1. This is First Rent Appeal, filed by the appellant, challenging the impugned order, dated 26-9-1998, passed by the learned IVth Rent Controller (South), Karachi in Rent Case No.1222 of 1997, striking off the defence of appellant/tenant with directions to vacate the premises within 60 days from passing of the order.
2. Brief facts of the case are that respondent/landlord filed ejectment proceedings against the appellant/tenant on the ground of default. Learned Rent Controller passed order on 10-2-1998 on application under section 16(1) of Sindh Rented Premises Ordinance, 1979, filed by the respondent/landlord and ordered that appellant/tenant should deposit the rent of Rs.700 from September, 1996 upto date and future rent at the same rate by 10th of every month. The rent already deposited by the appellant/tenant in M.R.C. No.2045 of 1996 may be adjusted in this case. It appears that appellant/tenant produced two receipts relating to July, August and September, 1998, stated to have been deposited in the above rent case; so far rent for February to June, 1998 is concerned, no explanation has been advanced by the appellant/tenant that the rent for those months have been deposited and, therefore, his defence was struck off, hence this appeal.
3. Learned counsel for appellant/tenant has submitted that the order, dated 26-9-1998 is vague and the report of Nazir for the above period is silent and according to the learned counsel for appellant/tenant, the learned Rent Controller has not taken into consideration the report of Nazir and has passed the order without calling the report of Nazir. According to him, the appellant/tenant has never remained defaulter and he has made compliance of the tentative order passed by the learned Rent Controller. He has also drawn my attention on the receipts for payment of rent in Rent Case No.1222 of 1997 and finally he has submitted that it is a fit case for remand and the matter be decided on merits. He has placed reliance on PLD 1982 Lab. 519, 1996 CLC 1312, 1984 CLC 68 and PLD 1978 Kar. 145.
4. On the other hand, learned counsel for respondent/landlord has vehemently opposed the arguments rendered by the learned counsel for the appellant/tenant and according to him, the rent receipts which are said to be deposited in M.R.C. No.2045 of 1996 and the rent has not been deposited in Rent Case No.1222 of 1997. According to him previously. the ledger number of M.R.C. was 514 of 1997 and after rent order, dated 10-2-1998 the ledger number has been changed and is 357 of 1998 and this has created confusion and the rent has not been deposited in Rent Case No.1222 of 1997; the learned Rent Controller has rightly struck off the defence of the appellant/tenant and submitted that appeal has no merits and is liable to be dismissed. When asked about the Nazir's report, learned counsel for respondent landlord could not point out Nazir's report from the record but after great labour the Nazir's report was found at page 293 of the record and proceedings of Rent Case No.1222 of 1997. An application under section 151, C.P.C. has been moved on behalf of the appellant/tenant before the learned Rent Controller to allow him to deposit the rent from July, 1998 onwards in the name of one Tariq Lodhi as per documents, the respondent is not the landlord and that such application has been moved on 22-8-1998 and the report of Nazir only reveals that "No deposit as per ledger report dated 14-8-1998".
5. I have examined the impugned order, dated 26-9-1998, passed by the learned Rent Controller and it is very startling to observe that the learned Rent Controller in his order has mentioned that report of the Nazir for this period is silent and from such observation of the learned Rent Controller, it is quite obvious that he has not taken into consideration the report of Nazir and has not called the report from Nazir in this regard and thus, impugned order passed by the learned Rent Controller appears to be vague and indefinite; neither amount of arrears of rent was shown therein nor the month from which future rent was to be deposited was specified and in these circumstances, the appellant/tenant had committed only a technical and not wilful default, and therefore, he could not be condemned as guilty of not depositing rent in Court. I have also considered the arguments of the learned counsel for the parties and after going through their arguments, material available on record; the rent order passed by the learned Rent Controller and the impugned order, dated 26- 9-1998, I am of the considered view that impugned order being defective and Nazir's report has not been called for with regard to default, if any, committed by appellant/tenant, which is on the contrary silent, as observed by the learned Rent Controller while passing impugned order, dated 26-9-1998. Accordingly, the appeal is allowed; the impugned order, dated 26-9-1998 is set aside and the case is remanded to the learned Rent Controller to decide the case on merits and according to law.
6. The parties are directed to appear before the learned Rent Controller on 14-2-2001.
7. The parties are left to bear their own costs.
8. The above are the reasons of my short order, dated 18-1-2001.