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‑‑ S. 13 (6) ‑ Reopening of question of adjustment of security deposit‑Rent Controller declining to give adjustment of security deposit and passing tentative rent order‑Tenant's appeal against order allowed but High Court in second appeal restoring Rent Controller's order ‑ Tenant never complying with order ‑ Rent Controller on landlady's application striking off tenant's defence 4.;>' and directing him to hand over possession of suit shop ‑ Rent Controller, held, while considering application not bound to reopen question of adjustment of security deposit already declined when passing tentative rent order and after dismissal of second appeal, ask tenant bound to comply with tentative rent order within reasonable time‑While considering application for ‑taking off defence, tenant's failure to comply with tentative rent order being sole question for determination, Rent Controller cannot reopen question of adjustment of security deposit particularly when order upheld by High Court in second appeal,

Muhammad Yousuf v. Abdullah P L D 1980 S C 298 ; 1kramuddin v. Syed Mehboob P L D 1978 Kar. 145 and Shaikh Bashir Ahmad v. Nisar Ahmad and another P L D 1980 Lah. 302 distinguished.

Haji Fazal Karim v. Additional District .fudge, Lahore P L D 1982 S C 306 ref.

Ahmad Said Qureshi for Appellant.

Aziz Urfi for Respondent.

Dates of hearing : 6th and 7th October, 1982.

This is a second appeal against the. judgments dated 3rd May, 1981 and dated 18th August,1976 passed by the learned 11 Additional District Judge, Karachi and the learned First Rent Controller. Karachi, res pectively in Rent Appeal No. 395/76 and Rent Case No. 243/68, respectively. The brief facts leading to the filing of the above appeal are that the Respondent filed above rent case on the ground of default. The learned Rent Controller in terms of section 13(6) of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance), passed the tentative rent order on 1st May, 1968 as follows :‑

l ‑5‑68.

Heard learned Advocates of the parties. The tenancy is admitted. The rate of Rs. 350 p. m. is admitted. It is also admitted that from 9th June, 1967 the rents are not paid. The only objection raised by the learned counsel of the opponent is that they had already deposited Rs. 1,500 and Rs. 3,000 with the applicant, and that there was an agreement between the parties that this amount would be adjusted towards the rent.

The learned counsel of the applicant admits the deposit of Rs. 1,500 not adjusted towards the rent but denies the receipt of Rs. 3,000. These two points at dispute would be looked into and decided during the trial of the issues. Presently I hereby direct the opponent to deposit arrears of rent from 9th June, 1967. to 8th May, 1968 at Rs. 350 p. m. amounting to Rs. 3,850 before 29th of May, 1968. The opponent is further directed to deposit future monthly rent at the rate of Rs. 350 before 15th of each succeeding month. Now put off to 11th July, 1968 for Issues.

(Sd.) R. C. Karachi..

1‑5‑1968."

2. It seems that against the above tentative rent order the appellant filed Rent Appeal No. 243/68, which was allowed by a judgment dated 24th August, 1968 by the learned Additional District Judge, Karachi. The respondent being aggrieved with the above order filed Second Appeal No. 400/1968. It seems that in the above II Appeal, the stay was granted under the order dated 22nd December, 1969 on the condition that the appellant shall deposit Rs. 2,500 within 15 days instead of Rs. 3,850 as was ordered by the learned Rent Controller in his above‑quoted tentative rent order. It further seems that the above Second Appeal No. 400/68 was dismissed by a judgment dated 20th November, 1973. )t may be pertinent to quote hereinbelow the operative portion of the above judgment :‑

" I proceed to decide the matter on merits. As I have observed earlier, a short question of adjustability of Rs. 4,500 against the arrears of rent is left open by the learned Rent Controller which has yet to be decided by him and section 7 of the Urban Rent Restriction Ordinance, 1959 has no applicability in this case.

(5) For reasons given above, I accept this appeal and set aside the impugned judgment of Additional District Judge dated 24th August, 1968 'and remand the case to Rent Controller to proceed with the same according to law after giving full opportunity to the parties to adduce evidence. As the respondent remained un-represented I make no order as to costs."

