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First Rent Appeal No.1136 of 1982, decided on 16th April, 1987.

---S.16(1)--Tentative rent order--Jurisdiction of Rent Controller--- Rent Controller is empowered under S.16(1) to determine arrears of rent of premises in dispute and to make order for deposit of such arrears and future monthly rent within specified period--Direction given to tenant by Rent Controller for deposit of future monthly rent is within the jurisdiction of Rent Controller even if no order for deposit of arrears of rent was passed by Rent Controller against tenant in view of fact that no arrears were due towards tenant as he had already deposited rent in advance.

P L D 1969 Kar. 176; 1975 S C M R 261; 1982 C L C 702; 1983 S C M R 773; 1985 C L C 2862; 1984 C L C 3102 and 1986 CLC90ref.

---Ss.16(1) (2) & 21(1)--Tentative rent order--Non-compliance of- Striking off defence--Future monthly rent of premises in dispute directed to be deposited in Court of Rent Controller seized of rent case, by misunderstanding was deposited by tenant in miscellaneous rent case between same parties--Directions of Rent Controller had not been intentionally disobeyed by tenant--Appellate Court accepting appeal of tenant set aside order of striking off defence passed against him by Rent Controller and remanded case for deciding on merits.

Akhtar Hussain v. Kabeer Hussain 1982 C L C 702; Major (Retd.) AS.K. Saman v. Lt.-Col. (Retd.) A.Hussain and another 1983 S C M R 773; Muhammad Yousuf v. Maqbool Ahmed 1985 C L C 2862; M/s. M.A. Yahya v. M/s. Nawab Abdul Malik Estate 1982 SCMR 1160; Dr. Abd411ah Ghanghro v. Mst. Tahira Begum 1984 C L C 3102 and Noor Muhammad and another v. Mehdi 1986 C L C 90 ref.

J.H. Rehmatullah for Appellant.

Manohar Lal for Respondents.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has arisen from an order a/s 16(2) of the Ordinance, dated 8th November, 1982, passed by the learned XVIth Controller, Karachi, whereby he struck off defence of the appellant in a Rent Case No .4957/81 in the following circumstances.

During the pendency of the aforesaid Case No.4957/81 filed by the respondents for eviction of the appellant and one Rafiq from the rented premises, a shop No.G-5, Murtaza Chambers, Dr. Daud Pota Road, Karachi Saddar, the learned Controller passed an order, dated 14-1-1982 on an application a/s 16(1) of the Ordinance as under:

"I have heard the learned advocates for the parties and have perused an application in hand statement of the advocate for the opponent flied today and pleadings of the parties.

The applicant has prayed for direction to the opponent to deposit the arrears of rent at the rate of Rs.137.50 per mensem from May, 1981.

The rate and the period of arrears of rent are not under dispute. What is stated on behalf of the opponent is that he is depositing the rent with permission of Court from May, 1981 in Misc. Rent Case No.4957/81 and that he has deposited the rent upto April, 1982 in advance. Alongwith the statement photostat copy of the receipt of depositing rent is also attached.

In view of the above facts, arrears of rent from the month of May, 1981 to January, 1982, i.e. for nine months at the above rate which comes to Rs.1,237.50 in Court. I direct the opponent to deposit the arrears in this case. However, he is allowed the adjustment of the amount already deposited in Misc. Rent Case No.4957/81.

It's worth mentioned that the opponent claims to have deposited the rent in advance in Misc. Rent Case No.4957/81, upto April 1982, hence, he is directed to deposit future rent in this Court from May, 1982. The rent for that said month May, 1982 shall be deposited on or before 9th July, 1982 and soon. The opponent shall be responsible for default, if at the later stage of the inquiry his statement about the advance payment of rent upto April, 1982 is found to be incorrect. He is further directed to stop depositing rent any more here after in his Misc. Rent Case.

Announced in the open Court. Given under my hand and seal of this Court the 14th day of January, 1982."

