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‑‑‑S. 13(6)‑‑Sind Rented Premises Ordinance (XVII of 1979), S.16(1) t (2)‑‑Comparison of provisions of two Ordinances‑‑Section 13(6) of Ordinance VI of 1959 was similar to S. 16(1) of Ordinance XVII of .979, except that S. 13(6) of Ordinance 1959 contained provisions of S. 16(2) of Ordinance, 1979 as well.

Muhammad Aslam v. Muhammad Umer P L D 1982 Kar. 107 and United Bank Limited v. Aijaz Amin 1983 C L C 530 ref.

‑‑S. 16(1)‑‑Deposit of rent‑‑Order of‑‑Legality‑‑Order of Rent Controller, that rent be deposited on or before 10th of every month, held, was absolutely legal‑‑Tenant committing default of such order, would be liable to be ejected.

Ali Jan v. Shujauddin P L D 1985 Kar. 698; Akhtar Hussain v. Muhammad Hussain 1982 C L C 702; Muhammad Amin v. Mst. Zubaida 1985 C L C 3018 and Muhammad Yousuf v. Maqbool Ahmed 1985 C L C 2862 ref.

‑‑S. 16(1)‑‑Deposit of rent by son‑‑Effect‑‑Tenant's son depositing rent on behalf of father and even landlord in Knowledge of such fact, held, would absolve tenant of default in payment of rent‑‑Order of striking off defence of tenant was not justified and case was sent back to Rent Controller to decide same on merit.

Shabbir Ahmad Shaikh for Appellant.

Masood Shaheryar for Respondent.

Date of hearing: 27th October, 1985.

This First Rent Appeal is filed against the order of the learned Senior Civil Judge and Rent Controller, Karachi, dated 22nd March, 1983, whereby he struck off the defence of the appellant under section 16 (2) of the Sind Rented Premises Ordinance, 1979, for non‑compliance of the order of the Court under section 16 (1) of the Ordinance directing him to deposit arrears of rent and future rent, and further ordered the appellant to hand over possession to the respondent within two months.

2. On the application of the respondent (landlord) under section 16 (1) of the Sind Rented Premises Ordinance, 1979, the learned Rent Controller, vide his order dated 26‑11‑1981, directed the appellant to deposit arrears of rent as well as the future rent. As this order is attacked by the learned counsel for the appellant as illegal, the relevant portions of the order are reproduced as under:‑

"(i) It‑ is only contended that rent upto August, 1980 has been paid to the applicant's rent collector and after that rent is being deposited in Misc. Case No. 5403 of 1980. The opponent has not produced any proof of the deposits made by him. The opponent has also not produced proof of payment of rent for the month of August, 1980, to the rent collector of the applicant. Accordingly, the opponent is directed to deposit in this case the arrears of rent from July, 1980 to August, 1981, i.e. for 14 months amounting to Rs .6, 640 within 2 months of this order.

However, the opponent is allowed adjustment of the amount deposited by him in the Misc. Case towards arrears of rent ordered above.

(ii) The opponent is further directed that monthly future rent should be deposited before 10th of each succeeding month i.e. the rent for the month of September, 1981, be deposited on or before 10th October, 1981 at the same rate of rent and so in future till final disposal of the case."

3. It will be noted, that this order in fact contains two separate orders for the sake of convenience, both orders have been produced above in separate paras and numbered as (i) and (ii).

4. The first portion of the order relates to the arrears of rent. It is contended by the learned counsel for the appellant, that this order is not in conformity with the provisions of section 16 (1) of the Ordinance and as such are illegal and their non‑compliance does not make the appellant liable to be ejected. He further submitted, that the provisions of section 16 (1) and (2) being penal in nature, they should strictly construed. This view appears to be have been consistently in a number of cases by the High Court.

Section 16 (1) of the Ordinance reads as follows: ‑

"Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case."

6. These provisions are similar to the provisions of section 13 (6)1 of the Sind Restriction Ordinance, 1959, except that subsection (6) of section 13 of the later Ordinance contain the provisions of subsection

(2) of section 16 of the said Ordinance of 1979 also.

