' ANWAR ZAHEER JAMALI, J.---In the above titled appeals, identical short controversy as regards purported non-compliance, of two rent orders dated 25-10-2007, passed by the Rent Controller under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (in short the Ordinance of 1979) or otherwise is involved, hence we propose to dispose of both these appeals by this common judgment.
2. Briefly stated, common relevant facts of the case are that the appellant had filed ejectment applications against the respondents No.1 on the plea of commission of default in the payment of rent etc. During the pendency of such proceedings, on two separate but identical applications under section 16(1) of the Ordinance of 1979, filed by the appellant, rent orders were passed by the Rent Controller on 25-10-2007, precisely, directing the respondents No.1 for regular deposit of future monthly rent from the month of November, 2007 onward on or before the 10th of each calendar month, while the claim for payment of water charges, KPT ground tax and property tax was deferred to be decided on merits after the evidence is led in the rent cases by the parties.
3. In the above background, later on separate applications under section 16(2) of the Ordinance of 1979 were moved by the appellant before the Rent Controller in both the rent cases on the ground that the rent for the months of December, 2007, January, 2008 and June, 2008, was not deposited by respondents No.1 within the stipulated period in terms of the rent orders dated 25-10-2007, therefore, their defence was liable to be struck off.
4. After receipt of objections to these applications, Rent Controller, in her two orders dated 20-11- 2008, came to the conclusion that the plea of appellant about non-deposit of rent by respondents No.1 for the disputed three months in time, as noted above, was correct, and accordingly their defence was struck off. Such orders, when challenged by respondents No.1 through F.R.A. Nos.12 and .18 of 2008, were sustained and accordingly their appeals were dismissed, vide orders dated 27-5- 2009.
5. The respondents No.1 aggrieved by the two orders referred to above, then invoked the jurisdiction of the High Court of Sindh under Article 199 of the Constitution, vide C.Ps. Nos.S-374 and S-368 of 2009, which were allowed by impugned judgments dated 19-2-2010, passed by learned Single Judge in Chambers of the High Court of Sindh, with the observations that the view taken by both the Courts below regarding non-deposit of rent by respondents No.1 in time was erroneous, as the pay orders for the relevant three months were deposited by them with the National Bank of Pakistan as per challans issued by the (Nazarat), office of the Rent Controller within time i.e. On the 10th of each calendar month, thus delay, if any, in the collection of payment of these pay orders cannot be attributed to respondents No.1 to hold them defaulter in payment of rent, within the meaning of section 16(2) of the Ordinance of 1979. Consequently, vide order dated 19-2-2010, the two orders passed by respondents Nos.2 and 3 herein, striking off the defence of respondents No.1 were set aside.
6. Ms. Noor Zehra Karim, Managing Trustee of the appellant Trust, who appeared before us in person, made her submissions to show that for all three relevant months of default actual realization of rent from the respondents/tenants had taken place on the 12th of each month, instead of on or before the 10th of each month, as contemplated in the orders of the Rent Controller dated 25-10-2007, therefore, the Rent Controller and the appellate Court rightly struck off their defence. But contrary to it, the view taken by the Honourable High Court of Sindh in favour of respondents No.1, accepting their petitions and disallowing her prayer for striking off their defence is unwarranted by law. In support of her plea, she placed reliance on the following cases:-
(i) State Life Insurance Corporation of Pakistan v. Kotri Textiles Mills 2001 SCM R 605
(ii) Asad Brothers v. Ibadat Yar Khan(1991 SCM R 986)
(iii) Noor Muhammad v. Muhammad Bhai (1984 CLC 2443)
(iv) Nazir Ahmad v. Holaram (1985 CLC 41)
7. Conversely, Mr. Khalid Javed Khan, learned Advocate Supreme Court for the respondents made referene to certain documents placed on record by him along with his application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, to show that pay orders of rent for the disputed three months of alleged default i.e. December, 2007, January, 2008 and June, 2008, were got prepared by the respondents No.1 in both cases, on 30-11-2007, 27-12-2007 and 2-6-2008 respectively i.e. Much before the cut off date on or before the 10th of each calendar month. He further made reference to the original challans issued from the office of the Rent Controller, Karachi West dated 8-12-2007, 9- 1-2008 and 8-6-2008, to show that all along the respondents No.1/tenants were vigilant in the payment of rent in time and on each occasion such challans, duly supported with the relevant pay orders, were deposited in the National Batik of Pakistan on the 10th of each calendar month, therefore, if there was any delay in the collection of amount of these pay orders, respondents/tenants cannot be held responsible for it, and for all practical purposes, such payments shall be deemed to have been made by them on 10th of the each calendar month. In support of his submissions, learned Advocate Supreme Court placed reliance on the following cases:--
(i) Haydari Constn. C. Ltd. v. Bank .Of C. And C.I.O. Ltd. (1991 CLC 149).
