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First Rent Appeal No. 470 of 1986, decided on 1st December, 1986.

‑‑‑Ss . 15 , 16(1) (2) , 20 & 21(1)‑‑Eviction of tenant‑‑Non‑compliance of tentative rent order‑‑Striking off defence‑‑Remedy against‑‑Review application‑‑Maintainability of‑‑Tenant's defence struck off under S.16(2) due to non‑compliance of tentative rent order and final ejectment order was passed against him in consequence thereof‑‑Tenant instead of filing appeal against such order under S.21(1), filed review application before Rent Controller after about 3 months from passing of such ejectment order‑‑Review application was purported to be filed under S.16(2), but there being no provision under that section for review, application, was not maintainable‑‑However, even if same was entertained by Rent Controller and was rejected after hearing parties, appeal against such rejection was also not maintainable‑‑Appeal against final ejectment order filed after rejection of review application being hopelessly barred by limitation was also dismissed being maintainable in circumstances.

1985 C L C 526; 1986 C L C 1554; P L D 1985 Quetta 152; 1985 S C M R 1577; P L D 1980 Kar. 76; 1984 C L C 2899; 1984 CLC 3102; 1985 C L C 2211; Islam Riffat Siddiqui v. Mahmood Abid Rizvi 1985 S C M R 170; Najimuddin v. Zamir AhmadP L D 1982 Kar. 188; Abdul Ghafoor v. Mst. Mumtaz P L D 1982 S C 88; P L D 1970 Lah. 6 and 1985 C L C 1411 ref.

Gul Zaman Khan for Appellant.

S. A. Majeed for Respondent.

Date of hearing: 19th November, 1986.

This. First Rent Appeal has been filed under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter to be referred as 'Ordinance') against the order, dated 21‑7‑1986 of IVth Sr. Civil Judge & Rent Controller, West, Karachi, whereby the review application of appellant was dismissed and in same appeal eviction order dated 20‑4‑1986 passed under section 16(2) of the Ordinance has also been challenged.

The facts are that respondent Dr. Tajammul Hussain filed rent case under section 15 of the Ordinance against the appellant for ejectment from the shops numbers 5‑6, constructed on plot No.60‑E, Block 111, Gole Market, Nazimabad, Karachi, West on the grounds of default.

The written statement was filed by the appellant. In the meanwhile an application under section 16(1) of the Ordinance was moved by respondent on 19‑8‑1982. The Rent Controller by an order dated 13‑3‑1984 directed the appellant to deposit the arrears of rent w.e.f. June 1980 till February, 1984 at the rate of Rs.150 per month amounting to Rs.6,750 minus the amount already deposited in Misc. Rent Appl. No.150.83 within one month. Appellant was further directed to deposit the future rent with the Nazir of the Court on or before 10th of every succeeding calendar month till the disposal of the case. On 6‑8‑1983 appellant filed an application before the Rent Controller in which it was prayed that order on application under Section 16(1) of the Ordinance was sought n mis-facts as he is depositing rent in Misc. Rent Application No.15W183 and there are no arrears due against him. The respondent on 22‑11‑1984 made an application under section 16(2) of the Ordinance. The Rent Controller by an order, dated 20th April, 1986 allowed the application under section 16(2) of the Ordinance and directed the appellant to hand over vacant possession of the premises to respondent. The defence of appellant was struck off as he had not paid the rent for the month of December, 1984 to July, 1985. On 11‑7‑1986 appellant filed application requesting therein to review the order on the ground that no fault in payment of rent has been committed by him. The Rent Controller while dismissing that review application on 31st of July, 1986 stated his order that on verification he has come to the conclusion that appellant paid Rs.100 for the month of December, 1984 on 6‑5‑1984 and Rs.50 on 14‑1‑1985 as such he failed to deposit monthly rent of December, 1985. However, he dismissed the review application hence, appellant has filed this appeal and challenged both orders.

Mr. Gul Zaman Khan appearing for the appellant contended that the tentative rent order passed by the Rent Controller is not in accordance with the law as he has not hold summary enquiry properly as contemplated under section 16(1) of the Ordinance. He has argued that from time to time the Rent Controller has changed the tentative rent order as such it was not possible for the appellant to comply with illegal order. He has argued that finally Rent Controller has come to the conclusion that default is to the extent of Rs.50 only. Mr. Gul Zaman Khan has referred to the rent application in which default has been alleged from June 1982 whereas according to him the Rent Controller without applying his mind has directed the appellant to deposit the arrears from June 1982 February, 1984. The next contention of the learned counsel is that the limitation is not applicable when order itself is nullity in the eye of law. He has referred to the cases reported in P L D 1977 Lah. 6; 1985 C L C 526; 1986 C L C 1554; P L D 1985 Quetta 152, 1985 C L C 1411; 1985 S C M R 1577.

Mr. S.A. Majeed appearing for the respondent has argued that the final order of the Rent Controller passed on 20th April, 1986 was not challenged in High Court therefore appeal is barred by limitation. He has referred to the cases reported in P L D 1980 Kar. 76; P L D 1982 SC 88, 1984 C L C 2899. He has also referred to the cases reported in 1984 C L C 3102, 1985 C L C 2211 and 1985 S C M R 170.

