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First Rent Appeal No.293 of 1986, decided on 16th August, 1987.

‑‑‑ S. 16(2)‑‑Default in payment of rent‑‑Tentative rent order passed by Rent Controller‑ ‑Tenant depositing less amount of future rent by Rs. 200 as against rent fixed by Rent Controller in tentative rent order from admitted rent of Rs. 1,500 to Rs.1,700‑‑Such enhanced rate of rent could have been the result of unconscious error on the part of Rent Controller‑ ‑Order for striking off the defence of tenant in the circumstances, was not called for‑‑Order striking off the defence of tenant was set aside and case was remanded to the Rent Controller to take proceedings in accordance with law.

Syed Ishtiaq Ali for Appellant.

Mahmudul Hassan for Respondent.

Date of hearing: 16th August, 1987.

This appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance)' is directed against an order dated 16‑4‑1986, passed by learned IIIrd Senior Civil Judge, Karachi (East), whereby defence of the appellant in Rent Case No.1742 of 1985 was struck off under the provisions of section 16(2) of the Ordinance.

The facts for the purpose of the disposal of the appeal, briefly stated, are that the respondent filed Rent Case No.1742 of 1985, under section 15 of the Ordinance, on 29‑4‑1985, for ejectment of the appellant from a premises on the first floor of the building No. 118‑B, Block‑2, P. E. C. H. S. Karachi on the ground of default in payment of rent. The rent case was resisted by the appellant. The learned Rent Controller passed tentative rent order under the provisions of section 16(l) of the Ordinance on 7‑10‑1985, which read as under:

"Learned Advocates for the parties are present and they have moved the application by consent which will also dispose of the application under section 16(l) pending. As per agreed by the parties' Advocates, opponent is directed to deposit the arrears of rents for the August 1984 to March 1985 at the rate of Rs.1,500 which comes to Rs.12',000 and this amount is for disputed period should be deposited within 60 days from the date as requested by the advocate for the opponent. Regarding admitted arrears for the period April 1985 to September 1985 amount to Rs.10,200 should be deposited within 60 days from this date. As for recurring monthly rents should be deposited on or before 10th of each succeeding months at the rate of Rs.1,700 p.m. The arrears of disputed period i.e. Rs.12,000 which will be not withdrawn by the applicant till disposal of the main application."

On 15‑1‑1986, the Advocate for the respondent /landlord made an application under section 16 (2) of the Ordinance as under:

"Application under Section 16 (2) of Sind Rented Premises Ordinance, 1979.

It is prayed or behalf of the applicant that this Hor.1ble Court be pleased to strike off the defence of the opponent as he has disobeyed the orders of this Hon'ble Court dated 7‑10‑1985 and failed to deposit monthly rent as ordered by the Court. He was ordered to deposit monthly rent at the rate of Rs.1,700 monthly but he has been depositing the recurring monthly rents at the rate of Rs.1,500. He has deposited the rent of October, November and December 1985 on 10‑11‑1985, 7‑12‑1985 and 9‑1‑1986 at the rate of Rs.1,500 instead of Rs.1,700 per month as ordered by the Court.

It is, therefore, prayed that his defence may kindly be struck off and the Applicant be ordered to be put in possession of the suit property."

This application was resisted by the appellant. One of the grounds agitated was that the tentative rent order dated 7‑8‑1985 was not in accordance with law. The other ground raised by the appellant was that the arrears of rent were deposited in accordance with the order dated 7‑10‑1985 and so also the future rent at the rate of Rs.1,500 per month as directed in the order. The learned Advocate for the appellant has urged that learned Judge adopted erroneous view on the basis of overwriting in the order of Rs.1,700 over Rs.1,500 and the order was duly complied with. He has made reference to some authorities which will be mentioned herein below.

The learned counsel for the respondent has contended that there wag clear direction by the learned Controller in the tentative rent order dated 7‑10‑1985 that the future rent shall be deposited at the rate of Rs.1,700 per month and the order was not complied with as the future rent was deposited at the rate of Rs.1,500 per month. He has further urged that the order of the learned Controller was quite clear when he directed that the arrears of rent from April, 1985 to September, 1985, amounts to Rs.10,200 that he had determined the rate of rent for that period at the rate of Rs.1,700 per month and there was no ambiguity regarding the rate for the future monthly rent. He has placed reliance on a case Mst. Akhtar Jehan Begum and 4 others v. Mohammad Azam Khan (P.L.D. 19 3 SC 1), wherein it was held that tentative rent order was to be passed at the rate of rent determined by the Controller approximately and non‑compliance of such order entailed striking off the defence.