(ii) Erasmus Marine Company Ltd. v. Government of Pakistan (1999 CLC 2010).
(iii)Hussain Ginners Ltd. v. Customs Central Excise and Sales Tax Appellate Tribunal (2007 PTD 2563).
8. We have carefully considered the submissions made by and on behalf of the parties, and also perused the material placed on record as well as the case law cited at the Bar. There is no cavil to the proposition of law that unless strict compliance of order of the Rent Controller passed under section 16(1) of the. Ordinance of 1979, is made by the tenant, he makes his defence liable to be struck off. Thus, now the two points for consideration, which remain to be resolved in these appeals before us, are whether the rent orders dated 25-10-2007 were properly nterpreted/understood by the Rent Controller and the appellate Court i.e. Respondents Nos. 2 and 3, keeping in view: the language of sections 10, 15(2)(ii) and 16(1)(2) of the Ordinance of 1979, and whether the dates on which the pay orders were got prepared by the tenant or challans for payment in Bank were obtained from Office of the Rent Controller or the dates when the tenant had deposited those pay orders with the Bank will be the relevant dates to meet the mandate of rent orders or the dates on which the Bank had actually received/collected payments of such pay orders deposited by the tenants.
9. For examining the above noted legal aspect of the case (point No.1), it will be useful to reproduce here some relevant provisions from the Ordinance of 1979, relating to payment of rent qua default, which read as under:- "(10) Payment of rent.---(1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month -next following the month for which it is due.
(2) ...............
(3) ...............
(4) ...............
(15) Application to Controller.---(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.
(2). The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that: the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of which agreement, within sixty days after the rent has become due for payment; ' Provided that where the application made by the landlord is on the sole ground mentioned in this clause and the tenant on the first day of hearing admits his liability to pay the rent claimed from him, the Controller shall, if he is satisfied that the tenant has not made such default on any previous occasion and the default is not exceeding six months, direct the tenant to pay all the rent claimed from him on or before the date to be fixed for the purpose and upon such payment, he shall reject the application;
(iii) to (vii) .............
(3).................
(4).................
(16). Arrears of rent.---(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as lie 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: ' Provided that the Controller may direct that the arrears of rent and approximate rent may be paid to the landlord through pay order or by any other mode agreed to by the parties or as directed by the Controller.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
' Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller.
A plain reading of the above reproduced sections from the Ordinance of 1979 goes to show that section 10 (ibid) deals with the payment of rent by the tenant to the landlord and provides that in the absence of any date fixed between the landlord and tenant by mutual agreement, rent shall be paid not later than 10th of month next following the month for which it is due. The language of this section makes it abundantly clear that a tenant is not expected to make any advance payment of rent to the landlord, except when mutually agreed between them under some agreement. Section 15(2)(ii) of the Ordinance of 1979 deals with the question of default in the payment of rent by the tenant as one of the ground for his eviction. It provides two eventualities for this purpose i.e. Where the time for payment of rent is fixed by mutual agreement between the tenant and landlord, the rent is payable within 15 days after the expiry of said period, otherwise within 60 days when the rent has become due for payment. The proviso to this section, added by Ordinance XIV of 2001, deals with a concession provided to the tenant in case the default in payment of rent committed was not exceeding a period of six months; it was the first instance of commission of such default, and this fact was admitted by the tenant on the first date of hearing. In such a situation, the Rent Controller is vested with the powers to fix the date for the purpose of such payment due and, upon compliance, reject the eviction application, if filed on the sole ground of such default in payment of rent by the tenant. The next provision of law referred to above i.e. Section 16, deals with the powers of the Rent Controller to pass an order, after holding summary enquiry as deemed fit by him for determining the arrears of "rent due", directing the tenant to deposit the same within such period as the Controller deems fit in this behalf. It also empowers the Rent Controller to direct the tenant to deposit future monthly rent regularly on or before the 10th of every month till final disposal of the case. Proviso to subsection (1), added by Ordinance, XIV of 2001, further empowers Rent Controller to pass an order regarding payment of arrears of rent and approximate rent to the landlord through pay order or any other mode agreed between the parties; subsection (2) to section 16 deals with the penal consequence of non-compliance of rent order passed in terms of subsection
(1) passed by Rent Controller, and empowers the Rent Controller to strike off the defence of the tenant and pass an order in favour of landlord to put him in possession of rented premises within specified period on that account Further subsection (3) empowers the Rent Controller to deal with the disbursement of the rent deposited by the tenant in the office of the Rent Controller in the manner he deems fit in this behalf. An important feature of similarity in the above provisions of Ordinance of 1979, is that the question of default in payment of rent is to be gauged on the payment or otherwise of "rent due" and not the advance rent, which is alien to these provisions of law, except under a mutual agreement. Keeping in view this legalposition, when we revert to the facts of the instant appeals, it is surprising, rather shocking to notice that none of the three Courts below adverted to the controversy involved in the case in its true perspective, as for this purpose they did not care to apply their mind to go through the provisions of section 10 and section 16(1) and (2) of the Ordinance of 1979, applicable to the case, and the relevant terms of the identical orders under section 16(1) of the Ordinance of 1979 passed in these two cases on 25-10-2007, which read as under:- " ,..... It is pertinent to mention here that during the arguments, it was informed by both the sides, that the Opponent is presently depositing monthly rent of the rented premises in M.R.C. No.2006 and the Applicant is receiving the same. As such, report was called from C.O.C. Of this Court in respect of the M.R.C. Previously filed by the Opponent as well as the present M.R.0 which is pending before this Court. The report of the C.O.C. Is available on record which reveals that the Opponent is continuously depositing rent in the said M.R.C.