The order under section 16(2) for striking of the defence of the appellant was passed on 20th April, 1986 and no appeal was filed against that order. On the contrary on 11‑7‑1986 a review application was filed. It is to be noted that review application is dated 25‑5‑1986 but presented before the Rent Controller on 11‑7‑1986. This has deliberately done to condone the delay in filing this application. However, that application was entertained and the order was passed by the Rent Controller after hearing the parties. Now the question arises, if appeal against Review is allowed what would be the consequence when the final eviction order was not been challenged within time, and it has been reached to the finality by which appellant has to hand over the possession. The final order under section 16(2) of the Ordinance was passed on 20th April, 1986. It is therefore clear that appeal against that order was not filed within 30 days as required under section 21 (1) of the Ordinance. In a case of Najimuddin v. Zamir Ahmad reported in P L D 1982 Kar. 188, it has been held that Limitation Act is not applicable in the rent proceedings. This view has been approved by the Supreme Court in a case of Abdul Ghafoor v. Mst. Mumtaz reported in P L D 1982 SC 88. The learned counsel for the appellant has vehemently argued that when order itself is void the limitation will not apply and on this he has cited PLD 1970 Lah. 6 and 1985 C L C 1411. These cases are not relevant to the present case. Moreover, the order of the Rent Controller striking of the defence in my view is not void order as Rent Controller while deciding the review application has come to the conclusion that there is still default and non‑compliance of the tentative rent order is there. This question has also been decided by the Supreme Court in a case of Islam Rafat Siddiqui v. Mohammad Abid Razvi reported in 1985 S C M R 170 where it has been held non‑compliance of the order renders the tenant responsible and ejectment order was maintained. I also refer to Supreme Court Judgment in Civil Appeal No.419‑K/85 dated 9‑3‑1985 where it has been held as under:

"2. In appeal before the Sind High Court the petitioner contended that he has committed no default of the tentative rent deposit order, in so far as he had continuously deposited rent in the miscellaneous proceedings upto the date of the order striking off his defence. His plea was that the Advocate engaged by him had died and he had engaged another Advocate to represent him, who had no knowledge of the proceedings, with the result that the petitioner had no notice of the passing of the tentative rent order of the application for striking off his defence. In view of this plea the learned Judge in the High Court examined Mr. Zafar Javed Advocate subsequently engaged by the petitioner. In his statement Mr.Zafar Javed stated that he had directed the petitioner to bring the papers and receipts of rent deposited by him but the petitioner failed to do so in time before the passing of the final order by the Rent Controller. The learned Single Judge upon examining the material on record found that notice of the application for striking off defence has been received by Mr. Zafar Javed after he was engaged and therefore came to the conclusion that the petitioner was negligent in prosecuting his case by not furnishing his counsel with the relevant information regarding the deposit of rent. As no particulars of the account number of receipts of the miscellaneous proceedings were produced before the learned Rent Controller the learned Single Judge felt that the latter was justified in passing the order of ejectment. Additionally the learned Judge came to the conclusion that as the premises were admittedly demolished by the landlord after obtaining possession from the petitioner by means of execution of the order of ejectment no useful purpose would be served to relieve the petitioner of what he described as technical default committed by him. Accordingly the petitioner's appeal was dismissed by the learned Single Judge by his order dated 18th September, 1985.

3. In support of this petition for leave to appeal from the order of the High Court, the learned counsel contended that the petitioner had committed no default in compliance with the tentative order passed by the Rent Controller. We are unable to agree with this submission for admittedly the rents were not deposited in the account of the ejectment application. The High Court has for good reasons found the petitioner negligent in prosecuting his defence and we are satisfied that the Rent Controller was in striking off the defence of the petitioner. It was or him to have complied with the orders by depositing the rents in the account of the ejectment application which was the direction given in the order passed under section 16(1) of the Sind Rented Premises Ordinance.

4. Learned counsel also argued that the High Court was not justified in refusing relief to the petitioner on the ground that the building of the premises was demolished. His contention was that demolition of the demised premises does not terminate the tenancy. In the circumstances of this case, we find no force in this contention for the reason that the appeal of the petitioner was not dismissed on the basis of the demolition of the building only, but this fact was taken into consideration in the context of petitioner's plea that the non‑compliance of the tentative rent order was technical in so far as the rents were being deposited in the miscellaneous proceedings. Learned counsel wanted us to hold that the building has not been completely demolished but we are not inclined to undertake a factual inquiry at this stage.

5. For all these reasons this is not a fit case for grant of leave and accordingly the petition is dismissed."

The appellant's contentions that by filing of review application he can get benefit of that order. In my view this cannot be sustained on the simple ground that since section 5 of the Limitation Act has not been extended to the rent cases. It will also not apply to the appeals and the applications arising from such cases. It can also not be made applicable by deeming the application to which it relates to have made under some provisions of the Civil Procedure Code. In fact it is clear from section 20 of the Ordinance that provisions of CPC except those mentioned in the said section are not applicable in the rent cases. As such review application purported to have been filed was strictly speaking not maintainable. The appellant had remedy against the final order whereby the defence was struck off. He could have been taken all these pleas in the first rent appeal rather than filing review application as the order under section 16(2) was final order within the meaning of section 21 of the Ordinance. Since no appeal has been filed against the final order the appellant cannot seek remedy against the review order. Even there is non‑compliance of the tentative rent order in the review order. The review application though dated 25‑5‑1986 was presented before the Rent Controller on 11‑7‑1986. It was filed under section 16(2) of the Ordinance. There is no such provision under section 16(2) for review. The application was also presented about three months after the passing of order under section 16(2) of the Ordinance. For the reasons stated above the appeal against the final order is hopelessly barred by limitation and there is non‑compliance with tentative rent order even though order was reviewed. Appeal is dismissed with no order as to costs.

H.B.T./N‑29/K Appeal dismissed

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