' This is an appeal seeking to call in question an order of the 1st Senior Civil Judge and Assistant Sessions Judge, Karachi, dated 16th September, 1981 in Rent Case No, 6396, 1980. There is a connected appeal, bearing No, F.R.A. 589/1981, in which the facts and issues are the same. This arises out of an order in Rent Case No, 6397/1980, decided by the same learned Judge on the same day, and by a common order, I propose to dispose of both these appeals by a single order.
' The facts, briefly, are that the appellant is a tenant of the respondent, and an application was made by the respondent seeking eviction of the appellant under section 10 of the Sind Rented Premises Ordinance. During the pendency of the application, the Controller passed an order in compliance with section 16 of the Sind Rented Premises Ordinance, directing the appellant to deposit tentative rent. It may be pointed out that in both the cases, there was a dispute in regard to rate of rent, for the appellants/tenants stated that the rent was Rs, 45 per month, whereas the respondent/landlord claimed the rent at the rate of Rs, 200 per month. Since averments were oral, the learned Senior Civil Judge tentatively fixed the rate of rent at Rs, 100 per month, and directed the appellants in both the cases to deposit such rent. It is this order, directing the appellants to deposit the arrears of rent, which is challenged before this Court.
' When this matter was placed before me for admission on 1st December, 1981 1 had pointed out to Mr. Badruduja Khan that it was doubtful if such an appeal was maintainable under section 21 of the Sind Rented Premises Ordinance. The learned Advocate stated that, in similar circumstances, several other appeals had been admitted, and he requested for time, so that the same could be traced out in the office. Mr. Badruduja Khan has made a statement before me that he has not been able to trace out any case in the office, in which an appeal may have been entertained in this Court against an order of deposit of rent.
' The point that requires consideration is whether this appeal is maintainable. Section 21 of the Sind Rented Premises Ordinance states that any party aggrieved by an order, not being an Interim Order, made by the Controller may, within thirty days of such order, prefer an appeal to the High Court.(The underlining is mine). The above provision would clearly show that no appeal lies against an interim order, as distinct from a final order that may be passed by the Controller after hearing the evidence of both parties, or, even ex parte. The sole question is, whether, the order for deposit of rent can be stated to be a final order, as distinct from an interim order.
' First of all, a reference to the provisions of the West Pakistan. Urban Rent Restriction Ordinance of 1959 would be apt. Even under the old enactment, the provision in regard to appeal was contained in section 15, and there is a string of decisions on the point that such appeal lay against a final order, and, in any case, did not lie against an order, requiring the tenant to tentatively deposit the amount of rent in Court. The scheme even of the present Ordinance is more or less similar to the scheme of the previous Ordinance, and one must say that, on the contrary, the new Ordinance tends to protect the interest of the landlords better than the old one.
' The arrears of rent are directed to be deposited in the Court in pursuance of the provisions of section ;6 of the Sind Rented Premises Ordinance. Section 16 reads as follows "16. (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 he 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.
(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.
(3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, *[Here in italics] ' be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
' There are some words in this section which significantly tend to show that the order under section 16 is an interim order within the meaning of section 21 of the Sind Rented Premises Ordinance. In fact, subsection (3) of the said section makes the position amply clear. This subsection provides that, after the rent had been deposited in pursuance of an order passed under subsection (2) of section 16, the disbursal thereof shall have to abide by an order, which the Controller may make in this behalf at the time of conclusion of the case, or, even earlier. This would mean that whatever amount is directed to be paid is a mere deposit, and the disbursal of that amount has to be determined finally after the case is concluded, or at any subsequent stage in the case.This would clearly show that the order is an interim order as distinct from a final order. Mr. Badruduja Khan has, however, invited my attention to the provisions of subsection (6) of section 13 of the W.P.U.R.R.
Ordinance, 1959, and attempted to distinguish that, while no remedy by way of appeal was available under the old Ordinance, such remedy has not been specifically barred by the present Ordinance. In this context, Mr. Badruduja Khan has specifically referred to the word "approximately", appearing in section 13 (6) of the previous Ordinance. I do not think this argument takes the case of Mr. Badruduja Khan any further, and I would say that despite the omission of the word "approximately" in subsection (3) of section 16 of the Sind Rented Premises Ordinance, the very fact, that the Controller has a power to re-open the matter at a subsequent stage, would seem to indicate that, in suitable cases, the Controller could at an initial stage pass an order, directing deposit of an approximate amount. In my view, there is no substantial difference between the old provision and the present provision, which might tilt the scales in the present case.
' These appeals are not maintainable.
' I see no substance in these appeals, which I dismiss in limine.
' Appeals dismissed.
1982 C I. C 2284 [Karachi] Before Nasir Aslam Zahid, J SHAMEEM AHMED CHOUDHR1-Appellant versus MUSHARAF ALI KHAN-Respondent Second Rent Appeal No, 390 of 1979, decided on 13th December, 1981.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- - - Ss. 13 (2) (i) and 15 (1) (4)-Default-Mere filing of distress warrant proceedings for recovery of rent, held, do not automatically amount to waiver on right of landlord to take action against tenant in respect of default. [p. 2286]A
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- -- Ss. 13 (2) (i) and 15 (1) (4)-Default-Water charges-Landlord waiving certain amount in a previous settlement-Held, did not mean that landlord in future also deemed to have accepted same.
