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Second Rent Appeal No. 213 of 1980, decided op 21st September, 1982,

-- S. 27 (7) read with West Pakistan Urban Rent Restriction Ordinance (VI of 195')), S. 15-Appeal under repealed Ordinance (VI of 1959) Saving of-Application under S. 13 of repealed Ordinance filed Repealed Ordinance providing second appeal and case such as mentioned in subsection (2) of S. 27 of repealing Ordinance--Nothing in repealing Ordinance which could be interpreted as taking away right of second appeal-Right of appeal vested right and accrues if existing on date of institution and not on date of decision and case to be disposed of in accordance with repealed Ordinance.

S. 13(6)-Arrears of rent-Approximate determination of-Tentative rent order leaving amount of arrears to be determined after verification of amount deposited in account of landlord by tenant-Only indica tions as to verification of account given-Held, such indications as to verification of account and then arriving at correct amount to be 3 deposited can hardly be considered approximate determination of rent and arrears of rent under S. 13(6).

Syed Ahsan ALi v. Jaffar Ali and 4 others P L D 1964 Kar. 418 and Muhammad Aslam v. Muhammad Umar and another P L D 1982 Kar. 107 rel.

Mohammed Ismail v. Ha ji Muhammad & Sons P L D 1978 Kar. 926 ref.

-- S. 115-Waiver-During ejectment proceedings landlord having knowledge of tentative rent order, accepting rent directly from tenant and at. higher rate-Held, to decide whether such conduct amounts to waiver, parties roust be beard and allowed to adduce evidence if necessary.

Ballentine's Law Dictionary, 3rd Edn., para. 1356 ; Syed Akhlaque Hussain v. Habib Ismail Bajwa 1974 S C M R 504 and Shaikh Maqbool Ahmad v. Muhammad Akbar Ali P L D 1978 Lah. 258 ref.

Syed Hyder All Pirzada for Appellant,

Khalid M. Ishaque for Respondent.

Dates of hearing : 17th, 18th and 19th Aagust, (982.

This IInd Appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 has been filed against order dated 15-3-1980 passed by VIII Additional District Judge, Karachi in 1st Rent Appeal No: 234 of 1979 dismis sing the appeal against the order of the VI Rent Controller, Karachi on application under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959 striking off the defence.

The facts briefly stated are that the appellant is the tenant of the respon dent in respect of building bearing No. A. M. 236-B, Sohrab Katrak Road, Karachi, on monthly rent which according to the appellant was Rs. 3,300 but according to the respondent was Rs. 3,208 per month under tenancy agreement dated 30-10-1971. The discrepancy in the amount of the monthly rent is apparently due to the fact that in clause 2 of the agreement, rent in respect of the demised premises was payable at rate of Rs. 1 and 25 paisas per sq. ft. In clause 3 of the agreement advance rent for 5 years which was to be determined according to the actual measurement of the area of the demised premises had to be paid and the same had to be adjusted against the monthly rent payable and after such adjustment, the rent had to be paid on monthly basis. The duration of the lease was to be for 5 years commencing from the date of delivery of the possession extendable for the period. of 5 years at the option of lessee at the same rent.

3. According to the respondent advance rent stood adjusted towards rent for period ending 31-7 :977 and the respondent filed application under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 on 21st May, 1978 for ejectment of the appellant on the grounds, that w.e.f. 1-8-1977 no rent bad been paid or tendered and that he required tenement for his personal bona fide use and occupation, for business purposes.

4. In the written statement filed by the appellant the tenancy under the terms and conditions mentioned in the agreement was admitted to have been initially for a period of 5 years and after expiry of first 5 years, it was contended that it was extended for further 5 years on the same terms and conditions and advance rent was paid, and further it was contended that the respondent had altered clause 3 of the lease agreement by converting the tenancy from monthly to yearly basis. It was the contention of the appellant that rent till, June, 1978 had been received by the Respondent and, therefore, there was no default. The ground that the respondent required the premises for personal bona fide use was denied, and it was contended that he wanted to get the premises vacated in order to get pagri and more rent.

5. The learned VI Rent Controller on 4-1-1979 passed the tentative rent order as under :-

"Heard Advocates for the parties, perused the records and statements of rent accounts filed by the parties. The applicant claims rent from 1-8-1977 to 31-8-1978 at rate of Rs. 3,200. The opponent claimed that he bad deposited rent from August, 1977 to October, :1978 at rate of Rs. 3,300 per month in the account of the applicant. Applicant should verify.

In the circumstances, the opponent is directed to deposit arrears of rent from 19-8-1977 to 31-12-1978 at rate of Rs. 3,200 less the amount deposited in applicant's account on or before 31-1-1979. The excess amount paid by the opponent be adjusted towards future rent.

The opponent is further directed to keep on depositing current and future rent in Court, in this case on 14th of each calendar month at rate of Rs. 3,200 per month till the disposal of the case. Put up on 15-1-1979 for settlement of issues."

