Find a Lawyer

First Rent Appeal No. 443 of 1980, decided on 18th May, 1982.

‑‑‑S. 13 (6)‑Sind Rented Premises Ordinance (XVII of 1979), S. 21-Tentative rent order‑Illegality of‑Landlady filing appli cation for ejectment of tenant on ground of default‑Tenant denying default‑‑Rent Controller passing tentative rent order under S. 13 (6)‑Rent Controller striking off tenant's defence on landlady's application under S. 13 (6)‑Tenant challenging in appeal order of striking off defence on ground of illegality of tentative rent order‑Held, order under S. 13 (6) directing tenant to deposit arrears of rent due can be attacked for first time in appeal and appellate authority competent to examine legality and correctness of order.

Jiando Khan v. Hakim Muhammad Ishague P L D 1964 (W. P.1 Kar. .61 ref.

Mujtaba Shah for Appellant.

Khudabux Umrani for Respondent.

Date of hearing : 27th April, 1982.

This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) and is directed against the order dated 4th May, 1980 passed by the First Rent Controller s, karachi striking, off the defence of the appellant for non‑compliance of the tentative tent order dated 13ih M0, J q78 Under section 1 3 (6) of the Sind Urban Rent Restriction Ordinance, 1959:

The respondent who is owner and landlady of buildings do polo No. 372‑C situated in Block No. 2, P. E. C. H. S., Karachi filed application dated 26th October, 1977 before the First Rent Controller, Karachi for ejectment of the appellant who is tenant of flat No. 2 of the building on the ground of default in the payment of rent of Rs. 250 p.m. for 17 months from May, 1976 to September, 1977 amounting to Rs. 4,250.

The appellant filed Written statement do 26th November. 1977 admitting the tenancy and the monthly rent payable but decrying that he had a committed default id payment of rent arid stating that he had paid the) fern upon the month of October, 1977 but the respondent had riot issued receipts regularly as she had been issuing printed 'receipts acid sometimes receipts do plain paper and on few occasions had deliberately avoided id issue receipts in spite of repeated requests it Was further his case iii the written statement that the respondent had refused to accept rent for the month of November, 1977 which therefore was remitted by money order, but the same was refused as the respondent wanted to eject the appellant so that she could rent out the premises on enhanced rent. The appellant therefore started depositing rent in Miscellaneous Rent Case No. 4043 of 1977 with effect from November, 1977 to 30th April 1978. It was the case of the appellant that he deposited rent for April, 1978 on 15th April, 1978.

On 13th May, 1978 the Rent Controller passed the tentative rent order under section 13

(6) of the Sind Urban Rent Restriction Ordinance, 1959 which reads as under

"The Applicant's Advocate Mr. Umrani claims rent w.e.f. from May, 1976 at Rs. 250 p.m. The rate of rent is not disputed. The opponent's Advocate states that rent from October, 1977 has been deposited in Court in Miscellaneous R.C. No. 4043/77 at Rs. 250 p.m. Mr. Umrani states that he has not brought counterfoils or rent receipt copies. He has not produced any counterfoil. Hence I hold that rent is payable w.e.f. October. 1977 at Rs. 250 p.m. the rent deposited by opponent in. Miscellaneous. Application is deemed to be deposit in this case. Therefore opponent is directed to deposit rent at Rs. 250 p.m. w.e.f. April, 1978 before 15th of each subsequent month till disposal of case."

On 10th January, 1979 the respondent filed application under section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959 praying that as the appellant had not deposited rent in accordance with the dated 13th May, 1978 his defence be struck off. The learned Rent Controller, after giving notice to the appellant and hearing the Advocates of the parties, and after perusal of the report of the Nazir about the rent deposited, in the impugned order found that there were repeated defaults made in payment of rents which the appellant had failed to explain and therefore he passed the impugned order.

The impugned order is assailed on the following main grounds :‑

(1) That the tentative rent order, failure‑ to comply with which has resulted in the passing of the impugned order, is itself illegal,

(2) That the learned Rent Controller failed to consider or misread the evidence produced before him to show that rent for the month of April had been deposited on 14th April, 1978 even before the passing of the tentative rent order.

(3) That the learned Rent Controller overlooked the fact that rent for each month was being deposited in advance during that very month, though he had directed that the same be deposited before the 15th of the subsequent month.