' So far, as the prayer of the Applicant in respect of depositing of water charges, KPT ground tax and property tax is concerned, it is the matter which requires evidence of both the parties, therefore, the same shall be decided on merits.
' Keeping in view the circumstances of the case, the tenant is directed to deposit future rent in the present case every month on or before 10th of each calendar Month from the month of November, 2007. In case of default, appropriate order, as per provisions of law, shall be passed. The present application stands disposed of in terms of the above order. However, there is no order as to cost.
Orders accordingly.".
A bare reading of this order reveals that on one hand it contemplated payment of arrears of rent by way of adjustment of rent already paid by the tenants/respondents No.1 in the miscellaneous rent case, which was also withdrawn by the appellant/landlord, and on the other hand it directed the tenants/respondents No.1 for payment of future monthly rent from the month of November, 2007, on or before the 10th of each calendar month i.e. On or before the 10th of each calendar month next following, when in terms of section 10 or 15(2) the rent for the previous month will become due. It is quite obvious that the provisions of section 16(1) of the Ordinance of 1979 do' not permit the Rent Controller to pass an order for advance payment of rent for current months. In case the Rent Controller had taken reasonable care at the time of passing the two orders under section 16(1) of the Ordinance of 1979, she could have clarified this legal position in her order regarding payment of current monthly rent, by incorporating the words "next month", "coming month", "subsequent month" or "succeeding month". In the instant case, oblivious of such legal aspect, the Rent Controller and the first appellate Court, both proceeded on misinterpretation of the rent order under misconception of law, that the rent for three alleged months of default i.e. December, 2007, January, 2008 and June, 2008 was payable in advance by the 10th of each calendar month, though in accordance with law, to avoid commission of default, rent for the month of December, 2007 was payable by 10th of January, 2008, when it became due, and similarly the rent for the month of January, 2008 and June, 2008, in the succeeding months of February and July, 2008 respectively. Thus, in the instant appeals, from no stretch of imagination the respondent No.1 can be held defaulters in the compliance of rent orders dated 25-10-2007, as alleged by the appellant.
10. We may also observe here that although there is no ambiguity to this legal position, but even if for argument sake, we examine the question of default qua striking off the defence of a tenant on the premises as claimed by the appellant, firstly, when two equally logical interpretations of a rent order, entailing penal consequences were possible, as may be in the instant case, then the one favourable to the subject was to be given preference i.e. No contemplation for payment of any advance rent was to be deduced from the language of such rent order to the prejudice of tenants, secondly, as rightly held by learned Single Judge in Chambers of the High Court of Sindh in his impugned judgment dated 19-2-2010, deposit of pay orders in the Bank on the 10th of each month, under valid challans issued by the Nazarat office was due compliance of the rent orders by the tenants, irrespective of the fact when payment of such pay orders was collected or realized from the concerned Bank by its encashment.
11. In view of what has been discussed above, any reference to the cases cited at the bar will also be a futile exercise, having no relevancy/nexus to the controversy in hand.
12. Upshot of the above discussion is that looking at the case of the appellant from any angle, no case for commission of default in compliance of rent orders dated 25-10-2007 is made out. Rather very applications under section 16(2) of the Ordinance of 1979 moved by the appellant before the Rent Controller were misconceived. Accordingly both these appeals, being devoid of merit, are dismissed.