6. On 6-2-1979 application under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959 was filed on behalf of the Respondent stating that the appellant had failed to deposit rent as ordered by Court and. his defence be struck off and he be directed to hand over vacant possession to the applicant (Respondent herein). The Nazir who was directed to report, made his report on 26-2-1979 stating that as per ledger no amount had been deposited by the opponent (appellant herein).

7. The appellant in the objections stated that the Respondent/Applicant had received Rs. 3,600 as excess rent which was to be adjusted according to the order of the Court and further that he had received the rent till February, 1979 and, therefore, the application was not maintainable.

8. The learned Rent Controller held. the appellant to be defaulter, struck off his defence and ordered his ejectment. The appellant filed first appeal which was heard by VIII Additional District Judge, Karachi who sustained the order of the Rent Controller and dismissed the appeal by his order dated 15th March, 1980 and hence the instant IInd Appeal.

9. Mr. Hyder Ali Pirzada, learned counsel for the appellant has raised the following contentions : (1) that application under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959wwhich was filed on 21st May, 1978 was misconceived and untenable inasmuch as at the time there had been no default whatsoever in the payment of rent. (2) That the tentative rent order passed by the Rent Controller on 4-1-1979 was issued ; firstly as arrears of rent to be deposited had not been determined by him as required under the provision of section 13(6) of Sind Urban Rent Restriction Ordinance, 1959 and secondly that the respondent had waived his right with regard to appellant depositing the future rent in the Court, by accepting the same directly from the appellant.

10. Mr."Khalid M. lshaq the learned counsel for the respondent had raised the preliminary objection that the instant IInd Appeal was presented on 19-4-1980 when the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) was in force and, therefore, the appeal is not maintain able. He has elaborated his contention by pointing out that section 27 of the Ordinance repealed the Sind Urban Rent Restriction Ordinance, 1959 and subsections (3) and (4) of section 27 which were added by the Sind Rented Premises (Amendment) Ordinance 11 of 1980, were given retrospective effect. Section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 which as the explanation of that section shows provided the second appeal, therefore stood repealed.

The preliminary objection however is misconceived. The application under section 13 of the Sind Urban Rent Restriction Order, 1:959 was filed on 21-5-1978 when second appeal was competent. The right of appeal is a vested right and accrues if it exists on the date of institution of proceedings and not at the date of its decision. The application with which the proceedings were started before the Controller was therefore a case before the Controller filed under the repealed Ordinance such as mentioned in subsection (2) of section 27 t of the Ordinance and had to be disposed of in accordance with the Sind

Urban Rent Restriction Ordinance, 1959.

There is nothing in the Ordinance which could be interpreted as taken away the right of second appeal which was available to the appellant at the time that the ejectment application was filed before the Rent Controller.

With regard to contention No. 1 raised on behalf the appellant it is the case of the appellant, banking company incorporated under the Companies Act, 1913, that SObrab Katrak Road Branch in Saddar is located in the premises and the appellant bad been and continues to be tenant in respect of ground floor of building known as Ameen Court situated at Plot No. 236/B Sohrab Katrak Road, Karachi on agreed monthly rent of Rs. 3,200 in terms of clause 3 of the lease agreement dated 30-10-1971. The appellant was required to pay to the respondent and Mr. Arshad Ameen on delivery of physical possession of the demised premises advance rent for five years, the advance rent being adjustable against monthly rent till full adjustment, thereof, whereafter rent was payable on monthly basis. Appellant paid advance rent for five years to Respondent and Mr. Arshad Ameen upto 31-P-1987 and thereafter started paying rent on monthly basis as under clause 4 of the Agreement tenancy was extended for further five years. When in May, 1978 respondent filed application under section 13 of the Ordinance, 1959, appel lant had been paying rent in the account of the Respondent from the August, 1977 till June, 1978 as stated in Written Statement filed on 6-8-1 78. Reliance is also placed on the statement of Rent Account filed on 11-10-1978 which shows that rent for May, 1978 had been paid at Rs. 3,300 by pay slip No. 093535, dated 6-5-1978.

Although the same statement shows that by pay slip dated 15-3-1.978 rent for August to December, 1977 amounting to Rs. 15,800 and by pay slip of same date rent for January to March, 1978 amounting to Rs. 9,900 had been paid thereafter rent for each month from April, 1978 to October, 1978 had been paid at the rate of Rs. 3,300. The statement of account as already observed above does not disclose regular monthly payments of rent and the pay slip photostat copies of which were produced do not show the dates of deposits in the account of the respondent. The appellant in the W. S. filed as opponent in para. 2 made the assertion that the respondent had altered the condition in clause 3 of the lease agreement by converting the tenancy from monthly to yearly basis but the same is not borne out by the statement of account filed by Appellant before the Rent Controller. It is also observed that the application under section 13 of the Sind Urban Rent Restriction Ordinance also mentioned the ground that the landlord required the premises for his own bona fide personal use for business. The contention that the application was not maintainable cannot therefore be accepted.