3. It also seems that in spite of the dismissal of the above second appeal, the appellant failed and neglected to deposit the balance of Rs. 3.850 after adjusting the above sum of Rs. 2,500 deposited in terms of the aforesaid High Court order dated 22nd December, 1969 on the basis of which stay was granted. Thereupon, the respondent filed an applica tion dated 27th February, 1976 under section 13(6) of the Ordinance for striking off appellant's defence to which the present appellant filed objections which were replied to through a counter‑affidavit of the respondent's husband. However, the learned Rent Controller by his aforesaid judgment dated 18th August, 1976 allowed the respondent's above application and ordered the striking off appellant's defence and directed him to hand over the vacant possession of the suit shop within one month. The appellant being aggrieved by the above judgment filed Rent Appeal No. 395/76, which was dismissed by the learned II Additional District Judge by his aforesaid judgment dated 3rd May, 1981. The appellant being aggrieved by the above two judgments has filed this second appeal.

4(a). In support of the above appeal Mr. Ahmed Saeed Qureshi, learned counsel for the appellant has contended as follows :‑

(i) That the appellant was under a bona fide belief that the aforesaid tentative rent order dated 1st May. 1968 was substituted by High Court's aforesaid order dated 22nd December, 1969 and, therefore, both the Courts below erred in ordering the striking off defence as there was sufficient explanation for non‑compliance.

(ii) That in any case factually nothing was due to the respondent at the time of passing of the order for striking off defence.

(b) (i) On the other band it has been contended by Mr, Urfi, learned counsel for the respondent that since the Second Appeal No. 400168 was dismissed by the High Court through judgment dated 20th November, 1973 and, thereby, restored the aforesaid Rent Controller's tentative rent order dated 1st May, 1968 the appellant should have. deposited the balance Rs. 3,850 within reasonable time.

(ii) It has been further contended by him that the learned Rent Controller while passing tentative rent order declined to give adjustment to the security of Rs. 1,500 and that this question could not have been re‑agitated at the time of hearing of application for striking off appellant's defence.

5. As regards the above first contention of the learned counsel for the appellant, Mr. Saeed Qureshi, it will suffice to observe that the interim order dated 22nd December. 1969 passed by the High Court in 11 Appeal No. 400/68 referred to hereinabove was not an order in substitution of the Rent Controller's aforesaid tentative rent order dated 1st May, 1968. The above second appeal was in fact related to the above tentative rent order: The above interim order dated 22nd December, 1969 passed by the High Court was to operate during the pendency of the above 11 Appeal No. 400/68, with the result that upon allowing of the respondent's appeal, the judgment of the learned Additional District Judge dated 24th August, 1968 was set aside and the learned Rent Controller's tentative rent order dated 1st May, 1968 was restored and, therefore, the appellant was obliged to comply with the above tentative rent order within reasonable time after the disposal of the aforesaid II Appeal No. 400/68 by the High Court. It is an admitted position that till today the appellant has not deposited the balance of Rs. 3,850 namely, Rs. 1,350 after adjusting the above sum of Rs. 2,500. I am, therefore, inclined to concur with the concurrent findings of the two Courts below that the appellant has noun complied with the aforesaid tentative rent order. Nor he has shown a reason beyond his control for non‑compliance of the above order.

6(a). Reverting to the second contention of Mr. Saeed Qureshi that in any case nothing was due at the time of the passing of the order for striking off appellant's defence, it may be observed that in support of his above‑contention he has submitted that since it is an admitted position that a sum of Rs. 1,500 as a security deposit was lying with the respondent, the above balance of Rs. 1,350 could have been adjusted against the above security deposit. It has been further submitted by him that the tenancy agreement was for a fixed period under which the above security deposit was made which bad expired and, therefore, upon the expiry of the above tenancy period, the respondent had no legal right to withhold the security deposit. In support of his above contention, he has referred to the case of Muhammad Yousuf v. Abdullah (P L D 1980 S C 298). He has further referred to the case of 1kramuddin v. Syed Mehboab (P L D 1978 Kar. 145) and the case of Shaikh Bashir Ahmad v. Nisar Ahmad and another (P L D 1980 Lah. 302).

