' RANA BHAGWANDAS, J.--- Petitioner seeks leave to appeal against Sindh High Court judgment, dated 22-8-2005 passed in First Rent Appeal No,2 of 2005 under the provisions of section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter referred as the Act, 1963).
2. Petitioner is the tenant of the private respondent by virtue of an agreement of lease, dated 25-4- 2003 in Bungalow No,AA-1/A, Sunset Boulevard, Phase II, Pakistan Defence Housing Authority, Karachi measuring 1000 square yards. According to the terms of the lease agreement, the same would be valid for 11 months and advance rent at the rate of Rs,28,000 per month amounting to Rs,3,08,000 was payable in advance. Through an application on 14-4-2004 under section 6-A and 17 of the Act, 1963, the respondent sought the ejectment of the petitioner on expiry of the tenure of lease, after 11 months. Eviction was sought on the ground that the premises were used for commercial purpose in violation of the terms of lease instead of residential purposes. Furthermore, the landlord required the premises for personal bona fide use for accommodation of his son Dr. Syed Khalidul Hassan, as the present accommodation available with him was insufficient.
3. It may be pertinent to point out that on expiry of 11 months lease period, petitioner filed Suit No,368 of 2004 on 26-3-2004 for permanent injunction against the respondent seeking permanent and A interim restraint orders against his ejectment from rented premises. This was patently a mala fide motion to forestall any proceedings for eviction and avoidance to pay any amount of rent.
4. After service of notice on the petitioner, Mr. Mansoorul Arfeen, Advocate, filed Vakalatnama before the Additional Controller of Rents, Clifton Cantonment, but he failed to file any written statement. Accordingly, in terms of section 17(8) of the Act, 1963, on 31-7-2004, petitioner was directed to deposit the arrears of rent amounting to Rs,1, 12,000 for the period from April, 2004 to July, 2004 within ten days. He was further directed to deposit future monthly rent at the rate of Rs,28,000 before the 5th of every calendar month in the office of the Controller. As the petitioner deliberately failed to comply with this order, on the motion of the respondent, an order striking off defence of, the petitioner in terms of section 17(9) of the Act, 1963 was passed on 21-8-2004 directing him to vacate the premises and hand over possession thereof to the respondent.
5. Interestingly, instead of a regular appeal before the High Court on petitioner's application under section 151, C.P.C. Order, dated 21-8-2004 was recalled, subject to payment of fine of Rs,1,000 vide order, dated 27-11-2004 with direction to the parties to file rent account on the next date of hearing.
On the same day, petitioner's written statement was allowed to be placed on record, in which he claimed to have paid a sum of Rs,6,46,800 on 12-2-2004 in cash to the respondent on account of rent of the premises up to 31-1-2006 without the execution of any acknowledgement receipt.
Petitioner, however, did not comply with the rent deposit order, dated 31-7-2004 and remained quiet.
6. When the rent case came up for hearing before the successor Additional Controller of Rent on 18-1-2005, he after hearing the parties' counsel, restored earlier order, dated 21-8-2004 passed by his predecessor and directed the petitioner to hand over vacant possession of the premises to the respondent. Petitioner challenged this order in F.R.A. Before the High Court, which was dismissed vide order, dated 22-8-2005, hence this petition.
7. It is vehemently contended by Mr. Farooq H. Naik, learned Advocate Supreme Court for the petitioner that, after the recall of the order dated 27-11-2004 passed by then Additional Controller of Rent, the present incumbent Controller did not hold any enquiry into the quantum of rent payable by the petitioner and proceeded to direct the eviction of the petitioner in a summary manner, which suffers from obvious illegality.
8. We have carefully considered this submission of the learned counsel. On close examination of the record, it evidently appears that at the time of passing the tentative rent order, dated 31-7- 2004, learned Controller had accepted the statement of the landlord that the rent was due for four months from 1st April, 2004. The petitioner was duly served with the notice of the proceedings.
