1. ' This is an appeal under section 21 of Sindh Rented Premises Ordinance, (hereinafter called Rent Ordinance) directed against an order, dated 25-7-1998 passed by learned IInd Rent Controller, Karachi South in Rent Case No,1558 of 1997, Jamia Masjid Al-Rehmania Trust v. Muhammad Gulzar, whereby on an application under section 16(2) of Rent Ordinance moved on behalf of respondent/applicant the defence of appellant was struck off and he was directed to hand over the vacant possession of the premises within thirty days, hence this appeal.
2. ' The brief facts of the case are that the appellant/opponent was directed under section 16(1) of Rent Ordinance to deposit rent as per order, dated 4-3-1998 whereby it was observed that the appellant was in arrears of rent from October, 1997 to December, 1997, therefore, appellant was directed to deposit entire arrears of rent and accumulated electric charges in the ejectment case and also future monthly rent as well as electrict charges at the same rate in Court regularly on or before 10th of every calendar month till disposal of the rent case. The respondent filed an application under section 16(2) of Rent Ordinance on 2-5-1998 stating therein that the appellant/tenant has committed default in making deposit of the rent in Ejectment Case No,1558 of 1997, therefore, has committed deliberate and willful default in making compliance of order, dated 4-3-1998. The Rent Controller after hearing the learned counsel for the parties, passed the impugned order, holding that the appellant/tenant has committed deliberate and willful default in not making compliance of tentative order and thereby struck off his defence..
3. ' I have heard learned counsel for parties and perused the record and proceedings of the case.
4. ' The only point in this appeal is whether the appellant can be termed to be defaulter in the payment of rent as he has failed to deposit rent in the Ejectment Case No,1558 of 1997 but he continued to deposit rent in Miscellaneous Rent Case No,1746 of 1997.
5. ' Contention of learned counsel for the appellant is that the appellant being illiterate and ignorant continued to deposit rent in Miscellaneous Rent Case No,1746 of 1997, therefore, non-deposit of rent in Ejectment Case No,1558 of 1997 was neither willful nor deliberate non-contumacious, hence id did not call for penalty provided under section 16(2), of Rent Ordinance. He has placed reliance upon Noor Muhammad and another v. Mehdi (PLD 1991 SC 711); (ii) Zafarullah Khan v. Abu Bala- (1995 CLC 25); (iii) Raujee v. Abdul Razzak Khatri (1994 CLC 1094) and (iv) Muhammad Haji v. Amir Bano (1995 M LD 833) in support of his contentions. He further submitted that the case Hussain Trading Company, Karachi v. Jalal Brothers (Pvt.) Ltd. (1994 SCM R 159) relied upon by the learned counsel for respondent is not applicable to the facts of instant case as in the said cited case there had been short deposit of one month's rent as well.
6. 'Contention of learned counsel for respondent is that the appellant did not take this plea of being illiterate and ignorant in the objections and the affidavit filed by him before the Rent. Controller but herein appeal he has taken this plea. He further submitted that there has been willful, deliberate and contumacious default in making compliance of tentative rent order, dated 4-3-1998. He also submitted that even after the filing the application under section 16(2) of Rent Ordinance, the appellant continued to deposit rent in Miscellaneous Rent Case No,1746 of I 997, therefore, there has been deliberate and willful non-compliance of tentative rent order. He has placed reliance upon Hussain Trading Company, Karachi v. M/s. Jalal Brothers (Pvt.) Ltd. (1994 SCM R 159) and (ii)
7. Mehmood Bashir v. Mst. Mubina Begum (1998 SCMR 427) in support of his contentions.
8. It is admitted by the learned counsel for appellant that as per tentative rent order, dated 4-3-1998, the appellant was to deposit rent in ejectment case No,1558 of 1997 but rent was not deposited in the said ejectment case but was deposited in Miscellaneous Rent Case No,1746 of 1997. The only explanation given by the counsel for appellant is thiat the appellant was illiterate and was not in the knowledge of the fact that he had to deposit the rent in ejectment case No,1558 of 1997 and further that by deposit of rent in miscellaneous rent case no prejudice has been caused to the respondent. The said ground of being illiterate and ignorance of the order on the part of appellant was not taken by the appellant in his objections and counter-affidavit to the application filed under section 16(2), of Rent Ordinance, therefore, the said pleas raised would be after thought and could not be considered to be valid grounds for the purpose of treating the said non-compliance to be one of technical nature. The memo. Of appeal at page 3 states that the dates, on which the rent was deposited in Miscellaneous Rent Case No,1746 of 1997 from 8-11-1997 till 10-7-1998. The said statement shows that the appellant continued to deposit rent even after the application was moved by the respondent under section 16(2) of Rent Ordinance. At last the appellant when he came to know that he was depositing rent in miscellaneous rent in contravention of the terms of tentative rent order he should have immediately shifted the deposit of rent in Ejectment Application No,1558 of 1997 but he continued to deposit in miscellaneous case for which no justifiable explanation is furnished. This act and omission on the part of the appellant would be willful, deliberate and contumacious.
9. ' In the circumstances, no exception could be taken to the finding of the Rent Controller. The facts of cited cases by the learned counsel for appellant are quite different and distinguishable to the facts of instant case, hence are not on all fours.
10. ' I do not find merit in this appeal in view of the reasons stated above, consequently same is hereby dismissed. However, the appellant is given two months period to vacate the premises.