' ZAHID HAMID, J.---The present Constitutional Petition has arisen out of order which was passed under sections 16(1) and 16(2) of Sindh Rented Premises Ordinance, 1979 whereby the arrears of rent as well as future rent was directed to be deposited with the learned Rent Controller in Rent Case No,298 of 2008.
2.. The terms opponent and applicant used below would carry their respective meanings with reference to the Rent Case No,298 of 2008.
3. It has been noticed that the rent case was filed against Malik Mazhar Awan and Mst. Nasim Bashir respectively arrayed as respondents Nos.1 and 2 in the title. It was claimed that the opponent No,1 was the tenant of the rented premises and he was obliged to make payment at the rate of Rs, 3,500 per month excluding the utility charges. It was further claimed that Malik Mazhar Awan regularly paid the rent from the date of execution of the tenancy agreement till it expired and thereafter the rented premises was sublet to his mother-in-law the opponent No, 2 without permission.
4. It was claimed that since 1-7-2007 the opponent No,1 in the said rent case did not pay a single penny and the dispute was referred to the Chairwan Panchayat Committee when a Sale Agreement was fabricated the opponent No,2 and the signature of the landlord was forged thereon, consequently it was being claimed that the opponent No,2 had purchased the rented premises and had advanced an amount of Rs, 300,000 (Rupees three lac only) leaving a balance of Rs, 400,000 (Rupees four lac only) to be payable as stipulated in the sale agreement and it was agreed that till the balance was cleared, she would continue to make the payment of rent at the rate of Rs, 2,000 per month to the applicant Raja Saleh Muhammad.
5. It seems that the opponent No,2 filed M.R.C. No,208 of 2008 and started depositing the rent at the rate of Rs,2,000 per month in favour of the landlord. On the other hand it has been claimed by the landlord as indicated above that the opponent No,1 was the tenant whereas the opponent No,2 assumed herself to have become a tenant on the basis of forged sale agreement" under which she claimed that she could make payment of rent of the premises at the rate of Rs,2,000 per month.
6. It appears that the opponent No,1 did not come forward to contest the rent case and instead the opponent No,2 filed the written statement and averred that the applicant was her landlord and owner of the rented premises. The opponent No,1 is stated to have intervened at the stage of appeal and he preferred his own F.R.A. No,208 of 2008 against Raja Saleh Muhammad. Another F.R.A. Which was filed by the opponent No,2 was consolidated with the first one and both were disposed of by same order whereby the defence of the opponent was struck off without mentioning whether the defence of opponent. No,1 or the opponent No,2 was being struck off.
7. From the perusal of the order which was passed by the learned Rent Controller under section 16(1) of Sindh Rented Premises Ordinance, 1979 it appears that the "opponent" was directed to deposit arrears of rent as well as future rent but no specific direction was given either to the opponent No, 1 or to the opponent No,2 to make such deposits with the Rent Controller after passing of such order and in the last operative para of the order passed under section 16(1) it was stated as follows:-- "I, therefore, allow this application with the direction to the opponent to deposit the rent amount at the rate of Rs,3,500 with effect from July, 2007 utpo date and the amount of Rs,2,000 per month deposited by the opponent in M.R.C. No,208 of 2008 is to be adjusted in said amount. The opponent is also directed to deposit the rent amount at the rate of Rs,3,500 for the month of January and February, 2009. The opponent is also directed to deposit the rent amount within the period of 30 days hereof and shall also liable to deposit future rent at the rate of Rs,3,500 on or before 10th of each calendar month. The disputed amount of Rs, 1500 per month is withheld till final decision of the case. The application stand disposed of in the above terms with no orders as to cost."
8. It may be emphasized that the alleged "rent" was being deposited at the rate of No,2,000 by the opponent No,2 in M.R.C. And not by the opponent No,1 who was admittedly the tenant.
9. In the above context it would also be advantageous to refer to the prayer passage of the rent case wherein direction was sought against the opponent No,1 i.e. Mazhar Awan who is claimed to be the tenant to hand over the vacant and peaceful possession of the demised premises as well as the opponent No,2 who is stated to be a sublettee. Even in the application under section 16(1) of Sindh Rented Premises Ordinance, 1979 it was not made clear as to against whom the order for depositing the rental arrears as well as future rent was being sought and the word 'opponent' without specifying which of the opponents such prayer was made.
10. On the basis of aforesaid order passed under section 16(1) of Sindh Rented Premises Ordinance, 1979 the defence was struck off vide order dated 24-10-2009 in which it was observed that the opponent, without specifying which of the two opponents, had intentionally failed to comply with order dated 31-7-2009 passed under section 16(1) of Sindh Rented Premises Ordinance, 1979, directed against the unspecified opponent who was asked to vacate the demised premises within 30 days. This order was upheld in F.R.A. No,81 of 2010 preferred by the opponent No,2 and F.R.A. No,96 of 2010 preferred by Malik Mazhar Awan. However, the learned 1st Additional District Judge Karachi
(East) who disposed of the appeal and observed that the impugned order was passed after proper hearing and since the order of depositing of rent under section 16(1) of Sindh Rented Premises Ordinance, 1979 was not complied with the defence was rightly struck off under section 16(2) of the said Ordinance and further that no illegality had been found on record.
11. It appears that the opponent No,1 appeared in Execution No,23 of 2010, and filed application under section 12(2) read with section 151, C.P.C. Pleading that orders dated 3-7-2009 and 21-10- 2009 had been secured by fraud and misrepresentation as he did not have any relation of landlord and tenant and claimed that he had paid the agreed rent under the tenancy agreement upto the period till the said agreement expired and subsequently he had handed over the physical possession of the flat to Raja Saleh Muhammad and that after he had vacated the rented premises he came to know that same had been purchased by the opponent No,2. Be that as it may, this application was dismissed vide order dated 16-7-2010.
12. Since according to the clear admissions made in the application under section 15 of Sindh Rented Premises Ordinance, 1979 the opponent Nos.1 and 2 were joined and the opponent. No, 1 did not file his written statement, therefore, the direction ought to have been given to the opponent No,1 to file his written statement and if it were not filed, the matter could have been proceeded against him ex parte. On the other hand Mst. Nasim Bashir, at any stage of the proceedings, was not admitted to be the tenant, yet the alleged rent deposited by her under the M.R.C. At a different rate was allowed to be adjusted. It was incumbent upon the Rent Controller to clearly saddle, either the opponent No, 1 or 2, with the liability as the circumstances of the case could permit in accordance with law to make payment of arrears as well as future rent but the order passed under section 16(1) was quite uncertain inasmuch as it was not mentioned as to whose defence was being struck off.
Order of ejectment, therefore, could have not followed.
13. This petition is accordingly allowed to the extent that the matter is remanded to the learned Rent Controller with the direction to the parties to appear before him on 10-12-2010 and to proceed with the rent case from the stage of written statement after fresh notice to the opponent No,1 in the Rent Case and pass speaking and definite orders whenever the stage may so warrant. Both the impugned orders as well as order passed under section 16(1) of Sindh Rented Premises Ordinance are set aside. As a result the instant petition stands disposed of in terms stated above. The amount of alleged "rent" deposited by the opponent No,2 who is stated to be a sub-letter shall be paid to the landlord as if the same were mesne profit if it were held that she was not the tenant for adjustment against any claim made in any civil court between the parties and without prejudice to the respective rights of the opponent No,2 and the landlord to establish their respective pleas before the Rent Controller.
' Office to issue notice within 3 days hereof to the parties with the direction to them to appear before the learned Rent Controller concerned on 10-12-2010.