The learned counsel for the appellant has launched attack on the legality of the tentative rent order dated 7‑10‑1985, urging that the respondent's case in the ejectment application was that the rate of the rent was Rs. 1, 500 per month and therefore the learned Controller could not pass tentative rent order for deposit of rent at higher rate of Rs.1,700 per month. He has made reference to the provision of section 7 of the Ordinance laying down that no landlord shall charge or receive rent, in respect of any premises, at the rate higher than that mutually agreed upon by the parties, and, if the fair rent has been fixed by the Controller in respect of such premises, at the rate higher than the fair rent. He has cited three cases reported as P L D 1964 Kar 418; P L D 1982 Kar 107 and P L D 1985 Kar. 698. In the first case P L D 1964 Kar 418 (Syed Ahsan Ali v. Jaffer Ali and 4 others) it was held that order in respect of arrears and future rent under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was not in conformity with the provisions of law and the tenant could not be evicted for not complying with such effective order. Similar view was propounded in the case cited as Ali Jan v. Shujauddin (P L D 1985 Kar. 698). Of course, the third case P L D 1982 Kar. 107 (Mohammad Aslam v. Mohammad Umer and another) was altogether on different footing as in that case tentative rent order was passed without ascertaining the quantum of arrears of rent. The contention of the learned counsel is that the parties had not agreed to the fixation of rent at the rate of Rs.1,700 per month but has agreed at Rs.1,500 per month and therefore the direction for deposit of future rent at the rate of Rs.1,700 per month is in contravention of provision of section 7 of the Ordinance. But this contention is against the pleading of the appellant. It was stated by the appellant in his written statement at paragraph 8 that "it was agreed that the opponent would pay the rent at the rate of Rs.1,700 instead of Rs.1,500 per ‑month for the month of April, 1985". To meet this situation, the learned Counsel has contended that admission against law is of no effect and he has again made reference to the provision of section 7 of the Ordinance. In the case cited by him viz. P L D 1975 Kar. 1008 (Zakarya A. Bawani v., City Deputy Collector, Karachi and 2 others), it was held in the context of the provisions of Investment Corporation of Pakistan Ordinance 1966 and West Pakistan Land Revenue Act, 1967 that the expression "all sums debted to the Corporation" meant that the sums which were determined and established. This case has no relevancy to the question in consideration in this case. The other case cited as P L D 1984 Kar 345 also involved in different facts and is not applicable. To meet the arguments by the learned counsel for the respondent that the tentative rent order was passed' with the consent of the Advocate for the appellant. The learned counsel for the appellant has contended that consent was given by mistake by his junior and it cannot be deemed to bind the party and he has made reference to the case reported as Riaz and others v. Razi Muhammad (1982 SCMR 741), wherein it was observed that‑consent, although obtained without element of force or duress, but obtained by practising deceit, trick or misrepresentation deliberately was not consent in eye of law. It is not alleged that any deceit, trick, or misrepresentation was practised on the junior counsel. The second case relied upon by the learned counsel for the appellant is that of Syed Ghousuddin Ahmed v. The Chairman, Karachi Port Trust (P L D 1967 Kar 275), wherein it was held that Board of Karachi Port Trust having given consent in basis of mistake on question of fact will not constitute a valid contract. This case also does not apply to t he question under consideration. It follows that the legal pleas agitated against the legality of tentative rent order dated 7‑10‑1985 are not sustainable.

However, the question for consideration is whether there was non‑compliance of the tentative rent order dated 7‑10‑1985. It appears from the order written by learned Controller in his own hand on the back of the application dated 7‑10‑1985 for passing tentative rent order that the order for deposit of future monthly rent was initially made for the rent at the rate of Rs.1,500 and the figure was later changed to Rs. 1, 700. This overwriting seems to have created confusion. The learned Controller has not mentioned in clear terms as to at what stage this figure of Rs.1,500 was changed to Rs.1,700. Of course, the learned counsel for the respondent has contended that the Advocate for the appellant was fully conscious of the order wherein it was directed that the rent for the period from April, 1985 to September, 1985 was determined at the rate of Rs.1,700 per month and the arrears so determined were actually deposited and it must have been understood that the future rent also was to be deposited at the rate of Rs.1,700. Of course, the arrears of rent for the period, April, 1985 to September, 1985 were determined at the rate of Rs.1,700 per month but the mention in the order that the further rent was to be deposited at the rate of Rs.1,500 per month could have been unconscious error on the part of the Controller who wrote the amount with his own hand and he rectified the mistake by just over writing 171 over 151 changing the amount of rate of Rent to Rs.1,700. It is not disputed that the appellant deposited the future rent at the rate of Rs.1,500 per month. Had there had been dishonest intention on ‑his part, he would not have withheld depositing only a sum of Rs.200. No doubt, the appellant is still depositing the future rent at the rate of Rs.1,500 per month even after the striking off his defence and during the pendency of the appeal but that may be risk he has taken for any proceedings that may be taken after the passing of the impugned order dated 16‑4‑1986.

For the reasons recorded above, the less deposit for the future rent by Rs.2,OC was result of amendment of the order in the rate of rent from Rs.,1.500 to Rs‑1,700 and in such situation the order for Striking off the defence of the appellant was not called for. The appeal is allowed, the impugned order dated 16‑2‑1986 is set aside, and the case is remanded to the Controller to take further proceedings thereon in accordance with law. No order is made for costs.

M.B.A/28/A‑K Case remanded.

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