7. Amongst the cases cited by the learned counsel for the appellant, I may first refer to the case of Mohammad Aslam v. Mohammad Umer reported in P L D 1982 Kar. 107, where Mr. Justice Saleem Akhtar, has observed as follows:‑

"If the Controller has passed any order which does not determine the amount approximately and is vague leaving calculation to the parties or to any other person then it will not be an order strictly in non‑compliance with the provisions of section 13 (6)."

It is submitted by the learned counsel for the appellant, that the order of the Rent Controller in the instant case directing deposit of arrears of rent does not determine the amount of arrears of rent, but leaves it to the appellant to calculate and adjust the amount, which he has deposited in Court in Misc. Case No. 503 of 1980.

9. The view taken by Mr. Justice Saleem Akhtar has been followed by Mr. Justice B.G.N Kazi in the case of United Bank Limited v. Aijaz Amin, reported in 1983 C L C 530, wherein learned Judges observed as follows:‑

"The tentative rent order produced earlier above has left the amount of arrears to be determined after verification of the amount that may have been deposited in his accounts by the appellant, although there are indications as to the verification of accounts, and then arriving at correct amount, it can hardly be considered as approximate determination of the same envisaged in the provisions of law referred above."

10. This view has been upheld in case of Ali Jan v. Shujauddin reported in P L D 1985 Kar. 698, decided by a Division Bench of this Court comprising Mr. Justice Naimuddin and Mr. Justice Zahurul Haq. Their Lordships held as follows:‑

"The Controller is required to direct the tenant to deposit all the rents due from him and also to deposit regularly till the final decision of the case before fifteenth of each month the monthly rent due from him and if there is any dispute about the amount of rent due or the rate of rent the Controller is required to determine such amount approximately and direct the same to be deposited by the tenant before a date to be fixed for that purpose. The Controller is required to determine the amount of rent due and, if he leaves the determination of the amount of rent due to the tenant he does not comply with the provisions thereof. Therefore so far as the order as to the deposit of arrears of rent passed in the present case is concerned it was, in our opinion not in accordance with the law. Such an order would be illegal and non‑compliance thereof would not entail the consequences of eviction of the tenant from the rented premises.

The Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us, but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all, that his order as a whole would be illegal. It is not disputed, that the Controller had jurisdiction to pass the second direction as to deposit of future rent as contained in the order dated 23‑9‑1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though that may be contained in one order."

11. Relying on this judgment, the learned counsel for the respondent submitted, that even if the first part of the order of learned Rent Controller may not be considered to be strictly in accordance with relevant provision of law, at least the second part of the order relating to deposit of future rent was legal and its non‑compliance should result in eviction of the appellant. Mr. Shabbir Ahmed Shaikh, learned counsel for the appellant, argued, that even this part of order was also not legal as the learned Rent Controller has used the words "before tenth of each succeeding month", whereas under the law the rent is to be deposited on or before the tenth of each succeeding month. He contends, that by this order the learned Rent Controller has deprived the appellant of his right to deposit rent on the tenth of the month. The order which has been reproduced above, does not leave any' such doubt. The learned Rent Controller has made it very clear "that the rent of the month of September, 1981, be deposited on or before 10th October, 1981 and so on in future." Though he has used word before tenth in the certain portion of order still he has made it very clear in the B subsequent portion of this order, that the rent could be deposited even on 10th of each month. Therefore, there can be no doubt, that this order of the learned Rent Controller is absolutely legal and if the appellant has committed any default in compliance with this order, he will be liable to be ejected.

12. It is submitted by Mr. Shabbir Ahmed Shaikh, that appellant has committed no default, as he has been depositing rent regularly in the name of the respondent in the Misc. Rent Case No. 5403 of 1980. This plea was also raised before the learned Rent Controller, who in his impugned order, has rejected this plea on two grounds. Firstly, that the rent was not deposited in the rent case in which the order for deposit of rent was passed, but in some other Misc. Case, and secondly, that the person, who has been depositing this rent, is not the appellant, but one Viqar Ahmed, who is said to be son of appellant. It was further submitted by Mr. Shabbir Ahmed that if the respondent had withdrawn this rent, it would have created a new tenancy between Viqar Ahmed and the respondent. The appellant's counsel submitted, that the appellant continued to deposit rent in Misc. Rent Case, because the order directing him to deposit rent was passed on the date, when he and his Counsel were admittedly not present and that he was not informed by his counsel about this order. He further submitted, that in 1980, the appellant had gone to India and in his absence, the respondent refused to accept the rent from his son, and therefore, his son filed Misc. Rent Case No.5403 of 1986 seeking the permission of Court to deposit rent. The appellant also produced certified copy of this application in Misc. Rent Case No.5403 of 1980 alongwith his memo. of appeal. In this application it is very clear, that as the appellant was on the visit to India, Viqar Ahmed, his son, sought the permission of the learned Rent Controller to deposit rent at the rate of Rs.475 per month in respect of the demised premises.