(4) That the impugned order being based on the order dated 13th May, 1977 which was without jurisdiction is itself illegal.

With regard to grounds Nos. 1 and 2, Mr. Mujtaba Shah, the learned counsel for the appellant, has pointed out that, although in the tentative order it is stated that the opponent's Advocate had stated that rent for October, 1977 had been deposited in Court in actual fact the aforesaid Advocate had stated that rent from November, 1977 had been so deposited. Again, since the rent deposited in Court under the Miscellanous Applica tion was deemed to be deposited in the case and further since the rent for April, 1978 had already been so deposited, the order should not have mentioned that the appellant should deposit rent with effect from April, 1978. He has further contended that the learned Rent Controller when passing the tentative rent order should not have directed deposit of current months before 15th of each subsequent month as in fact the very applica tion for ejectment under section 13 of the Sind Urban Rent Restriction Ordinance, 1959 in para 2 thereof mentioned that the rent was payable in advance. He has therefore further contended that the finding with regard to default in the payment of rent for the months in question has been wrongly arrived at on the assumption that the rent deposited Was for previous month instead of the current month.

It is by now well‑settled legal position that order under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959 directing deposit of arrears of rent due can be attacked for the first time in appeal and the appellate authority is competent in examine the legality and correctness o the order. In Jiando Khan v: Hakim Muhammad Ishaque (1), a decision o the Karachi Bench of the erstwhile High Court of West Pakistan it was observed by Anwarul Haq; J. (as he then was) as under

"It is correct that the appellant did not appeal against the order of the Rent Controller fixing the amount of arrears due from him at Rs. 720, yet applying the principle embodied in section 105 of the Code of Civil Procedure it is clear that where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case, may be set forth as a ground for objection in the memorandum of appeal. In the case before me, the incorrect fixation of rent due has led to serious consequences for the appellant, resulting in an ex parte order being passed against him for his ejectment from the shop in dispute. The incorrect order of the Rent Controller on the question of amount of rent due has therefore affected the final decision of the case, and for that reason, I think the question can be agitated in the present appeal."

A perusal of the record of the learned Rent Controller would show that the Advocate for the opponent (the appellant herein) had made a statement (1) P L D 1964 (W.P.) Kar. 61

in writing on the subject of rent account dated 18th March, 1978 to the effect that rent paid in Miscellaneous Rent Application 4043 of 1977 was upto March, 1978. It would therefore appear that the learned Rent Con troller considered it fit and proper in the tentative rent order to direct pay ment of arrears of rent with effect from 1st April, 1978, but as the aforesaid record further reveals, in the objections against the application for striking off the defence it had been made very clear that after the time of submitting the rent account application on 18th March, 1978 the opponent had already deposited with the Nazir the amount of rent for April, 1978 as well. It was therefore made very clear that the rent for the month of April having already been deposited before the date of the order namely 13th May. 1978 the rent order should have been for deposit from May, 1978 onwards. It is also apparent from a perusal of the record that the opponent's Advocate had in the very written statement taken the plea that the rent upto the month of October, 1977 had been duly paid to the landlady, but since she had refused to accept rent for the month of November, 1977 therefore the rent was sent through money order and because of the refusal to accept the money order, the same was deposited in Court under Miscellaneous Applica tion. It is therefore quite obvious that in the tentative rent order the learned Rent Controller had wrongly stated that the opponent's Advocate had stated that rent from October, 1977 had been deposited in Court.

With regard to ground No. 3, it was the plea of the landlady in the main application for ejectment that rent was payable in advance and there fore all the statements made by the counsel of the parties with regard to payment of rent for a particular month should have been understood as payment in the same month. Although in the report of the Nazir with regard to amounts deposited only the dates of the deposits were mentioned, the rent deposited should have been considered for the month of deposit ordinarily at last prior to the passing of the tentative rent order. On behalf of the appellant, the explanation about the amounts of rent deposited, as it appears in para 6 of the Memo of Appeal shows that since the rent of the month was being deposited in advance there was no default committed in respect of the payments for any of the months from April, 1978 to March, 1979. The impugned order striking off the defence of the appellant therefore cannot be sustained and consequently the appeal is allowed, and the order is set aside. The main application for ejectment should be tried by the Rent Controller concerned, after passing correct tentative rent order. In the circumstances of the case however no order as to costs is being passed.

K.M.A. Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.