The sole point of law convassed by Mr. Abdul Rehman Shaikh, learned counsel for the petitioner is that the Rent Controller can pass a tentative rent order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, if there are arrears of rent and in case there are no arrears of rent, the Rent Controller has no jurisdiction to pass a tentative rent order under section 16(1) of the Sindh Rented Premises Ordinance, 1979 and that any default in making compliance of such order committed by the tenant shall not entail the consequences provided in section 16(2) of the said Ordinance.
2. The admitted facts in this case are that the respondent No,3 Vakeel Ahmed, landlord of the premises in question, filed an ejectment application against petitioner Noor Ahmed on the ground of personal bona fide use of his sons. No default in payment of rent was alleged. On 23-8-2000 the learned Rent Controller passed an order on application under section 16 (1) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) as follows: "At the time of arguments, the learned counsel for the applicant has admitted that applicant had received the rent from the opponent up to the month of July, 2000. By consent, the opponent is hereby directed to deposit future monthly rent at the rate of Rs,100 p.m. From the month of August, 2000 onward, on or before 10th of each calendar month."
3. The opponent thereafter started depositing future rent with the Rent Controller as directed. On 6- 3-2003 the respondent No,3 submitted an application under section 16(2) of the Ordinance, praying for striking off the defence of the petitioner for the reasons that the petitioner committed default in Payment of rent for the month of March, 2002. It was admitted by the petitioner that the rent for the month of March, 2002 was deposited alongwith the rent for April, 2002 on 6-5-2000.
Thus the rem for the month of March, 2002, which was required to be deposited on or before 10th of April, 2002 was deposited on 6-5-2002. The petitioner after admitting the default contended that it was due to oversight and was not deliberate. The learned Rent Controller held that there was admitted default in payment of rent for the month of March, 2002, before the stipulated date and consequently he had no option but to strike off the defence of the petitioner. He further observed that no reason whatsoever was assigned for commission of default. Consequently, the defence of the petitioner was struck off and he was directed to vacate the demised shop and deliver the same to the respondent.
4. The petitioner preferred appeal, which was also dismissed.
5. Mr. Abdul Rehman Shaikh, learned counsel for the petitioner has not denied the commission of default on the part of petitioner but has submitted that the tentative rent order passed by the Rent Controller was without jurisdiction and consequently the default shall not a basis for striking off the defence as provided under section 16(2) of the Ordinance. Elaborating his contention, he has submitted that admittedly there were no arrears of rent on the date of passing the tentative rent order by the learned Rent Controller and consequently the learned Rent Controller had no jurisdiction to pass tentative rent order under section 16(1) of the ordinance. He has submitted that the Rent Controller shall have jurisdiction to pass a tentative rent order if there are arrears of rent.
In such eventuality the Rent Controller is empowered to pass a tentative rent order giving direction to the tenant for depositing the arrears of rent and further direct the tenant to deposit the future rent on or before tenth of every month until final disposal of the case. Mr. Abdul Rehman Shaikh, learned counsel for the petitioner has contended that if there are no arrears of rent then the Rent Controller cannot pass any tentative order for depositing the future rent and any such order, would be illegal and without jurisdiction having no consequences. In support of his contention he has placed reliance on a D.B. Judgment of this Court in the case of Nasim Ahmed v. Senior Civil Judge and Rent Controller, PLD 1982 Karachi 210. With all due deference to the learned counsel, the ratio of the cited judgment is not attracted at all to the point in issue. It has been laid dow2n in this case that under section 16 of the Ordinance the Rent Controller is required to pass tentative order for deposit of rent, which is of an interlocutory nature, after making summary inquiry and under section 16 the Rent Controller has been vested with sufficient discretion without specifying the procedure for determining the rent by summary inquiry. It has been further held that nature of summary inquiry differs from case to case and depends entirely on the facts and circumstances of each case. It is, therefore, left to the discretion of the Controller to determine what type of summary inquiry he would make. It has been observed that in determining procedure for summary inquiry full regards should be had to the principles of natural justice which should not in any circumstance be violated by the Controller. It is apparent that the issue for consideration in this D.B Judgment was entirely different as involved in the present petition.
6. The second judgment on which Mr. Abdul Rehman Shaikh, learned counsel for the petitioner has placed reliance in Ali Muhammad v. Khalil Ahmed Allahwala, 1985 CLC 1297. The issue in this case was also different than the issue involved in the present petition. In the cited case the admitted position was that there were no arrears of rent. The tenant was depositing rent in Court with permission. The Rent Controller while passing tentative rent order directed that the arrears of rent be deposited in the rent case after withdrawing the same from the Court. A default was committed in respect of the arrears of rent and the Rent Controller struck off the defence. It was held by a learned Single Judge of this Court that admittedly there were no arrears of rent and consequently the tentative rent order for depositing the arrears of rent was illegal, thus, the question of default and striking off the defence does not arise. The ratio of the cited case is not applicable to the present petition because the issue raised by Mr. Abdul Rehman Shaikh, learned counsel for the petitioner is entirely different.