(b) On the other band Mr. Urfi. learned counsel for the respondent has urged that no plea to the effect that the security deposit should have been adjusted was raised before the learned Rent Controller or before the First Appellate Court at the time of hearing of application for striking off defence. He has further submitted that the scope of inquiry under section 13(6) of the Ordinance was to . see; whether there was a reason beyond the control of the tenant which prevented him from non‑compliance with the tentative rent order.

(c) I have perused the appellant's objections filed by him to the respondent's application under section 13(6) but I do not find any plea to the effect that the learned Rent Controller was bound to reopen the question of adjustment of Rs. 1,500 being the security deposit in respect of which he declined to give adjustment at the time of passing of the tentative rent order. Be, that as it may, in my view since the above . tentative rent order dated 1st May, 1968 was restored by the High Court through its judgment dated 20th November, 1973 passed in the aforesaid Second Appeal No. 400/68, the appellant was obliged to comply with the above tentative rent order within reasonable time from the date of the above High Court judgment.

(i) As regards Supreme Court case reported in P L D 1980 S C 298, it will suffice .to observe that in the above case it was held that upon the expiry of the period mentioned in the tenancy agreement, the tenant had become a statutory tenant and, therefore, the landlord was not entitled to retain the security deposit and that the amount of the security deposit was liable to be adjusted. In my view this case has no application to the instant case for more than one reason, firstly, that the above case had arisen against the final order of ejectment on the ground of default and not against a tentative rent order under section 13(6) of the Ordinance and, .secondly, .in the instant case the appellant has not produced either before the Rent Controller or before the First Appellate Court or before this Court, any tenancy agreement indicating the period of tenancy. Since the tenancy agreement is not on record, it cannot be concluded that initially tenancy was for a fixed period.

(ii) Reverting to the case reported in P L D 1978 Kar. 145, it may be observed in the above case the High Court allowed a second appeal and remanded the case to the learned Rent Controller with the direction to provide an opportunity to the tenant to produce evidence to prove that factually he had paid rent upto November, 1972 in respect of which the order for striking off defence was passed. The above case has also no application to the instant case. In the present case, the point in issue is as to whether the appellant was entitled in law to reopen question of adjustment of Rs. 1,500 being the amount of security deposit which was declined by the learned Rent Controller while passing the tentative rent order. It was not the case of the appellant that he had paid Rs. 1,350 after the passing of the above tentative rent order or after the passing of the High Court judgment in the aforesaid Second Appeal No. 400/68.

(iii) With reference to the case reported in P L D 1980 Lah. 302, it may be stated that in the above ease a learned Single Judge of the Lahore High Court while maintaining ‑the order of the First Appellate Court, whereby the order of the Rent Controller for ordering ejectment was set aside, observed that in passing an order under section 13(6) or while considering the question of default for non‑compliance of such order, the question of adjustment of security deposit is to be taken into account. It may be further stated that the above case is also distinguishable as in the instant case the tentative rent order was restored by the High Court in Second Appeal No. 400/68 and, therefore, the above tentative rent order was to be complied with by the appellant. In my opinion the learned Rent Controller or the First Appellate Court could not have reopened the question of adjustment of Rs. 1,500 against the tentative rent order.

7(a) It may be pertinent to quote hereinabelow section 13(6) of the Ordinance which reads as follows :‑

"Section 13.

(1) ---

(2) ---

(3) ---

(4) ‑‑-

(5) ‑--

(6) In proceedings under this section on the first date of hearing or as soon as possible after that and before issues are 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 into 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 that same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."

It may be noticed that under the abovequoted subsection there are two types of inquiries contemplated, namely, (i) a summary inquiry for determining the arrears of rent if any or the quantum of monthly rent while passing a tentative rent order ; (ii) an inquiry into the question as to whether the tenant has committed default in compliance with a tentative rent order.

