh Rented Premises Ordinance, would be strictly construed in favour of the landlord.
21. Therefore, if the tenant of his own accord waited for about 9/10 months to deposit the rent in a miscellaneous rent case, he could not be rewarded with any concession, and therefore, I have no hesitation to hold that the order of the Rent Controller in declaring the appellant to be a defaulter in respect of the rent for the months of January, 1992 to September, 1992, is well-reasoned and correct. Reference to 1974 SCM R p.162 could also be made in support of this finding. Section 10(4) of Sindh Rented Premises Ordinance, requires the written acknowledgement, the postal money-order receipts or receipts of the Controller, as the case may be, to be accepted in proof of the payment of the rent. None of such documents were produced before the Rent Controller by the tenant in support of his contention that he was not in default with regards to the payment of rent during the above period. The provisions of subsection (4) of section 10 of the Sindh Rented Premises Ordinance, 1979 or the provisions in relation to payment of rent in this Ordinance, as decided by our Honourable Supreme Court in the above cited case of Shezan Limited, have to be strictly construed in favour of the landlord. The Rent Controller, has therefore, rightly held that the tenant was the defaulter.
22. Apart from above, this appeal was filed after waiting for the order to be passed on the application under Order 9, Rule 13, read with section 12(2), although on 15-10-1997 when the order of ejectment was passed the tenant was obliged under the law to file an appeal under section 21 within the prescribed period of limitation i,e, 30 days but the same was not done and the reason advanced by the tenant that he was not aware of the order of ejectment, is not acceptable as he was represented by a counsel and it was his duty to keep the track of the hearings of the case. It is not logical to hold this appeal to be within time, and to consider it as an appeal against the order passed on an application under Order 9, Rule 13, C.P.C. Only. Therefore, the appeal is even otherwise not maintainable being time-barred.
23. ' For all the above reasons, the order of the Rent Controller is maintained and the appellant/tenant should hand over vacant possession to the landlord within a period of 60 days from the announcement of this order.