1. ' B. G. N. KAZI, J.-This appeal has been filed against the judgment of IV Additional District Judge, Karachi, dismissing the 1st Appeal No, 467 of 1976 of the appellant and order dated 18th October, 1976, passed by the 2nd Rent Controller, Karachi, allowing the application of respondent No. 1, under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, striking off the defence of the applicant and directing him to hand over vacant possession to the respondents.
2. The facts leading to the instant appeal are as under :- Mirza Abrar Hasan Qazilbash, landlord owner of Premises Nos. 122-123, Usmania Colony, Karachi. He filed an application under section 13 (2) of the West Pakistan Urban Rent Restriction Ordinance, 1959 in the Court of II Civil Judge and Rent Controller, Karachi, against Muhammad Azam Khan (the appellant herein) his tenant, in respect of the above-mentioned premises, seeking his ejectment on the ground of default in the payment of rent from January, 1973 to August, 1975 at the rate of Rs, 350 per month. The appellant in his written statement admitted that he was tenant of the premises owned by Mirza Abrar Hassan Qazilbash,- but denied that monthly rent was Rs, 350 per month. He asserted that the rent was Rs, 130 per month inclusive of water charges, which rent he had been paying for the last about five years (as asserted on 4-3-1976). He also denied the default in payment of rent and stated that he had regularly paid the rent upto June, 1975 but the landlord had never issued receipt for the rent received by him and he had not insisted on getting the receipts due to the cordial relations between the parties. Sometime in July. 1975 however, the landlord wanted him to vacate the premises and had even tried to evict him by force. The appellant therefore obtained permission to deposit rent in Court under Rent Application No, 2877/75 and had since then been continuously depositing the monthly rent in Court.
2. ' It was further the case of appellant that apprehending forcible eviction he filed a suit for permanent injunction against the applicant landlord restraining him from evicting him by force which led to the landlord filing eviction application before the Rent Controller.
3. The Rent Controller passed a tentative rent order on 7-4-1976. It was observed by the learned Rent Controller that there was dispute about the rate of rent and period of arreaRs, Whereas according to the applicant land lord the rental was Rs, 350 and the tenant was in arrears since January, 1973, according to the tenant the rate was Rs, 130 per month. It may here be observed that although in the written statement as already stated above the tenant (appellant herein) had stated that he had paid rent up to June, 1975 and thereafter he had been depositing the same in Court. In the tentative order the learned Rent Controller through some misconception observed that according to opponent the period of arrears is up to June, 1975 and thereafter he has deposited the arrears in Rent Case No, 2877/75 up to February, 1976. The learned Rent Controller, observed that since none of the parties had shown the actual rental paid by the opponent or received by the applicant and it would be proper that the rent is determined after the parties led evidence. He tentatively fixed the rent at the rate of Rs, 130 per month and period of arrears from 1st January, 1973 till 31st March, 1976.
4. He directed the opponent to deposit Rs, 5,070 less already deposited in Rent Application No, 2877/75, before 15th of June, 1976. The opponent tenant (appellant herein) was further directed to deposit the future rent at the rate of Rs, 130 per month before 15th of each month.
5. ' The applicant made application under section 152, C. P. C. For review of the said order but the same was dismissed by the Rent Controller on the ground that Civil Procedure Code is not applicable to Rent cases. A certified copy of the application has been produced and shows that it was pointed out that in the said order in Line No, 9 the words "upto June, 1975" should be corrected to "after June, 1975", as according to the written statement and the statement of the Advocate for the opponent at the time of passing the order supporting the statement of account filed in Court, the stand of the opponent bad been that rent was paid by the appellant up to June, 1975 directly and from July, 1975 by deposit in Court. After taking the legal ground that provisions of C. P. C. Did not apply the learned Rent Controller did not consider that the order passed by him was erroneous.
6. ' The respondent No. 1 moved application under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on which the defence of the appellant was struck off by the learned Rent Controller directing the appellant to hand over vacant possession of the premises within two months.
7. ' The appellant then filed 1st Appeal which was originally filed against Mirza Abrar Hassan Qazilbash, but since he died during the pendency of the appeal his L. Rs, were brought on record as respondents. It was contended on behalf of the appellant that the order dated 7th April, 1976 passed by the learned Rent Controller was illegal as the appellant was not in arrears of rent and his direction for deposit of rent was consequently illegal and improper. The learned Additional District Judge, however, observed that the learned Rent Controller had accepted the version of respondent as there was only the contention of the appellant that he had paid rent before July, 1975 direct and at the stage of tentative rent order the Rent Controller has not to hold detailed enquiry for ascertaining the rate of rent and period of arrears which would have been determined and decided ultimately.
