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First Rent Appeal No.145 of 1986, decided on 18th May, 1987.

--Ss. 15, 16 & 21--Proceedings--Framing of issues, held, was no requirement of Ordinance.

--Ss.15, 16 & 21--Tentative rent order--Rent Controller before passing tentative rent order applying his mind tentatively on question of relationship of landlord and tenant on basis of tenancy agreement executed by tenant--Order of Rent Controller asking tenant to deposit arrears of rent, held, was not violative of any provision of law.

---Ss.5(1), 15, 16 & 21--Tenancy agreement, attestation of--Attestation of tenancy agreement by a Magistrate not discharging function of Magistrate nor trying case but sitting in office of Deputy Commissioner in connection with duties under Martial Law--Valid--Contention that under S.5(1) of Ordinance proper attestation could have been done by Rent Controller, repelled.

---Ss.15, 16 & 21--Civil Procedure Code (V of 1908), O.I, R.10- Striking off defence--Tenant alleging in' his written statement that he was not tenant but his mother was tenant of the landlord--Landlord filing application for striking off defence of tenant when latter failed to comply with tentative rent order passed by Rent Controller--Tenant and his mother filing application under O.I, R.10, C.P.C., for impleading the lady as a party--Rent Controller allowing application filed by landlord for striking off defence which was earlier in time and leaving application filed for impleadment of tenant's mother undecided--Record showing that tenancy agreement was executed by tenant--Order of Rent Controller striking off defence of tenant and his consequential ejectment maintained--Contention that Rent Controller without deciding application for impleadment of party could not allow application of landlord for striking off defence, held, was not tenable.

Azeez Qureshi for Appellant.

Muhammad Aslam Qureshi for Respondent.

Date of hearing: 18th May, 1987.

This appeal is directed against an order dated-20-2-1986 passed by the learned VIth Senior Civil Judge Karachi, West, in Rent Case No.422 of 1985 striking off the appellant's defence on the ground of non-compliance of the tentative rent order dated 8-5-1985.

2. The brief facts leading to the filing of the above appeal are that the respondent filed aforesaid Rent Case No.422/85 on the ground of default and also on the ground of personal requirement against the present appellant who filed written statement on 11-2-1985 alleging therein, that he was not the tenant but his mother was the tenant. The respondent filed an application under Section 16 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) for deposit of the arrears of rent. The above application was resisted. However, the learned Rent Controller on the basis of the tenancy agreement produced by the respondent Ex.4/A which was executed by the appellant and attested by a 1st Class Magistrate, passed the aforesaid tentative rent order on 8-5-1985 and directed the appellant to deposit the arrears of rent for the period from December, 1983 to April, 1985 at the rate of Rs.400 p.m., amounting to Rs.6,800 on or about 7-7-1985 plus Rs.492.50 electricity and other charges. The above tentative rent order was not complied with. The respondent filed an application on 9-7-1985 for striking off the defence, It appears that the appellant's mother filed an application under Order 1 rule 10 CPC on 21-9-1985. The above application was not decided but the above application for striking off defence was allowed by the order under appeal on 20-2-1986. The appellant being aggrieved by, the above order has filed the present appeal.

3. In support of the above appeal Mr. Azeez Quraishy, learned counsel for the appellant has urged as follows:

(i) That the learned Rent Controller should not have ordered for depositing of the arrears of rent without first deciding the question of relationship and, therefore, the tentative rent order was not legal.

(ii) That the appellant's mother's application under Order 1 Rule 10 CPC remained pending by the time the order under appeal was passed.

(iii) That the tenancy agreement produced by the respondent was not executed by the appellant and in fact was not attested in terms of Section 5 of the Ordinance.

4. Adverting to the first submission of Mr. Azeez Quraishy, learned counsel for the appellant, it may be observed that under the Ordinance there is no requirement of framing of the issues. In this view of the matter, the first contention is untenable. The learned Rent Controller before passing the tentative rent order applied his mind tentatively on the question of relationship and on the basis of the tenancy agreement executed by the appellant ordered depositing of arrears of rent. In my view by doing so, he has not violated any provision of law.

5. As regards Mr.Azeez Quraishy's submission that appellants mother's application under Order I, Rule 10, CPC remained pending for the time being impugned order was passed. It may be pointed out that the application for striking off the defence was filed by the respondent on 9-7-1985 whereas the appellant's mother filed the application under Order I, rule 10, CPC on 21-9-1985 i.e. after more than 2 months from the date of the respondent's aforesaid application. However, Mr. Azeez Quraishy, learned counsel for the appellant has submitted that since the mother had gone to India, she was not available for filing the above application. Be that as it may, the facts remains that the respondent's above application was earlier time. Since the learned Rent Controller had already decided the question of deposit of the arrears of rent on the basis of the tenancy agreement, he was bound to decide respondent's aforesaid application, for striking off defence. The factum that the appellant's mother'; application, was not decided by the time, the respondent's above application was decided, in my view, does not in any way affect tile merits of the order under appeal. It may be pointed out the appellant's mother did not file any document in support of her averment that she was the tenant. The bare averment could not have nullified the tenancy agreement duly attested by a First Class Magistrate.

6. As regards the last submission of Mr.Azeez Quraishy that the tenancy agreement was in fact had not been signed by he appellant and that it was not attested in terms of Section 5 of the Ordinance, it may be observed that since the tenancy agreement was attested by a First Class Magistrate, the presumption was that the appellant had signed the said agreement. However, it was submitted by Mr.Azeez Quraishy that under subsection (1) of Section 5 of the Ordinance: the proper attestation could have been done by the Controller and not by a First Class Magistrate. This submission is contrary to the language of subsection (1) of Section 5 of the Ordinance as under the above subsection attestation can be made either by the Controller or a Civil Judge or a First Class Magistrate. Then it was contended by Mr. Azeez Quraishy that Mr. Merchant who had attested the tenancy agreement was in fact not discharging the function of the Magistrate but was sitting in the office of the Deputy Commissioner West in connection with the duties under the Martial Law. The fact remains that he was a First Class Magistrate and merely the factum that he was not trying the cases would not make any difference.

7. In the present appeal also the appellant as well as his mother have filed the applications under Order I, Rule 10, CPC namely CMA 561/86 and CMA 562/86 for impleading the mother as a party. I am not inclined to grant the above two applications as I am of the view that the mother is not the tenant. The above applications are, therefore, dismissed.

8. For the reasons already discussed hereinabove the appeal hat, no merits and, therefore, it is dismissed with no order as to costs. However, I would allow one year time for vacating the premises on the condition that the appellant shall continue to deposit rent in terms of the Rent Controller's order failing which the respondent shall be at liberty to file an execution application before the expiry of above period of one year. Furthermore, in case the appellant fails to hand over the vacant possession on the expiry of one year period, the Rent Controller shall issue a writ of ejectment without any further notice to the appellant. Since I have granted one year time to the appellant, Mr. Azeez Quraishy submitted that the respon0ent be directed to restore the electricity which was disconnected during the pendency of litigation. Mr. Muhammad Aslam Qureshi, learned counsel for the respondent has submitted that K.E.S.C. disconnected the electricity on account of non-payment and in case the respondent would be allowed to withdraw the electricity charges and the rent deposited by the appellant in pursuance of order of this Court, he will see that the electricity is restored. Mr. Azeez Quraishy has no objection to the withdrawal of the rent and the electricity charges. Upon withdrawal of the amount the respondent will deposit electricity charges within a week with the K. E. S. C. and will make effort to get electricity restored. The rent for the period of one year granted is to be deposited with the Nazir of this Court.

M.Y.H./M-214/K

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