' This second appeal has been filed against the concurrent decision of IX Civil Judge and Rent Controller, Karachi dated 29-11-1975 and the Additional District Judge, Karachi, in appeal dated 22nd May, 1978, whereby he appellant was found guilty of default in payment of rent and consequent on-compliance of the tentative rent order of the learned Rent Controller. He facts briefly stated are as under :
2. The respondent is landlord and the appellant is tenant in respect of house situated on Plot No, 2 in Block 12, Federal "B" Area, Karachi, on a monthly rental of Rs, 450 payable in advance, that is, before 10th of each month to which the rent relates. Under the agreement of tenancy the tenant had to pay water, electricity and conservancy charges.
3. The respondent filed application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) in the Court of Civil Judge and Rent Controller, on 6th March, 1974, alleging that the tenant had been very irregular in the payment of rent and had been finding pretexts to avoid full payment of rent by adjusting amounts towards repair and renovations allegedly effected from time to time without any previous permission of the landlord. It was stated by the landlord that the tenant had deducted a total sum of Rs, 736.75 out of rent during the period from September, 1972 to October, 1973 which worked out at about 14 per cent of the annual rent. It was the complaint of the landlord that the cheques issued for payment of rent were not honoured and were returned by the bank thrice. It was alleged by the landlord that the tenant in spite of demands and requests had failed to pay the agreed water nd conservancy charges. The respondent landlord in his application, therefore, alleged that the tenant had deliberately avoided payment of rent for the months of December, 1973, January, 1974 and February, 1974.
4. As a further ground for ejectment it was urged that the wife of landlord who suffers from rheumatoid, arthritis and chronic backache, required accommodation at Karachi.
5. In the written statement filed on behalf of the tenant the plea was taken that the premises needed extensive repairs and every time when the landlord was asked to carry out the same, the tenant was requested to do so and get the amount adjusted out of the rent. It was the ease of the appellant that she had spent the amounts deducted from rent on repairs with the consent and permission of the landlord. With regard to cheques being dishonoured by the Bank it was contended that the cheques were not presented on due dates by the landlord. In reply to the allegation about non-payment of water and conservancy charges the tenant stated that she had been asking the landlord for the bills but the same were never made available to her. The appellant had taken the plea that the application was filed against her due to greed and avarice of the landlord/his attorney who had refused to accept rent and had been pressing her for vacating the premises on false pretext of requirement for personal use. She had therefore, been put to the necessity of filing application dated 8-3-1974 (Misc. Application No, 606/74) for permission to deposit the rent in Court. The learned Rent Controller, passed tentative rent order under sectioa 13(6) of the Ordinance, directing the tenant to deposit arrears of rent calculated with effect from December, 1973 to August, 1974, amounting to Rs, 4,592.62, plus conservancy and water charges of Rs, 542.62 before 15th November, 1974, and that future rent from September, 1974 should be paid at the rate of Rs, 450 and deposited before 15th of every following calendar month till decision of the matter.
6. On 13-10-1975, the landlord filed an application under section 13(6) of the Ordinance, praying that since the tenant had committed wilful default in depositing monthly rent in the Court without any justification and had neglected, and avoided to pay rent for the months of September, 1974, June, 1975, July, 1975 and August, 1975, within the statutory period specified in contraven tion of the tentative rent order dated 21-9-1974, her defence may be struck oft and she may be directed to hand over vacant possession of the premises.
7. The learned Rent Controller granted the application for reasons shown in his order and directed the appellant to hand over vacant possession of the premises to the landlord within one month of the date of the order. The first appeal filed against the aforesaid order of the learned Rent Controller was dismissed by the Additional District Judge, Karachi on 29th September, 1974.
8. A contention was raised on behalf of the appellant that the First Appellate Court failed to appreciate that the copy of the order of the Rent Controller, was not available to appellant as the file was called by the First. Appellate Court and otherwise the same was not necessary as the entire record of the Lower Court was before the Appellate Court. This contention is withA regard to the finding of the learned Additional District Judge, that the appellant had not only failed to file the certified copy of the order but had also failed to pay costs in compliance with the order of the Court and in view of the aforesaid position in the absence of dispensation of certified copy of the order the appeal was incompetent and not maintainable. Before discussing the legal position with regard to this contention, it is observed that the impugned judgment of the Additional District Judge shows that the appeal was not dismissed only on holding it to be not maintainable but it was also a decision on merits. The learned counsel for the appellant relied upon the decision of the Lahore High Court in Muhammad Dawood v. Abbas Ali (1 wherein it was observed that section 141 of the Civil Procedure Code, 1908 applies to procedure prescribed in Court to suits, to original proceedings in the nature of suits and not to appeals and that the provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959, make specific mention with regard to provisions of C. P. C. Intended to be applied to proceedings under the Ordinance. It was further observed that the Rent Controller is left free to adopt any procedure and the provisions of C. P. C.
However, apply to appeals in the High Court. It was observed that the essentiality of calling for the record had been emphasised in subsection (3) for the reason that there is no provision requiring the appellant to file the copy of the impugned order. It was further observed that the provision is different from the provision of Order XLI, rule 11, C. P. C. Which leaves it to the discretion of the appellate Court to send for the record if it considers proper to do so.