7. Mr. Abdul Rehman Shaikh, learned counsel for the petitioner has further placed reliance on a Single Bench Judgment of this Court in the case of Mother Care N. & M Home v. Syeda Raisa Fatima 1993 MLD 862. In this case the Rent Controller passed a tentative rent order and subsequently the tenant's defence was struck off on account of default in depositing arrears of rent and future rent. A plea was raised that the tentative rent assessed by the Rent Controller contained an amount which was not recoverable. Wajihuddin Ahmed, J. (As his Lordship then was) repelled the contention and held, that, if there were any disputes, even if genuine and lawful, such ought to have awaited determination of the rate and dues between the parties at the time of conclusion of proceedings. It was further held that till such time as a tentative rent order is in force and holds the field the parties must abide with the same. By reference to the judgment of Honourable Supreme Court in the case of Rahimuddin v. Jalaluddin PLD 1991 SC 484, it was observed that a tenant has to make scrupulous compliance of tentative order of deposit, leaving the broader and basic controversies as regards the true rate, quantum etc. To be decided in the ultimate analysis. It was further observed that the patent illegalities and manifest injustice in a tentative rent order may be open to examination in an appeal against an eviction, following striking off the defence. It is abundantly clear that the reliance placed on this judgment is also misplaced.
8. On the other hand I have been able to lay hand on two judgments of this Court in which the issue raised by Mr. Abdul Rahman Shaikh, learned counsel for the petitioner has been considered. The first judgment is Razak Mill Stores v. Mian Chambers 1993 MLD 1557, in which Wajeehuddin Ahmed, J. Has held as follows:-- "It is true that at the time the provisional order of deposit was passed on 17-10-1989 it was an admitted position that the rents which were due pertained only to the period May, 1989 to.
September, 1989 and thus did not involve the period of default, which was the subject matter of the rent case and on which alone the rent case was based. This in itself did not divest Controller of jurisdiction to pass the tentative order of deposit of rent because such an order is to be passed mandatorily on an application of a landlord irrespective of the fact whether the rent case does or does not involve a ground of default. In other words, in rent cases covering merely the grounds of subletting, personal requirement, nuisance, impairment of the value or utility of the premises and so on such an order has got to be passed if a landlord makes due application under section 16(1) of the Ordinance and subsistence of arrears of rent either at the time of making of the 'application or at the time of passing the tentative order is not relevant." The second case is Niazsons v. S.M. Younus 1992 MLD 400. In this elaborate and erudite Judgment Qaiser Ahmed Hamidi, J. Analysed the provisions contained is section 16(1) of the Ordinance with reference to the following points:
(i) That the application for ejectment was filed by respondents on the ground of subletting alone and consequently there was no occasion for the Rent Controller to have passed an order under section 16(1) of the Sindh Rented Premises Ordinance. 1979.
(ii) That there were no arrears at the time when the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, was made and, therefore. The order for deposit of monthly rent due alone was not justified. It was held as follows:-- Subsection (I) of section 16 of the Sindh Rented Premises Ordinance, 1979, whereunder the tenant was called upon to deposit monthly rent due provided as follows:-- 16.Arrears of rent---(1) Where a case for eviction of the tenant has been tiled, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
7. If we analyse and break up the provisions enacted under subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, it will be clear that structurally it is divisible into three parts namely:--
(i) where a case for eviction of the tenant has been filed (on any grounds);
(ii) the Controller shall on the application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf; and
(iii) further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
8. A bare reading of the opening sentence, viz., 'where a case for eviction of the tenant has been filed'. Would show that an exercise in terms of subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, is to be made in every case of eviction filed by the landlord irrespective of the grounds taken therefor. The learned counsel for the appellants asks me to put a restricted interpretation upon the language of subsection (1) of section 16 of the ''Sindh Rented Premises Ordinance, 1979, but I consider it must of necessity be construed in a more wider sense and the context in which the words where a case for eviction of the tenant has been filed' occur justifies me in widening their meaning.
9. It is also apparent that the directions for deposit of arrears of rent and for deposit of future rent are independent to each other and if there are no arrears at the time of passing an order under subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, there is no legal embargo for not passing an order for the deposit of future rent alone. In the present case the tenant was in arrears for one month at the time of passing order and he was directed to deposit the same by 31st May, 1984. No exception can, therefore, be taken to the order, dated 21-5-1984 passed by the Rent Controller. The cases reported as Moula Bux Bhutto v. Muhammad Hussain 1993 CLC 277, Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum 1984 CLC 68 and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi 1986 MLD 2980, which are cited on behalf of appellants have, therefore, no application to the facts of the present case."
9. The above two judgments have conclusively dealt with the contention raised by Mr. Abdul Rehman Shaikh, learned counsel for the petitioner. Respectfully following the ratio of above judgments, it is held that the contention of Mr. Abdul Rehman Shaikh. That Rent Controller can pass a tentative rent order under section 16 (1) of the Ordinance in the case where ejectment is sought on the ground of default in payment of rent only, and this power cannot be exercised if ejectment is sought on any other ground, and that if there are no arrears of rent. Rent Controller has no jurisdiction to pass a tentative rent order for depositing the future rent, is without substance. It is held that the orders passed by the two learned Courts below are with jurisdiction and there is no illegality, warranting interference of this Court in exercise of Constitutional jurisdiction. The petition is without substance, which stands dismissed in limine.
10. After hearing learned advocate for the petitioner in Court today. The petition was dismissed by a short order. These are the detailed reasons in support of the above order.