With regard to contention No. 2, the impugned order striking off the defence of appellant has been assailed firstly that it was not a legal and proper order as it was not passed in strict compliance of the provisions section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959.

The aforesaid provision reads as under :-

"13(6). In proceedings under this section on the first date of hearing or as soon as possible after that and before issues were framed the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the Petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put in possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct the same to be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."

The tentative rent order reproduced earlier above has left the amount of arrears to be determined after verification of the amount that may have been deposited in his account by the appellant. Although there are indications a to verification of account and then arriving at the correct amount it can hardly be considered as approximate determination of the same as envisaged in the provision of law referred to above. The learned counsel for the appellant has relied on the decision of the Karachi Bench of the erstwhile West Pakistan High Court in Syed Ahsan All v. Jaffar All and 4 others (P L D 1964 Kar. 418) in which it was inter alla observed that if the order in respect of arrears and future rent are not passed in conformity with provisions of law tenant could not be held liable to eviction for not complying with such defective order. Reference has also been made to a recent decision of this Court in Muhammad Aslam v. Muhammad Umar and another (P L D 1982 Kar. 107) in which the Controller instead of specifying the amount to be deposited allowed deduction by the appellant of the amount which was deposited by him in Court. It was held that the direction of ascertaining the amount deposited and deducting the same from amount held to be due was a departure from the provisions of section 13 (6) as in effect the calculation and determination of the amount of rent due was left to-the appellant.

The learned counsel for the appellant has also referred to decision of this Court in Muhammad Ismail v. Haft Muhammad & Sons (P L D 1978 Kar. 926) in which it was observed that failure by tenant to comply with direction by Controller should be interpreted as directory and not mandatory.

With regard to the contention that since the respondent had accepted rent at rate of Rs. 3,300 outside the Court direct from the appellant it con stituted 'waiver' on his part of the order passed by the Court with regard to deposit of rent in Court, the learned counsel for the respondent, has referred to the. meaning of the word as given in Ballentine's Law Dictionary (Third Edition) at para. 1356, as "the intentional relinquishment of a known right, claim or privilege. A voluntary and intentional relinquishment of a known

and existing right or such conduct as warrants an inference of relinquishment of such rights".

Since the respondent knew about the tentative order his acceptance of the rent direct and at higher rate would imply his giving up the right to compel enforcement of the order. In the Affidavit filed by Mr. Hitiul Bari Branch Manager of the appellant it is stated that respondent requested the appellant not to deposit future rent in Court but to give him the same outside the Court as otherwise he would face difficulty in withdrawing the rent and further that the respondent had ulterior motives for such request and, therefore, filed application for striking off defence of the appellant.

The matter as to the truth of the allegations is one of facts which cannot be considered at the stage of second appeal. However it is also apparent that such allegations were stated in the objections on behalf of the appellant. A perusal of the provisions of section 13(6) of the Sind Urban Rent Restric tion Ordinance, 1959 would show that order provisionally fixing rent is merely an interim order and Rent Controller has to finally determine rent. The eviction of the tenant by striking off his defence does not amount to determining of rent. In a decision of the Supreme Court Syed Akhlaque Hussain v. Habib Ismail Bajwa (1974 S C M R 504) it was observed as under :-

"It is evident that the order provisionally fixing rent in the event of a dispute about the rate and its deposit is an interim or interlocutory order. Under the second part of the section, the statutory duty is cast on the Rent Controller to finally determine the rent and until this act is performed the proceeding does not legally conclude."

It was further observed as under

"This is really what this Court said in Abdul Ghafoor v. Ahmad Kureshi. We are, therefore, unable to accept the contention advanced on behalf of the Respondent that the Legislature regarded the passing of the order of eviction as the last or ultimate act of the Rent Controller which put an end to the proceeding for eviction under section 13 of the Ordinance and the Rent Controller therefore was precluded from finally determining the rent as required under the Ordinance."

An opportunity had to be given to the parties to be heard and to lead evidence. As already observed for the purpose of arriving at a decision whether there was waiver on the part of respondent in accepting the rent outside the Court G also it was necessary to allow the parties to be heard and if necessary to adduce evidence.

In the decision of the Lahore High Court in Shaikh Maqbool Ahmad v, Muhammad Akbar Ali (P L D 1978 Lah. 258) after discussing the connotation of default and compliance' it was observed that whether tender of due amount of rent before specified date to the landlord instead of depositing same with Rent Controller amounted to compliance with an order under section 13(6) would depend upon circumstances of each case.

In the light of the above discussion the appeal is allowed, both the impugned orders are set aside and the case is remanded to the learned Rent Controller for further proceedings in accordance with law. There shall be no order as to the costs.

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