1. This First Rent Appeal has been filed by the appellants against the judgment dated 16-3-1981 of the Rent Controller, Karachi, striking off the defence of the appellants in Rent Case No. 5002/78 and directing them to hand over possession to the respondents. The rent case has been filed under the Repealed 1959 Rent Ordinance and the tentative rent order dated 21-3-1979 was also passed by the Rent Controller at the time when the 1959 Ordinance ruled the field. There was non-compliance with the tentative rent order dated 21-3-1979 on the part of the appellants and as a consequence an application was moved under section 16 (2) of the 1979 Ordinance dated 18-3-1980 by the respondents and this application was allowed by the impugned order dated 16-3-1981 of the Rent Controller.
2. The only contention raised by Mr. Azhar Ali Siddiqui, learned counsel for the appellants, is that the tentative order for deposit of rent dated 21-3-1979 passed by the Rent Controller was an order under section 13 (6) of the Repealed 1959 Ordinance and as there is an inconsistency between section 13 (6) of the Repealed 1959 Ordinance and the provisions of section 16 of the prevalent 1979 Rent Ordinance, the said tentative order for deposit of rent lapsed and no order could be passed striking off the defence of the appellants under section 16 of the 1979 Ordinance. Reliance was placed on section 27 of the 1979 Ordinance and on a judgment of a learned Single Judge of the Lahore High Court in the case of Muhammad Azeem v. Muhammad Nawaz PLD 1961 Lah. 137It was the contention of learned counsel for the appellants that after the promulgation of the 1979 Ordinance, fresh order for deposit of rent are required to be passed by the Rent Controller in these cases also where tentative orders of rent had been passed under the repealed Ordi--nance and only where such fresh orders are passed under the 1979 Ordinance and there is a non-compliance thereof by the tenant, that an order for striking off the defence can be passed by the Rent Controller under section 16 (2) of the 1979 Ordinance.
3. Section 13 (6) of the repealed 1959 Ordinance is in the following words :- "(6) In proceedings under this section on the first date of hearing or as soon as possible after that and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the first decision of the case, before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order then if he is the petitioner his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
4. Section 16 of the 1979 Ordinance reads as follows :- "16. Arrears of rent.-(1) Where a case for eviction of the tenant has 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 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, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
5. By section 27 (1) of the 1979 Ordinance, the Sind Rent Ordinance, 1959 was repealed and by subsection (3) it was provided that all cases, apart from cases excepted under subsection (2), pending at the time of the commence--ment of the 1979 Ordinance, shall be continued and disposed of in accordance with the provisions of the 1979 Ordinance and any proceedings taken or orders made in any such cases shall, for all purpose, have effect as proceedings taken or orders made under the 1979 Ordinance. The instant case is covered by .Subsection (3) of section 27 of the 1979 Ordinance and the order dated 21-3-1979 of the Rent Controller passed under section 13 (6) of the repealed 1959 Ordinance is to be given effect as an order made under the existing Ordinance.
6. According to learned counsel, as observed earlier, there is an inconsistency between relevant provisions of the two Ordinance and as such an order passed under section 13 (6) of the 1959 Ordinance cannot be given to as an order under the 1979 Ordinance. Learned counsel pointed out that under section 13 (6), no application is to be made by the landlord for passing of the tentative order of rent whereas under the existing Ordinance, such orders can be passed only on an application by the landlord, and that under the previous Ordinance there was no provision for any inquiry whereas under the existing Ordinance, a summary inquiry has to be held by the Rent Controller. I do not see any substance in the contention of the learned counsel. If there is no dispute between the landlord and tenant about the rate of rent and the period for which the rent is due, there would be no occasion for holding any inquiry by the Rent Controller while passing a tentative order. However, if there was/is any dispute about either of these two matters, under section 13 (6) of the Ordinance 1959 the Controller was required to determine such amount approximately, and under section 16(1) of the existing 1979 Ordinance, the Controller is required to hold "such summary inquiry as he deems fit to make". These provisions are not inconsis--tent with each other. In both situations some sort of a summary inquiry was/is made. The -other difference pointed, out by learned counsel that in one case such an order was passed without moving of an application by the landlord and in the other case on filing of an application by the landlord, is of no significance and I am of the view that this cannot be treated as an inconsistency.
7. Learned counsel, as served earlier had relied upon PLD 1961 Lab.
137. A perusal of that reported judgment shows that it is not relevant to the point in issue here. The facts are clearly distinguishable and the point involved in the Lahore case was also not the same or similar as has been raised in the present First Appeal.
8. In my view, there is no inconsistency between the provisions of sec--tion 13(6) of the repealed 1959 Rent Ordinance and section 16 of the 1979 Rent Ordinance; and it is not necessary under the 1979 Ordinance that a fresh order for deposit of rent be passed by the Rent Controller under section 16 of the 1979 Rent Ordinance, where an order under section 13 (6) of the 1959 repealed Rent Ordinance exists, and non-compliance of an order of the Rent Controller passed under section 13 (6) of the repealed Ordinance entitles the landlord to file an application under section 16 of the 1979 Rent Ordinance for striking out the defence of the tenant, which application Of course is decided by the Controller in accordance with law.
9. I see no substance in this First Rent Appeal No. 258/81 which is dismissed in limine. The appellants are, however, granted time till 28-2-1982 to vacate the premises.