9. In view of the decision referred to above with which I am in respects agreement, the finding of the learned Additional District Judge, with regard to non-maintainability of the appeal before him on the ground of failure to supply the certified copy of the order of Rent Controller, cannot {{FOOT NOTE}}
(1) PLD 1975 Lab. 699 {{FOOT NOTE}} sustained. However, as already observed the learned Additional District judge, in the: judgment has discussed the appeal on merits and before, his aforesaid finding has no effect on the decision given by him.
10. The main ground urged in this appeal is that order of the learned rent Controller, dated 20th September, 1974, was illegal and ultra vires nasmuch as in the amount directed to be paid as arrears of rent, an amount f Rs, 542.62 which was towards conservancy and water charges bad been ncluded. Exception is taken to inclusion of the conservancy charges specially s the same will not be deemed to be rent under explanation to subsection (2) f section 13 of the Ordinance.
11. The learned counsel for the appellant has relied upon the Supreme ourt decision in Major Syed Wallayat Khan v. Muzaffar Khan and 2 others (1), Yousuf Ali v. Muhammad Aslam Zia (2) and also the decision of the Lahore High Court in Malik Barkhurdar Khan v. The Additional Land Commissioner, jab and 24 others (3), in support of his contention that since the tentative rent order was defective, non-compliance with any part of the same could of be considered to be default within the meaning of section 13(6) of the ordinance.
12. The alleged default for which application under section 13(6) of he Ordinance was made by the landlord specifically mentions the default n payment of rent of for months and it was in respect of tentative order with regard to future rent of which the infringement was complained of. A reference to the record of proceedings before the learned Rent Controller, shows that he impugned tentative rent order was passed after hearing the Advocates of he parties and there is a further mention in it that the Advocate for the enfant (appellant herein) admitted the correctness of the accounts as given y the landlord which included the conservancy and water charges of s. 542.62. In the written statement filed on behalf of the appellant at that stage it was stated that she has been asking several times for the bills of ,conservancy and water charges and that she was ready and willing to pay he same whenever ordered by the Court. The learned counsel for the respondent has argued that in view of the aforesaid admission in the written statements and the fact that the charges for conservancy and water were eluded in the amount shown as arrears of rent due in the tentative rent red after the same had been admitted on behalf of the appellant by her advocate and further in view of the fact that the default complained of by he landlord was not for payment of arrears of rent which amount including lie conservancy and water charges had been already paid without protest y the appellant, she is estopped from raising the plea that the order was legal and without jurisdiction.
13. The learned counsel for the appellant contended that in any case nice the tentative rent order was defective the matter may be remanded to the Rent Controller for proper and legal decision.
There is no dispute about the monthly rent of Rs, 450 which was payable by the tenant to the landlord and the part of the tentative order with regard to the arrears of rent which incidentally included the conservancy charges for a particular period was complied with without protest and the payment made. The operative part of the order With regard to future rent as already stated was without any dispute as at no stage it had been denied by the tenant that Rs, 450 was the amount of monthly rent fixed. In the decision of the Lahore High Court in Mst. Khursheed Bibi and {{FOOT NOTE}}
(1) PLD 1971 SC 184 (2) PLD 1958 SC 104 (3) PLD 1977 Lab. 424 {{FOOT NOTE}} another v. Ahmed and 2 others (1) it was inter alla observed that remand o cases where there is sufficient evidence on record should not be lightly directed and the appellate Court should decide the case on merits. It is apparent on the face of the record that there is enough material to give a decision a to whether there was default in the payment of rent as alleged in the application under section 13(6) of the Ordinance. The details of rent deposited for the period of for months mentioned in the application have been given in the report of the Nazir, which is on record of the case. The only plausible defence taken by the appellant before the first appellate Court an also repeated before this Court is that she used to give the amount of rent to a person working as Compounder in her Dispensary for depositing in Court and that the delay was on the part of her employee. The learned Additional District Judge, has discussed this aspect of the matter in hi judgment and held that the tenant could not shift her liability for payment of the rent by the date fixed in the order, to her servant and that it was her duty to have complied with the order of the learned Rent Controller in that respect.
14. The explanation about the appellant being a patient of diabete and her husband working outside Karachi, cannot be considered as sufficient excuse for persistent late payment of rent.
15. With regard to the contention that while directing that deposit of rent the learned Rent Controller, did not consider the actual amount du against the appellant and had failed to give deduction of amount of Rs, 1,800 for which a cheque had already been given to the respondent, the learned Additional District Judge, while dealing with the plea observed that the rent application was filed on 6-3-1974, whereas the cheque for Rs, 1,800 was sent after filing of the application on 18-4-1974 and therefore, the landlord nerve encashed the same and the cheque was brought on record and was considered by the Rent Controller, before passing the tentative rent order. The record of the case contains evidence to show that the appellant was habitual irregular in the payment of rent and such irregularity cannot be condone on the plea of personal ailment or lack of proper arrangements. I have therefore, no reason to differ from concurrent finding of the learned Rent Controller, and the Additional District Judge, with regard to the default is payment of rent and I accordingly dismiss the appeal. In the circumstances of the case, however, no order is being passed with regard to costs. The appellant is further directed to hand over the vacant possession of the premises in question to the landlord within two months from the date of this judgment. {{FOOT NOTE}}
(1) PLD 1979 Lah. 846 {{FOOT NOTE}}