(b) In the instant case the first inquiry was held while passing the above tentative rent order dated 1st May, 1968 the learned Rent Control ler as pointed out hereinabove declined to give adjustment of the amount p of security deposit of Rs. 1,500 while determining the amount of arrears of rent. This order as observed hereinabove was restored by the High Court in Second Appeal No. 400/68 by its judgment dated 20th November, 1973.

As regards the second inquiry envisaged by the abovequoted subsection, it may again be observed that the sole question for determina tion before a Rent Controller while considering an application for striking off defence can be, whether the tenant has failed to comply with the tentative rent order for a reason beyond his control. But the Rent Controll6r cannot reopen the question of adjustment of the amount of security deposit particularly in a case in which a tentative rent order has been upheld by the High Court in a Second Appeal. However, he is required to give a reasonable opportunity to a tenant to enable him either to prove that in fact he has complied with the tentative rent order or that the default committed was for a reason beyond his control.

8. Mr. Urfi has referred to the case of Haji Fazal Karim v. Additional District Judge, Lahore (P L D 1982 S C 306), in which a Division Bench of Honourable Supreme Court while dismissing a petition for leave to appeal made following observations :‑

"No doubt a tenant is entitled to an opportunity of showing cause before his defence is struck off ; as held in (Din Muhammad and another v. Umar Hayat and others (1981 S C M R 326) relied upon by the learned counsel, who has now raised a contention in this behalf ; but this exercise need not be done in a full‑fledged trial as if it were a regular matter being dealt with under the Civil Procedure Code (Municipal Committee, Gujranwala v. Barkat Bibi and S others (1979 S C M R 264) and (Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530). The requirement of the principle of natural justice will be satisfied if the tenant and/or his counsel is made aware of the proceedings or proposed action with regard to the striking off the defence: Once that is done, it is not necessary for Rent Controller to invite, ask or order the tenant to produce evidence. Normally the tenant, when he is made aware of the default with regard to the deposit under section 13(6), either takes the plea that be has made the deposits and he is granted a short time to produce the receipts. In such cases this would satisfy the requirement of justice regarding opportunity. If, on the other hand, his plea in other than that of deposit, he or his counsel makes the statement in this behalf immediately so as to avoid criticism on the basis of afterthought if he postpones explanation. And, once . he is afforded an opportunity to offer an explanation verbal pr in writing may be on the same day when the question whether proper deposit has been made or not arises, it would again satisfy the requirement of justice with regard to opportunity ; unless a genuine and honest request for a short adjournment is sought to produce some material in support of his explanation ; of course, other than that material which is available at the time when this question arises. If the request for adjournment in this behalf is intended to delay the proceedings and is vexatious the Rent Controller would be duty bound and also perfectly

justified to refuse the same; because one of the purposes of the relevant law is to expedite the disposal of cases brought thereunder. And, on the other hand, if the request merits acceptance, one or two short adjournments would normally be considered enough to decide the questions relatable to the deposit of rent and the striking off of the defence. It is necessary to emphasize that while doing so, there is no need to frame issues nor to record evidence m any formal manner. Examination of original documents and/or copies, as also the process of questioning the parties and/or their counsel normally proves not only helpful but conclusive in this behalf‑Purpose being "always not to incur avoidable delays."

The abovequoted passage from the above Supreme Court case indicates the scope of inquiry contemplated under section 13(6) of the Ordinance for deter mining the question of default in non‑compliance of a tentative rent order. In the instant case it is not the case of the appellant that he was not given a reasonable opportunity to produce evidence to prove that he had complied with the tentative rent order. Factually the appellant. was given sufficient opportunity to meet the respondent's application under section 13(6).

9. The upshot of the above discussion is that the appeal is dismissed with no orders as to costs. However, the appellant is granted four months time from today to hand over the vacant possession of the shop to the respondent

K. M. A. Appeal dismissed.

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