The Advocate for the respondents made an application u/s 16(2) of the Ordinance on 16-9-1982 that the appellant and the co-opponent Mohammad Rafiq in the Rent Case had failed to comply with the order, dated 14-1-1982 inasmuch as that they had not deposited rent from May, 1982 and therefore their defence was liable to be struck off. The Advocate for the appellant resisted the application and filed objections, dated 23-10-1982 stating that rent had been deposited upto 30th April, 1983 in advance but the deposit was inadvertently made in the account of Misc. Rent Case No.4175/81 filed by the appellant for deposit of rent with the Controller and no default was committed. The learned Controller held by the impugned order that deposit of rent in the Misc. Case No.4175/81 after making of the order, dated 14-1-1982 did not absolve the appellant of his obligation of depositing future rent in the Rent Case No.4157/81 and there was non-compliance of the order of the Controller and therefore his defence was liable to be struck off and the order for striking off his defence was made.

The learned counsel for the appellant has contended that the order of the learned Controller, dated 14-1-1982 for deposit of rent was without jurisdiction as there were no arrears against the appellant /tenant and therefore no order for deposit of tentative rent could' be passed. He has also advanced the plea that the learned Controller had not determined the quantum of arrears of rent. He has next urged that rent was actually deposited in advance in the Misc. Rent Case No.4175/81 inadvertantly and there was no deliberate default in payment of rent in the Rent Case No.4957/81. He has placed reliance on the cases reported in P L D 1969 Kar. 176; 1975 SCMR 261; 1982 C L C 702, 1983 S C M R 773 and 1985 C L C 2862.

The learned counsel for the respondents has contended that the order of the learned Controller, dated 14-1-1982 was flagrantly flouted and rent was not deposited in the rent case as directed and there was deliberate non-compliance of the order of the Controller. He has made pointed reference to the direction of the learned Controller in the order dated 14-1-1982 that no deposit was to be made in the Misc. Rent Case thereafter. He has also made reference to a statement of the Advocate for the appellant before the Controller, dated 14-1-1982. He has relied upon the cases reported in 1982 S C M R 1166, 1984 C L C 3102 and 1986 C L C 90.

The contention of the learned counsel for the appellant that the order for deposit of tentative rent, dated 14-1-1982 was without jurisdiction as there were no arrears of rent and no order for the deposit of future rent could be passed is fallacious. The question involved in this appeal is entirely based on the provisions of section 16 of the Ordinance which reads as under:--

16. Arrears of rent.--(1) Where a case for eviction of the tenant as been i e , 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.

(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1) his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.

(3) Where the rent has been deposited under this action, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller. "

It is apparent from the bare reading of section 16 reproduced above that it envisages determination of the arrears of rent and making of the order for deposit of the arrears of rent within period that may be specified by the Controller and deposit of future monthly rent on or before the 10th of every month till final disposal of the case. It appears that the word "further" in subsection (1) of section 16 has been misconstrued in advancing the arguments that order for deposit of monthly future rent could not be passed unless the tenant was liable to pay arrears of rent. In fact, direction for deposit of future rent falls within direct jurisdiction of the Controller seized of the rent case for eviction filed by tile landlord and the Controller has been conferred further power of enforcing deposit of arrears of rent. In the instant case, the learned Controller did deal with the arrears of the rent but did not pass any directive order for deposit of the arrears in view of the statement on behalf of the opponent that the rent had been deposited in advance in the Misc. Rent case upto April,. 1982. Accordingly, the order, dated 14-1-1982 for deposit of future monthly rent was passed in exercise of the powers conferred on the Controller a/s 16 of the Ordinance.

