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Constitutional Petition No. 595 of 1981, decided on 1st July 1981.

(a) Sind Rented Premises Ordinance (XVII of 1979)-

-- Ss. 16 & 19-Rent arrears-Summary Inquiry for determination of arrears of rent by Rent Controller-Nature of order passed in such inquiry-Tentative-Final determination of rate of rent and arrears to be decided after close of entire evidence and arguments-Contention that S. 16 being mandatory in terms requires Rent Controller to finally determine arrears of rent by making only summary inquiry during pendency of eviction proceedings, held, not correct and for such cases proper. procedure laid down under S. 19.-[Interpretation of statutes].

(b) Sind Rented Premises Ordinance (XV1I of 1979)-

S. 16-Summary inquiry-Sufficient discretion vested in Rent Controller without specifying procedure for determining rent by summary inquiry-Nature of summary inquiry-Differs from case to case and depends entirely on facts and circumstances of each case-Discretion vested in Controller to determine what type of summary inquiry he would make-Full regard however to be paid to principles of natural justice.-[Natural justice, principles of].

Ibrahim Ismail v. S. H. A. Gardezi P L D 1981 Kar. 622; Azad Bin Haider v. Adam Khan P L D 1981 Kar. 225 and Mumtazuddin Ahmad v. Sultan Jehad Begum P L D 1981 Kar. 329 distinguished.

(c) Sind Rented Premises Ordinance (XVII of 1979)-

S-- 19-Application under S. 16 of Ordinance-Held : Cannot be filed independently and has to be made in a case of eviction filed by landlord.

Suleman Kassam for Petitioner.

Date of hearing : 23rd June, 1981.

SALEEM AKHTAR, J.-This Petition is directed against the order of the Controller passed on application under section 16, Sind Rented Premises Ordinance, 1979. The petitioner is the tenant of respondent No. 2. An

ejectment application was filed on the ground that the petitioner has failed to pay rent from _1st ebruary, 1976 to 31st July, 1978 at Rs. 1,250 per month. The petitioner denied the allegation and pleaded that the rent is (a3 Rs. 250 p. m. excluding electricity and gas charges. It was contended that the petitioner has paid the rent regularly but the respondent No. 2 never issued any receipt and after his refusal to accept the rent the petitioner started depositing it in Court. In these proceedings the respondent No. 2 made an application under section 16 (1) of Sind Rented Premises Ordinance, 1979. The petitioner filed a reply to the application under section 16 (1) of the Ordinance and documents such as certified copy of the plaint, petitioner's deposition relating to the rate of rent and a copy of Part I issued by the Excise and Taxation Department in which gross annual rental value of 4 flats was assessed at Rs. 7,560 per month i.e. Rs. 630 per month. The learned Controller after considering the averments made in the application, its reply, the documents produced by the parties and hearing the arguments, passed the impugned order on 1-2-1981 whereby tentatively the rent was fixed , Rs. 600 per month plus Rs. 100 per month towards electric and the gas charges. Rs. 42,000 were tentatively held to be arrears and after crediting the amount deposited in Court the petitioner was directed to deposit the balance in Court. A review application filed by the petitioner was also dismissed on 29.4-1981.

2. The learned counsel for the applicant has contended that the order passed by the Controller is without jurisdiction. According to him the Controller has passed the order without making any enquiry. It has further been contended that the Controller had no jurisdiction to determine the tentative rent. The learned counsel has contended that as the provisions of section 17(1) of the Ordinance are mandatory in nature, the Controller has either to accept or reject the claims made by the parties in respect of rate of rent and to determine it finally.

3. Section 16 provides for a summary enquiry as the Controller deems fit for determination of the arrears of the rent due. This is an interlocutor proceeding taken in the case for eviction filed by the landlord. Therefor the very fact that the law authorises the Controller to make a summary enquiry suggests that the nature of order has to be tentative. The final determination of the rate of rent and the arrears are to be decided after the entire evidence of the parties has been led and arguments have bee heard. It would be incorrect to say that section 16 being mandatory in term requires the Controller to finally determine the arrears of rent du by making only summary enquiry during the pendency of eviction proceedings. Such an interpretation will work contrary to the provisions of law. There are instances where in ejectment case the main dispute relates to the rate o rent and the period of default. For such cases a proper procedure has bee provided under section 19 of the Ordinance. How can it then be presumed that in respect of determination of the same issue in an interlocutor proceeding under section 16 of the Ordinance the Controller is required to finally determine the entire disputes relating to the arrears of rent and rate of rent. Considering from this point of view it is clear that proceedings under section 16 is not in the nature of the proceedings as provided by section 19. It is in the nature of proceedings provided under section 13 (6) of the Urban Rent Restriction Ordinance, 1959.

4. Section 16 provided for a summary enquiry as the Controller deems fit to make. Sufficient discretion has been vested in the Controller without) specifying the procedures for determining the rent by summary enquiry.

The nature of summary enquiry differs from case to case and depends entirely on the facts and circumstance of each case. It is, therefore, . left to the discretion of the Controller to determine what type of summary enquiry h would make. In determining procedure for summary enquiry full regard should be had to the principles of natural justice which should not in any circumstance be violated by the Controller. In the present case for determining the arrears of rent the parties had put up their claim in writing and documents were also produced. The parties were also heard and in the circumstances as the enquiry is of a limited nature for tentative determination as against final determination, the enquiry made by the Controller seems to be proper and legal. Nothing has been pointed out to establish that the order passed by the Controller was without jurisdiction or without lawful authority. The Controller on consideration of the material produced before him and after making summary enquiry which is not in violation of the principles of natural justice passed the order and, therefore, no exception can be taken for invoking the Constitutional Jurisdiction of this Court.

5. The learned counsel for the petitioner has relied upon the following cases ;----.

P L D 1981 Kar. 622 ; P L D 1981 Kar. 225 and P L D 1981 Kar. 329

In all these cases the matter related to enquiry under section 14 of the Ordinance where the Controller after making summary enquiry is required to pass a final order of ejectment. In these circumstances the Courts have held that the summary enquiry under section 14 read with section 19 of the Ordinance does not exclude right of tenant to show cause or to entitle Controller to ignore procedure laid down under section 19 (4) and principles of natural justice. The present case is completely different from the cases which fall under section 14 of the Ordinance. Under section 16 of the Ordinance, in ejectment proceedings, on an application by the landlord the Controller is required to pass tentative order for deposit of rent which is of an interlocutory nature as the final determination has to be made after following the procedure laid down by section 19 of the Ordinance. An application under section 16 of the Ordinance cannot be filed independently. It has to be made in a case of eviction filed by the landlord. The petition has no merits which is dismissed in limine.

6. We allow the petitioner to deposit the arrears of rent determined by the Controller upto 15th July, 1981. The petitioner would be entitled to produce evidence to establish actual rate and quantum of rent as well as in respect of arrears, at time of trial before the Controller.

s. A. H. Order accordingly.

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