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First Rent Appeal No. 193 of 1986, decided on 21st December, 1986.

(a) Sind Rented Premises Ordinance (XVII of 1979)-

-- S. 21-Appeal against ejectment-Ejectment of tenant ordered for non-compliance of tentative rent order-Plea of jurisdiction raised for first time in appeal by tenant-Effect-Where tenant failed to object to jurisdiction of Rent Controller either in written statement or at any time thereafter, but submitted himself to jurisdic tion thereof, Rent Controller's order of eviction for non-comp liance of tentative rent order, held, was justified and maintain able.

P L D 1974 S C 124; Nazar Ahmed v. Seth Karim 1984 C L C 1118; 1981 C L C 212 and 1. S. G. A. Ltd. v. Ms(. Rift Fakhir 1985 C L C 364 ref.

(b) Sind Rented Premises Ordinance (XVII of 1979)-

-- S. 21-Appeal against ejectment-Locus standi of appellant to file appeal-Appellant in possession of demised premises through his employer, i.e. the tenant --Ejectment of employer/tenant, held, would automatically include ejectment of such tenant's employee ----Rejection of Appellate Court's offer by appellant to deposit arrears of rent in accordance with tentative rent order and have opportunity to plead his case before such Rent Controller, held, would not entitle such tenant to file appeal against his eviction.

1981 C L C 212 and Nazar Ahmed v. Seth Karim 1984 C L C 1118 ref. Gul Zaman Khan for Appellant. N. A. Farooqi for Respondents. Date of hearing : 8th December, 1986.

This first rent appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) has been filed by appellant Dr. Muhammad gaeed against the order dated 29-3-1986 passed under section 16(2) of the Ordinance.

2. Facts are that respondent Mrs. Parveen Hilaluddin ii'ied Rent Case No. 3597of 1984 under section 15 of the Ordinance on the ground of default in payment of rent. The written statement was filed by appellant and respondent No. 2. The respondent No. 1 landlady, filed an application under section 16(1) of the Ordinance. The Rent Controller by an order dated 23-5-1985 passed tentative rent order whereby respondent No. 2, Ciba Giegy (Pakistan) Limited was directed to deposit the arrears of the rent with effect from May 1984 upto August 1985 amounting to Rs. 67,500 on or before 10th October. It was further directed that respondent No. 2 to deposit future monthly rent on or before 10th of every succeeding month. The order of the Rent Controller was not complied with, there fore, he has struck off the defence.

3. Mr. Gul Zaman Khan Advocate for the appellant at the outset has submitted that point of jurisdiction is involved in the rent case which has not been decided by the Rent Controller, therefore, he was not competent to pass tentative rent order in the proceedings. He has referred to the cases reported in 1985 C L C 364 and P L D 1974 S C 124. It is argued that the orders passed under sections 16(1) and 16(2) are bad in law.

4. Mr. Nasim Farooqi raised the following points :-

(1) That appellant has no locus standi to file the appeal.

(2) The order of the Rent Controller is against the respondent No. 2 who has not challenged the order.

He has referred to the cases reported in 1984 C L C 1118 and 1981 C L C 212.

5. In rent application, respondent No. 2, Ciba Giegy (Pakistan) Limited and appellant Dr. Muhammad Saeed were made party. They both filed separate written statements. Appellant was in service of respon dent No. 2 and he used the premises by virtue of his employment of respondent No. 2. The agreement was between Mrs. Parveen Hilaluddin landlady and Ciba Giegy (Pakistan) Limited. On expiry of lease agree ment, the possession was not handed over to owner.

Respondent No. 2 in his written statement admitted the relationship but stated that appellant's services were terminated and he was entitled to be in possession upto 30th April, 1984 and on or after 1st May, 1984 the appellant was under a duty to vacate the premises and hand over to the landlady but in breach of his obligations as the licensee he wrongfully con tinued in possession and now trespassed..

6. Appellant in his written statement admitted the agreement between respondent No. 1 and respondent No. 2 but stated that he had all along been in possession of the premises but later on landlady refused to receive the rent from him with mala fide intention. In para. 9, he states as under :-

"That no cause of action accrued to the applicant for filing this case against appellant (opponent No. 2), It is further submitted that this Hon'ble Court has got no jurisdiction to entertain these proceedings. The application is liable to be dismissed with special cost."

7. Application under section 16(1) of the Ordinance was filed on 23-5-1985 and Rent Controller, directed respondent No. 2 (company) to deposit arrears of rent with effect from May 1984 upto August 1985 amount ing to Rs. 67,500 on or before 10th October. It was further ordered that future monthly rent to be deposited on or before 10th of succeeding, month.

8. Appellant made an application on 21-10-1985 under Order XI, rule 14, C. P. C. in which it was requested to direct respondent No. 2 to produce lease agreements etc. as company has requested for disconnection of his telephone. This application was supported by affidavit of appellant. Dr. Muhammad Saeed who in his affidavit stated that he is old tenant of (applicant) respondent No. 1 and rent of May and June 1984 was duly sent to applicant by cheque dated y-5-1984 which was refused with mala fide intention just to create a ground of default. He has also stated that applicant (landlady) tried to dispossess him but he filed civil suit and. got injunction from the Court of Civil Judge Karachi.

9. Appellant also made an application of review of rent order in which he requested the Controller that he (appellant) may be directed to deposit the arrears of rent as well as future monthly rent. This application was also supported by an affidavit of appellant. His application was dismissed by the Rent Controller by an order dated 6-3-1986.

10. There are some facts which are not disputed. Appellant is in pos session of premises through his employer and there is no agreement between appellant and respondent No. 1. The services of appellant have been terminated and respondent No. 2 are not interested in holding the posses sion. There is no direct relationship between appellant and landlady. The rent for the premises is not being paid. There is clear violation of tentative rent order as respondent No. 2 neither paid arrears nor future rents and they have not filed appeal against ejectment order passed under section 16(2) of the Ordinance. While hearing the appeal appellant was asked to deposit arrears and future rent with Rent Controller but Mr. Gul Zaman did not agree. Mr. N. A. Farooqi frankly stated at the Bar that in case rent is deposited in terms of tentative rent order the case be remand ed. Mr. Gul Zaman appearing for the appellant argued that since Rent Controller has no jurisdiction, the order passed by the Rent Controller is ab initio bad in law.

11. Appellant filed his written statement on 27-4-1985. He has not taken the ground that Rent Controller has no jurisdiction nor he submitted any document in support but at appellate stage learned counsel has argued that premises are within cantonment area, therefore, provisions of Cantonment Rent Restriction Ordinance, 1963 will apply to the proceedings and Rent Controller under Sind Rented Premises Ordinance has no jurisdiction. He has placed reliance on a case of I. S. G. A. Ltd. v. Mst. Rift Fakhir (1985 C L C 364). Presently there is no evidence to this effect. This point can -be taken on the basis of documents when issue is to be framed but no such application was made by the appellant to the Rent Controller. Rent case has not proceeded. In the meanwhile application under section 16(1) of the Ordinance was filed on 23-5-1985 and appellant filed two applications on 21-10-1985 one under Order XI, rule 14 and other for review of order, He stated in the affidavits that on 9-5-1984 he tendered rent and admit to be the tenant. He has not raised objection of jurisdiction. He submits to the jurisdiction of Rent Controller at this stage, therefore, Rent Controller has rightly not touched this point in tentative rent order or in order passed under section 16(2). In the above-cited case 1985 C L C 364 in para. 6 of judgment it is held as under:---