The crucial question is whether the tentative rent order, dated 14-1-1982, reproduced above, was complied with in respect of deposit of future rent. It was directed in the order that the future rent was to be deposited in the Court of the Controller seized of rent case. It is an admitted fact that the future rent was not deposited in that Court but it was deposited in the Misc. Rent Case No.4175/81 between the same parties. The contention of the learned counsel for the appellant is that the rent was deposited for full one year in advance in the Misc. rent case and, although the deposit so made was not strictly in accordance with the order, yet the appellant was not liable of non-compliance of the order as the deposit was made in the Misc. Rent case inadvertantly. From the case relied upon by the learned counsel already referred to above, only three cases viz. Akhtar Hussain v. Kabeer Hussain 1982 C L C 702, Major (Retd.) A.S.K. Saman v. Lt.-Col. (Retd.) A. Hussain and another 1983 SCMR 773 and Muhammad Yousuf v. Maqbool Ahmed 1985 C L C 2862 are relevant to the question under consideration. In the case of Akhtar Hussain v. Kabeer Hussain it was held by a learned Judge of this Court that deposit of tentative rent in other proceedings between the same parties by mistake and erroneously but with the intention of making deposit in the rent case did not amount to wilful default. In the case of Major (Retd.) A.S.K. Saman v. Lt.-Col. (Retd.) A. Hussain and another, leave was granted by the Supreme Court to consider contention whether deposit of rent in earlier proceedings between the parties entailed penalty of striking off defence. That case was ultimately decided, as Civil Appeal No.K-97/82, on 30-1-1984 and it was held that deposit of tentative rent in the Misc. Rent case filed by the tenant and not in the rent case did not amount to disobedience of the order of the Controller entailed penalty of eviction from the rented premises. In the case, of Muhammad Yusuf v. Maqbool Ahmed, a learned Judge of this Court held that deposit of tentative rent in the Misc. rent case instead of ejectment case was only technically non-compliance of the order of the Controller and it did not constitute a ground for striking off defence of the tenant unless it was pointed out that it was contumacious conduct or had faith of the tenant in depositing the rent in the Misc. case instead of the ejectment case. On the other hand, the learned counsel for the respondent has urged that it was expressly directed in the order, dated 14-1-82 that the future rent was to be deposited in the rent case and not in the Misc. Rent case and therefore the deposit of rent in the Misc. Rent case was conscious non-compliance of the order of the Controller. The cases relied upon by him are M/s. M.A. Yahya v. M/s. Nawab Abdul Malik Estate 1982 S C M R 1160; Dr. Abdullah Ghanghro v. Mst. Tahira Begum 1984 C L C 3102 and Noor Muhammad and another v. Mehdi 1986 C L C 90. In the first case vis., M/s. M.A. Yahya v. M/s. Nawab Abdul Malik Estate, it was held that non-compliance of the order of the Controller for deposit of tentative rent entailed striking off tenant's defence. In that case it was observed that some of the deposits in the Misc. Rent case were made after due date and some other deposits were not proved and it was held that such conduct of the tenants amounted to non-compliance of the order of the Controller entailed striking of the defence of the tenant. In the second case Dr. Abdullah Ghanghro v. Mst. Tahira Begum, it was held that deposit of tentative rent in Misc. Rent case, despite order passed by the Rent Controller for deposit of rent in rent case, amounted to non-compliance of the order of the Controller and since deposits of rent in the Misc. rent case were, not proved, defence of the tenant was struck off. But that view was not approved of by the Supreme Court in Civil Petitions for Special Leave to Appeal Nos.K-15 and K-16 of 1984 decided on 31-1-1984. In the case of Noor Muhammad v. Mehdi, it was held the failure to deposit of rent in compliance of tentative rent order entailed striking of the defence. In that case, the tentative rent for two months was deposited after due dates and the case is not directly applicable to the fact of this case.

Considering the appellant's case in the light of the aforesaid authorities the facts of the case appear to be identical to those of the case Major S.K. Saman v. Lt.-Col. A.Hussain and another (Civil Appeal No.L-973/82 in the Supreme Court decided on 30-1-1984), as the rent 'was deposited for the full year in lumpsum in advance the Misc. Rent, case within few months of the order made for the deposit of tentative 'future ''rent. Of course, the learned Controller had expressly ordered that the rent shall not be deposited in the Misc. Rent case but it appears that the deposit in the Misc. Rent case was made due to ignorance of the order pleaded by the appellant and he did not intentionally disobey the order of the Controller. Accordingly, the appeal is allowed, the impugned order of the learned Controller, dated 9-11-1982 is set aside and the case is remanded to the learned Controller for deciding it on merits. The parties shall bear their own costs.

H.B.T./L-6/K

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