' FAROOQ ALI CHANNA , J.---Appellant Mrs. Farahat Liaquat Dairkee has filed this First Rent Appeal against the order dated 24-10-2013 passed by learned Additional Controller of Rents, Clifton Cantonment, Karachi (hereinafter referred to as "trial Court") whereby the defence of appellant in terms of section 17(9) of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to Act 1963) was struck off and the appellant was directed to hand over the vacant possession of Apartment No,101, 1st Floor, Block-B, Creek Vista Apartments, Phase VIII, Defence Housing Authority, Karachi (hereinafter referred to as demised premises) within 30 days to the respondent.
2. Briefly the facts giving rise to file this First Rent Appeal are that the respondent being owner of demised premises rented out the same to appellant at monthly rent of Rs, 55,000 for a period of five years commencing from 1st May, 2011 to 1st May, 2016 with ratio of 5% increase after every eleven months, under tenancy agreement dated 4-4-2011. The appellant paid to the respondent Rs,55,000 as advance rent and Rs,70,000 as security fixed deposit, the appellant also handed over 10 post-dated cheques against monthly rent, however, on presentation most of the post-dated cheques were dishonoured due to insufficient funds as such the appellant committed wilful default in payment of rent, therefore the respondent filed Rent Case No, 12 of 2013.
3 . During pendency of rent case, the respondent filed application under section 17(8) of Act, 1963 seeking the directions to the appellant to deposit in Court the arrears of rent at Rs,57,000 per month w.e.f, December, 2012 to May, 2013 amounting to Rs,345,000 and future rent, so also water and maintenance charges accumulated against her to the tune of Rs, 2,20,000 till filing of the ejectment proceedings.
4. Pursuant to the notice, the appellant filed written statement denying the averments of ejectment application and contended that the appellant as per rent agreement is entitled to remain in possession of the demised premises for five years, she cannot be evicted before expiry of tenancy period. However the appellant has not disputed the non-payment of rent, her stance was that the respondent deliberately did not present the post-dated cheques for encashment.
5. Learned Rent Controller after affording an opportunity of hearing to both the parties passed the order dated 16-9-2013 under section 17 (8) of Act, 1963 directing the appellant to deposit arrears of rent from February, 2013 to April, 2013 at Rs,57,500 per month totalling to Rs,172,500. The Rent Controller further directed the appellant to deposit arrears of rent from May, 2013 to August, 2013 with 5% increase as per clause 14 of the tenancy agreement dated 14-4-2011 at Rs,60,375 per month totalling to Rs,241,500 on or before 3-10-2013, the rent sent by appellant through pay order amounting to Rs,57,500 on 5-7-2013 was ordered to be adjusted in the rent for January, 2013. The Rent Controller further directed the appellant to deposit future monthly rent at Rs,60,375 from September, 2013 onwards on or before 5th of each calendar month. Since the appellant did not comply with the above tentative order therefore the respondent filed application under section 17(9) of Act, 1963 which was allowed as referred to hereinabove vide order dated 24-10-2013 which is impugned in this First Rent Appeal.
6. Learned counsel for the appellant at the outset admitted the nonpayment of rent to the respondent so also non-compliance of the tentative rent order dated 16-9-2013. However learned counsel has challenged both the orders dated 16-9-2013 and 24-10-2013 being violative of Article 10-A of the Constitution of Islamic Republic Pakistan, 1973 inserted by Constitution 18th Amendment Act X of 2010, which provide the right to fair trial for the determination of civil rights and obligations or in any criminal charge, a citizen shall be entitled to a fair trial and due process. Per learned counsel, the trial Court before passing the aforesaid orders extended no opportunity of fair trial to the appellant, both the orders are based upon summarily inquiry which under the law of equity and natural justice are not legal orders. Learned counsel has also referred to dictionary meaning of word "inquiry" defined in Stroud's Judicial Dictionary of Words and Phrases, Volume 3 as under:-- "INQUIRY. (1) An inquiry in an action was not limited to what a man could see with his own eyes; it signified a judicial inquiry with witnesses; therefore in a reference "for inquiry and report" under Judicature Act 1873 (c. 66). S. 56, the referee might, and it was the invariable practice to, hear counsel and witnesses (Wenlok v. River Dee Co., 19 Q.B.D. 155).
(2) The power in club rules to expel a member "after inquiry" means after a fair inquiry into the truth of the alleged facts by giving due notice to the accused, and by taking and fairly considering the evidence (Labouchere v.
Wharn cliffe, 13 Ch. D. 346)."
' Learned counsel has also contended that the inquiry means a process of law to take evidence and hold a judicial inquiry, such inquiry in this case the learned Rent Controller has failed to hold as such the impugned orders are perverse and arbitrary therefore not substantial in law. Learned counsel has also challenged the vires of section 17 of the Act 1963 and suggested that the matter may be referred to the honourable Chief Justice for constitution of a larger Bench to examine the efficacious application of section 17 of the Act, 1963 in view of Article 10-A inserted in Constitution by 18th Amendment.
7. Learned counsel for the respondent has contended that the trial Court has passed tentative order after conducting proper inquiry in terms of the provisions of Act 1963, in the allegation of rent arrears payable by the appellant to the respondent and non-payment of monthly rent within time.
The trial Court also examined the record with the assistance of learned counsel for both the parties and came to the conclusion as recorded in tentative order dated 16-9-2013, non-compliance thereof resulted in that the defence of the appellant was struck off, as such both the orders are not suffering from any infirmity or illegality and being passed in accordance with law requires no interference of this Court.
8. I have considered the arguments and perused the record. I am not impressed from the submissions of learned counsel for the appellant for the reasons firstly that the controversy involved in this case is between the landlord and the tenant in respect of willful default in payment of rent and ejectment of appellant on that score from the tenement situated within the limit of cantonment area, such controversy can only be resolved under the provisions of Cantonments Rent Restrictions Act, 1963 and secondly the vires of the provisions of Act 1963, after enactment of Article 10-A by Constitution 18th Amendment, Act X of 2010, cannot be challenged in rent proceedings bypassing the efficacious remedy provided under Article 199 of the Constitution 1973.
As far plea of inquiry is concerned, the Rent Controller is not required to record evidence for the purpose of passing an order under section 17(8) of Act 1963, such tentative rent order, the Rent Controller is competent to pass on the basis of material available on record.
9. Adverting to the merits of the case, I may mention that the learned counsel for the appellant in the beginning of his arguments has admitted the non-payment of rent claimed by the respondent and non-compliance of tentative order dated 16-9-2013 passed in terms of section 17(8) of Act 1963, in these circumstances the trial Court had no other option except to struck off the defence of appellant in terms of section 17(9) of Act, 1963, such order is not perverse or arbitrary nor suffering from any legal infirmity, it is based upon the record placed before the trial Court as such the orders impugned do not require interference of this Court in appeal. Accordingly the First Rent Appeal is dismissed with no order as to costs.