Indeed he had hired the services of a counsel, who had duly filed his Vakalatnama on 22-5-2004 but did not file any written statement or any counter-objections to controvert the statement of the landlord. In the face of the record and the averments of the eviction application, verified on oath, Controller was legally justified in passing the order directing the petitioner to deposit tentatively arrears of rent within 10 days and continue to deposit future rent before 5th of every month. Indeed no exception could be taken to this order, which remained unattended and not complied with by the tenant without any legal justification. Non-compliance with this order was bound to result in punitive consequences and culminated in striking off defence of the petitioner vide order, dated 21- 8-2004 which was passed after providing an opportunity to the petitioner, whose Manager had appeared before the Controller and candidly admitted that no payment on account of rent had been made by the petitioner. In view of admitted and uncontested position, Controller was perfectly justified and duty bound in striking off defence of the petitioner and directing his eviction forthwith. This order though appealable under section 24 of the Act, 1963 before the High Court, instead of challenging it in appeal, the petitioner moved an application under section 151, C.P.0 and the incumbent Controller was persuaded to recall the order of eviction, which by reason of non- challenge and with passage of time had attained finality.
9. It is true that the respondent also did not challenge latter order before the High Court but the fact remains that such order being void ab initio, coram non judice and nullity in the eyes of law could be ignored. In any event, the successor incumbent of the office of Controller, after hearing the parties' counsel and realizing that there was absolutely no truth in the submission of the petitioner that he had paid a sum of Rs,6,46,800 in advance to the respondent covering the rent for the period up to 31-1-2006 was justified in recalling the order, dated 21-8-2004 illegally passed by his predecessor. While passing such order, Controller was impressed by admission of the petitioner in paragraph 14 in Suit No,368 of 2004 filed by him against the respondent in the Court of Vth Civil Judge, Karachi-South asserting that he had written a letter to the respondent to receive advance rent for a period of six months, which the latter refused to accept and the former now claimed that he had paid rent up to January, 2006. Be that as it may, learned Controller, while passing the impugned order, further observed that the petitioner from the commencement of eviction proceedings had played delaying tactics in order to retain the demised premises in his occupation and that too without the payment of any rent. This observation is perfectly justified and unexceptionable. This trend on the part of petitioner can only be deprecated.
10. On his part, Honourable Judge, in the High Court had also made a generous offer to the petitioner to deposit the arrears of rent as well as outstanding utility charges over Rs,94,000 within a reasonable time in order to enable him to contest the rent case on merits. The petitioner, however, did not show his willingness despite this fair proposal. High Court was, therefore, not persuaded by the argument that no enquiry was held before passing final order striking off petitioner's defence. We, feel, the High Court acted fairly, justly and in a fair and equitable manner.
11. After thorough examination and careful consideration of the submissions made on behalf of the petitioner, we are constrained to observe that the attitude of the petitioner from the day one has been completely negative and motivated by unfair desire to usurp the property by hook or crook. In the first instance, after payment of advance rent of 11 months, he neither paid any rent nor utility charges in respect of a double storey bungalow in Defence Housing Authority built over a plot of 1000 square yards. He went on adopting delaying tactics and at one stage succeeded in getting the order striking off his defence recalled by incumbent Controller of Rent without any lawful authority. It is inconceivable to believe that he had parted with an amount of Rs,6,46,800 in favor of the respondent without obtaining any receipt, though on earlier occasion, acknowledgement receipt in respect of payment of rent for a period of 11 months was executed by the landlord. It is high time that the Government should take steps for amendment in the provisions of Act, 1963 providing for appointment of Judicial Officers as Controller and Additional Controller of Rent under section 6 of the Act, 1943, instead of conferring quasi-judicial powers on Executive Officer of the Cantonment, who is generally not fully well-versed with the complexities of law but otherwise invested with the power to deal with very valuable property rights of the citizens owning properties in Cantonment areas throughout the country.
12. For the aforesaid facts, circumstances and reasons, we find absolutely no merit in this petition, which, on the face of the record is frivolous. It is accordingly, dismissed with costs.