8. Mr. Shahenshah Hussain, the learned counsel for the appellant contends that since the tentative order was passed when evidence had not yet been recorded and the contention of the landlord about default was being altogether challenged the normal standard of proof should have been applied in view of the denial with regard to default in the payment of rent with regard to the entire period alleged by the landlord in all fairness an order of furnishing security and with regard to payment of future rent should have met the ends of justice. Insistence regarding payment of arrears of rent for a long period could defeat the ends of justice even before the allegation is determined by recording of evidence. The contention deserves serious consideration as, section 13
(6) of the Ordinance, provides that if there is dispute about the amount of rent due, or the rate of rent, the Controller shall determine such amount approximately. When there is an assertion denial in respect of arrears of rent due it cannot be considered to be approximate determination, if the version of one party is adopted, especially as it can prevent a just an proper decision of the matter if the party concerned due to any reason cannot meet the sudden demand of a sizable amount of money without deposit of which the defence is to be struck off.
9. 'It is further contended that it was the case of the appellant that he had paid all the rent due and therefore he is entitled to an opportunity to prove the payment which cannot be done if his defence is struck off.
10. ' It is true that the appellant did not adduce evidence before the Rent Controller about payments of rent made before he started depositing the same in Court and there was no documentary evidence. The learned Additional District Judge observed as under :- "Learned Rent Controller while passing the tentative rent order accepted the version of the appellant in respect of rate of rent and in respect of period of arrears learned Rent Controller accepted the version of the respondent. The contention of the learned Advocate for the appellant is that because he started depositing rent in Court from July, 1975 hence it should be presumed that the appellant had made payment of prior period to the respondent. His further contention was that the respondent should have proved that the appellant had not made payment from 1-1-1973 to June, 1975, at the stage when tentative Rent Order was passed. The contentions raised by the learned Advocate for the appellant have no force. At the stage of passing tentative rent order the Rent Controller has not to hold detailed enquiry for ascertaining the rate of rent and period of arreaRs, Controller has to consider t material brought before him. In the present case the appellant's has not produced any material which could show that he had paid ren upto June, 1975.
11. His plea that he was not being issued rent receipt would have been considered after the evidence was adduced by parties. The question about the period of arrears and default its matter which has to be decided ultimately by the Rent Controller after the evidence is recorded."
12. ' The sequence of events is that the tentative rent order was passed o 7-4-1979 to deposit arrears of rent before 15-6-1976. The appellant challenge the order firstly by moving application under section 152, C. P. C. On 3-5-197 on which order was passed on 15-9-1976. Before the passing of the aforesaid orders the respondents moved application under section 13 (6) of the We Pakistan Urban Rent Restriction Ordinance, 1959. It is therefore, argued that since the order was being challenged no compliance with it was done.
13. ' The learned counsel for the appellant has relied on the decision of Sewn Appeal No, 57 of 1975, Ikram-ud-din v. Syed Mahboob All (1), specially on the observations in paragraph 5 thereof which read as under :- "It has been contended that it was the tenant's case throughout that had paid rent up to November, 1972 and that he was entitled to a opportunity to prove this payment before his defence was struck off on the ground that the order under subsection (6) of section 13 which has directed him to deposit rent up to November, 1972 had not been complied with. In other words, the contention was that it is always open to a tenant to show that an order for deposit of tentative re made under subsection (6) of section 13 was factually incorrect and he did so demonstrate there would be no occasion to strike off it defence. The contention has force though I must refer to Mr. Siddiqui contention in reply that the tenant did not before the Rent Control lead any evidence to prove that he had paid rent up to November, 197 This is correct but I must take notice of the fact that until the decision of the Supreme Court of Pakistan in the case of Ibrahim v. Muhamm, Hussain the view that prevailed was that an order for deposit tentative rent made under subsection (6) of section 13 was appealable and if not appealed against the only remedy left to the tenant was when his defence was sought to be struck off, that for sufficient cause' he was prevented from complying with that order. In the circumstances the tenant's omission in not leading the evidence in the preset case in support of his plea that rent up to November, 1972 had be paid is understandable."
14. ' In the instant case on similar considerations the appellant's omission not leading evidence to show payments of rent before July, 1975 should not be considered against him. It is also doubtful whether the acceptance of t contention of the respondent with regard to arrears of rent in the face dispute in that regard by the appellant could be considered determination amount approximately within the meaning of section 13 (6) of the Ordinance.
15. ' The result is that this appeal is allowed and the matter will go back the Rent Controller at the stage at which making of application and {{FOOT NOTE}}
(1) PLD 1978 Kar. 145 {{FOOT NOTE}} ' section 13 (6) for striking off defence was pending and the appellant will have the opportunity to prove his case about rent having been paid up to June, 975 and therefore, the tentative order for deposit of arrears of rent was not alid or proper order and its non-compliance therefore, cannot result in his defence being struck off. In the circumstances there will be no order as to costs.