' The appellant Munir Hassan Khan has assailed the order dated 12-6-2001 passed by the Additional Rent Controller, Clifton Cantonment, Karachi whereby the ejectment application filed under section 17(2)(i) of the Cantonments Rent Restriction Act, 1963 (hereinbelow to be referred to as "the Act") by respondent Syed Aziz Ahmed against the appellant was allowed and the latter was directed to vacate the rented premises within 30 days of the said order.
2. The background of the case is that the rented premises, Flat No,2, 2nd Floor, Plot No,2-C, Street III, Khayaban-e-Jammi (Commercial), Phase VII, Defence Housing Authority, Karachi was rented out by the respondent to the appellant under an agreement dated 2-5-1998. Initially, advance rent for 3 months for May, June and July, 1998 was paid by the appellant, but thereafter he failed to pay rent, therefore, eviction proceedings were instituted against him and order of eviction was accordingly passed. Execution proceedings were also instituted, but by mutual agreement the execution application was withdrawn and fresh agreement was executed on 23-11-1999. It was the case of respondent that according to fresh agreement the appellant/tenant had agreed to pay on the first of every month the monthly rent of Rs,8,000 as also an amount of Rs,-8,000 towards clearance of arrears which had then risen to Rs,80,000. According to respondent, the appellant paid only Rs,8,000 per month irregularly -clearing the rent up to October, 1999 leaving behind the arrears of Rs,1,12,000 for the period from November, 1999 till the day of filing of the eviction application and that the appellant also failed to pay utility bills as a result the electricity charges accumulated up to Rs,51,000.
3. The notice of eviction application could not be served on the appellant through ordinary mode of service, therefore, it was published in daily Nawa-e-Waqt. Thereafter, Mr. M.A. Tariq Qureshi, Advocate appeared on behalf of the appellant and filed his Vakalatnama and received the copy of ejectment application. He was allowed several opportunities to file written statement, but he failed to avail the same, therefore, the Rent Controller was constrained to close his side for filing of written statement and by an ex parte order the application was allowed and ejectment ordered.
4. I have heard Mr. M.A. Tariq Qureshi, learned counsel for appellant and Mr. Badrul Alam, learned counsel for respondent.
5. Learned counsel for appellant contended that the eviction application in question was barred Under section 23 of the Act as the earlier rent application (R.C. No,14 of 1999) was finally decided on the same issue; therefore, hit by the doctrine of res judicata the subsequent proceedings are not legally tenable. He further contended that no notice under section 17(2) of the Act was issued to the appellant and the ejectment order was without jurisdiction within the meaning of sections 6-A and 27 of the Act. On factual side he contended that no default has been committed by the appellant.
Learned counsel for respondent controverted all the contentions and submitted that the earlier rent proceedings were for a different period and only the execution proceedings were withdrawn whereafter a new agreement was executed and the default in question has been committed in terms of the new agreement; therefore, the proceedings were not hit by section 23 of the Act. He also submitted that the contentions as to jurisdiction of Rent Controller were ill-founded.
6. I have considered these contentions anxiously and perused the record of the lower Court. As regards the compliance of section 6-A of the Act the contention raised by learned counsel for appellant has no force as the original application has been signed by the Controller of Rent, Clifton Cantonment and it also bears an endorsement that it was presented on 12-12-2000 to the concerned official of the Controller of Rents. Under section 6-A of the Act, the Rent Controller is competent to assign the case to an Additional Controller for hearing and disposal, as such, no infringement of any provision of law has, occasioned in the circumstances, by transferring the case to the Additional Controller of Rents.
7. The contention, as to non-compliance of section 17(2)(i) of the Act is also misdirected. Notice was issued to the appellant in ordinary course and ultimately the same was published in Daily Nawa-e-Waqt whereafter his Advocate appeared in Court on 23-4-2001 and filed his Vakalatnama and received the copy of main ejectment application. Later on, the matter was fixed on several dates viz. 28-4-2001, 15-5-2001, 21-5-2001 and 2-6-2001, but the appellant failed to file written statement. On the last-mentioned day the opponent was also absent. Learned Rent Controller was, therefore, constrained to close the side of appellant which order, in the circumstances, is wholly justifiable. The contention, as aforesaid, has no force.
8. The ground based on the doctrine of res judicata envisaged under section 23 of the Act is premised on the proceedings taken under Rent Case No,14 of 1999. The copy of the order dated 24- 7-1999 passed in the said rent case indicates that the appellant had 'failed to comply with the tentative rent order, therefore, his defence was struck off under section 17(9) of the Act. The aforesaid eviction order, therefore, was confined to striking off the defence as a valid order under section 17(8) of the Act passed earlier by the Rent Controller was violated by the appellant. It was in those circumstances that the .Eviction was ordered and execution was filed, but the execution was 'withdrawn since a new agreement was executed. On the face of it, the circumstances of the present case and the cause of action are altogether new and premised on different set of facts.
The default in payment of rent is not only in respect of the current rent, but also with regard to arrears. There is additional ground of default resulting from non-payment of utility bills. The period and nature of default thus, was wholly new, the bar contained under section 23 of the Act was therefore, not applicable as by no stretch of imagination the decision in the earlier rent case could be final in respect of subsequent defaults. This contention, therefore, fails.
9. As regards violation of section 27 of the Act, no material was referred to for proving that the Rent Controller violated any provision of law. As far the inquiry is concerned, sufficient opportunity was afforded to the appellant, but he failed to avail the same, therefore, on the basis of affidavit filed in ex parte proof the eviction order was passed. The above default in payment of rent was clearly made out. The appellant failed to produce any document to show that he had made payment of current rent as well as the arrears up-to-date in terms of the agreement dated 23-11-1999.
However, learned counsel for appellant was all along basing his arguments on para.11 of the Rent Application that the last payment of Rs,8,000 was made through cheque in August, 2000. Learned counsel for respondent submitted that payment of one cheese for current rent was not enough to cover arrears of Rs,1,12,000 which had accumulated and payment thereof was due within the meaning of agreement dated 23-11-1999 which has not been denied in express terms. On the whole, I am satisfied that the appellant has no material with him to explain the default in payment of rent current as also arrears and the utility charges. The order passed by the learned Additional Rent Controller is legal and perfectly justified and calls for no interference. The appeal is without substance and is dismissed in liming with no order as to costs. These are the reasons for the short order announced on 13-8-2002.