[p. 2286]6 S. M. A. Mahmood for Appellant.
Rasheeduddin Ahmed Khan for Respondent. Date of hearing 13th December, 1981.
' Rent Case No, 119/78 was filed by the respondent/landlord against the appellant' tenant before the Rent Controller on 3rd January, 1978 on the ground of default in the payment of rent from February, 1976 to November, 1977, for damaging and altering the premises and for nuisance. The Rent Application was dismissed by the order dated 12th May, 1979 of the Rent Controller. The respondent filed an appeal being First Appeal No, 355/79 against the said order of the Rent Controller dismissing the Rent Application and, by his order dated 13th September, 1979, the learned V Additional District Judge, allowed the First Rent Appeal on the ground of default in the payment of rent from October, 1976 to November, 1977 and ordered ejectment of the appellant. In these circumstances the appellant/tenant has filed this Second Appeal.
2. I have heard Mr. S. M. A. Mahmood, learned counsel for the appellant and Mr. Rasheedudin Ahmed Khan, learned counsel for the respondent. It is contended by Mr. S. M. A. Mahmood that there were two periods in respect of which the case of the respondent/landlord can be bifurcated as far as the default in the payment of rent is concerned. According to learned counsel, the first period is from February, 1976, to September, 1976, and the second period is from October, 1976 to November, 1977. As far as the first period is concerned, according to learned counsel, the matter was settled through the arbitration of the brother of the respondent/landlord and as the water had been disconnected to the premises in question on account of non-payment of taxes by the respondent/landlord, the amount paid at the rate of Rs, 180 per month to the water man were deducted by the arbitrator and the balance amount was accepted by the respondent/landlord as payment of rent upto September, 1976. The First Appellate Authority has decided this point in favour of the appellant that as far as the default upto September, 1976 is concerned there is a waiver on the part of the respondent. There is no cross-appeal or cross-objection on behalf of the respondent and, therefore, I do not see any justification for disturbing this finding of the learned First Appellate Authority.
3. As regards the other period namely, from October, 1976 to November. 1977, the submission of learned counsel for the appellant has been that in respect of this period admittedly a Distress Warrant Application was filed by the respondent being D. W. Application No, 383/77 before the Small Causes Court, Karachi and by order dated 18th December, 1977, the following order was passed by the Judge of Small Causes Court, Karachi :- "Heard parties advocates. By consent opponent agrees to deposit Rs, 1,200 within 15 days and remaining amount in 3 equal monthly instalments of Rs, 400, first instalment to be paid on or before 5th February, 1978. In case of failure D. W. To issue."
' On the basis of the D. W. Proceedings having been filed and the aforesaid order dated 18th December, 1977 of the Judge Small Causes Court, it was contended by learned counsel for the appellant that the respondent had waived the default, if any, on the part of the appellant. I find no force in this contention. The fact that the landlord is forced to file D. W. Proceedings and recover the rent through such proceedings does not automatically amount to waiver on the part of the landlord of his right to take action against the tenant in respect of the default that has been committed. The default is committed in terms of the provisions of the Rent Ordinance and this default is not automatically waived by filing of the D. W. Proceedings or by recovery of rent through such proceedings. I am, therefore, of the view that by filing of the aforesaid D. W. Proceedings and on account of the aforesaid order dated 18th December, 1977, of the Judge of the Small Causes Court, Karachi, the default committed by the appellant had not been waived by respondent.
4. It was then contended by learned counsel for the appellant that as previously through arbitration the amount payable to the waterman was adjusted, in the second period of default also the appellant was entitled to adjustment. If water was disconnected, the appellant had a separate remedy open to him and that is to approach the Rent Controller. However, it may be observed that in the instant case, the stand taken by the respondent/landlord was that on account of non- payment of rent by the appellant, the respondent could not make payment of the taxes, which resulted in the disconnection of water supply. In my view a previous settlement relating to an earlier period where a certain amount was waived by the respondent did not mean that in future also the respondent would be deemed to have accepted that out of the rent payable the amount, if any, paid to the Waterman will be liable to be deducted.As observed earlier, if water had been disconnected and for which the responsibility was on the respondent, adequate provisions were available in the Rent Ordinance for obtaining relief by the tenant.
5. In my view the First Appellate Authority has taken a correct view of the matter and has come to the right conclusion that there was default in the payment of rent on the part of the appellant far the period from October, 1976, and as such the Rent Application was to be allowed. I see no reason or justification to interfere in the order dated 13th September, 1979, passed by the V Additional District Judge, Karachi, in the Rent Appeal No, 355/1979.
6. In the circumsances, the present Second Appeal No, 390 of 1979 is dismissed but with no order as to costs. The appellant, however, is granted time till 31st March, 1982 to vacate the premises.