13. The rate of the rent is not disputed and so also the fact, that the amount was deposited regularly in Misc. Rent Case No.5403 of 1980. The contention of the learned counsel for the appellant, that new tenancy would have been created also stands repelled by this very application, where Viqar Ahmed had made it very clear, that fie was depositing rent on behalf of his father, the appellant. It leaves us with the question whether this deposit of rent in Misc. Rent Case No.5403 of 1980 amount to disobedience and non‑compliance of the Order of the learned Rent Controller passed in the Misc. Rent Case No.5374 of 1981. This point was dealt with by Mr. Justice Naimuddin in the case of Akhtar Hussain v. Mohammad Hussain reported in 1982 C.L.C. 702. His Lordships has held as follows

"If the appellant has deposited rent by mistake or erroneously in other proceedings between the same parties with intention to deposit the same in rent proceedings in which the order of deposit of the rent was passed that would not amount to wilful default in compliance of each order."

In the above case, also the tenant had deposited rent in Misc. Application and not in the rent application in which the order was passed. In the case of Mohammad Amin v. Mst. Zubaida reported in 1985 C L C 3018, Mr. Justice Saleem Akhtar has dealt with the similar problem. His Lordship was observed as foilows:‑

"The only difficulty faced by the appellant is, that after the order, dated 1‑4‑1982 was passed instead of depositing the rent in the ejectment case as usual he deposited in Misc. Rent Case No.4384 of 1975. Therefore, if this technical objection is allowed to be taken there is surely default as appellant has not deposited rent in the ejectment case. I am riot inclined to strike off the defence on such highly technical objection, that the rent though purported to be for the same period between the same parties has been deposited in another proceedings between the same parties in the same Court."

14. The same learned .Judge has followed this view in the case of Mohammad Yousuf v. Maqbool Ahmed reported in 1985 C L C 2862. His Lordship has observed as follows:‑

"No doubt there was a direction by the learned Controller to deposit the rent in the ejectment case, but the respondent seems to have either misunderstood or overlooked this aspect of the order, and continued to deposit rent in the Misc. Rent Case. The appellant was aware of the pendency of the Misc. Rent Case in which the arrears had been deposited and the learned Controller had given adjustment of the arrears deposited in that the respondent is, that the moment he came to know the objection raised by the appellant, he started depositing the rent in the ejectment case. Therefore, the only objection that can be taken is, that instead of depositing the rent in the Misc. Rent Case. There is no grievance that the rent has not at all been deposited, any where or it has been deposited in some new proceedings, unknown to the appellant. The respondent seems to have explained the matter sufficiently to show his bona fides, and therefore, the technical default ground for striking off the defence. The respondent has continuously been depositing rent in Court, and unless a contumacious conduct or bad faith is pointed out it is not sufficient merely on such technical defaults, which in my opinion has sufficiently been explained, to strike off the defence."

15. I am in respectful agreement with views of Mr. Justice Saleem Akhtar, expressed above. The facts of the instant case are absolutely similar except that in Misc. Application, the appellant is not applicant but his son is the applicant, who has been depositing rent. It is made very clear in the application, that he was depositing rent on behalf of his father and even the respondents/ landlord were aware of the fact. The learned Rent Controller has also allowed the appellant to adjust the amount deposited by him in the Misc. Rent Application.

16. The appeal is, therefore, allowed. The impugned order is set aside and the case is remanded back to the learned Rent Controller to dispose of it on merits.

Original judicial district of Karachi has now been divided in three judicial districts. The office may find out as to what district the instant case partains. The case may be sent to the District Judge concerned for transmitting it to the Senior Civil Judge and Rent Controller for disposal.

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