The facts giving rise to this Second Appeal No. 287/79 briefly stated are that the appellant/tenant Masood Kazmi was the tenant of Shahul Hamid deceased husband of the landlady Mst.
Shamsunnisa in the premises bearing House No. 31, Block-3, Kohan Muslim Co-operative Housing Society, Karachi during the lifetime of Shahul Hamid. After his death on 9-5-1970, the appellant- tenant offered the rent to the respondent-landlady Shamsunnisa but she refused to accept till she was granted letter of administration in respect of the property by the High Court. She served a notice on the appellant tenant after the letter of administration was granted to her claiming rent at the rate of Rs.450 per month were. f. 1-9-1969, which claim the appellant denied by a reply to the effect that the rent due was were. f. 1st September 1970 @ Rs.225 per month only, and that after deducting the deposit for six months' rent with the husband of the respondent-landlady and the amount spent on the repairs carried out, the appellant-tenant forwarded a cheque of Rs.1,905 to the respondent-landlady towards the arrears of rent which she refused, The controversy resulted in two proceedings, filed simultaneously, Suit No. 1561/72 out of which the present II-Appeal arises, claiming arrears of rent amounting to Rs.16,200 and R. C. 1985/72 filed in the Court of the learned Rent Controller for eviction of the appellant-tenant from the premises in question. The suit was decreed by the judgment dated 23-2-1976 by the learned Ist Senior Civil Judge, Karachi, for the amount of Rs.16,200 as arrears of rent, whereas the rent case is said to be still pending in the Court of the learned Rent Controller, Karachi. The appellant-tenant filed Ist. Appeal in the Court of the learned Additional District Judge, Karachi, against the judgment and decree passed as stated above and the learned Additional District Judge vide his judgment dated 29-4-1979 dismissed the same, resulting in this second appeal challenging the judgment and decree of the learned Additional District .Fudge, Karachi.
2. The appellant-tenant has challenged the Judgment of the learned Additional District Judge on two-fold ground; firstly, that the civil suit for rent due was not legally maintainable, and no decree could be passed in view of the pendency of the rent case in the Court of learned Rent Controller in' which the same cause of action with regard to the rent due was involved as he cannot be vexed twice for the same cause of action ; and, on the merits of the case itself.
3. As regards the first ground Mr. Habibur Rehiiari the learned counsel for the appellant/tenant has urged that the plea with regard to the maintain--ability of the suit in view of the filing of the rent case simultaneously which continues to be pending was raised right up from the beginning as it would appear from para. 4 of the written-statement filed in the suit and that the plea continued to be maintained even at the stage of 1st Appeal where the appellant-tenant even made an application for adducing additional evidence on the ground: that rent arrears were deposited in the Court of Rent Controller and the monthly rent was being deposited regularly in the same Court in compliance with the order of the Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and that he cannot be vexed twice on the same cause of action but the plea was repelled on the ground ,that the Rent Controller in such circumstances could finally determine the rent due under the same provisions of section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, and, therefore, it was not material to allow the additional evidence to be adduced. The plea in that . Respect, raised by the learned counsel for the appellant/--tenant is supported by the affidavit of the appellant-tenant, counter-affidavit of the respondent-landlady and the documents produced in. Support of such an application for permission to adduce additional evidence. What I find from the record that in spite of that no serious note was taken even by the Ist Appellate Court of the plea raised and it appears that no order was passed by that learned Court as it is not available on the record though notice was ordered to the respondent-landlady on such application. My attention has been drawn to the tentative order dated 11-4-1974 passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, by the learned Rent Controller, which has been produced on the record whereby the tentative rent was fixed at Rs.225 per month and was directed to be deposited by the appellant-tenant from 15th of each calendar month till the final decision of the case. What I find that the appellant-tenant has regularly deposited the tentative rent due including the rent arrears according to his own calculation at the rate of Rs.225 per month and admittedly the amount of Rs.6,630 was deposited, which amount was actually withdrawn by the respondent-landlady in the month of May 1974, as it appears from the record. What is further admitted that even thereafter the amount of the monthly rent was also being regularly deposited in the Court of the learned Rent Controller. The provision under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 reads as 'follows :- "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 final decision of the case, before the 15th day of each month, the monthly rent due from him. If there is no 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 order, then if he is the petitioner. His application shall be dismissed summarily and if he is the respondent, his defence shall be struck of 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 the adjustment of the approximate amount deposited by the tenant."
This provision clearly speaks of, in case the tentative rent is determined to be paid by the tenant, the Controller finally to determine the amount of rent due from the tenant and direct the same to be paid to the landlord subject to adjustment of the tentative amount deposited by the tenant. In the cases of Ashufaqur Rehman's v. Ch. Muhammad Afzal (PLD 1968 SC 230), it was observed as under :- "Deposit of `all the rent due' and its payment to the landlord is not dependent on the ultimate decision on the action before the Rent Controller. For example the application for eviction may be dismissed, but the rent found due shall be paid to the landlord and in default such an order shall under section 17 be executed by a civil Court having jurisdiction in the area as if it was a decree of that Court. To this extent the determination of `all the rent due' in subsection (6) of section 13 by the Rent Controller is in the nature of an adjudication by a Court in suit for recovery of arrears of rent."
The learned counsel for the appellant-tenant in that respect has further relied on PLD 1964 SC 673, wherein it was observed that where a special statute dealing with a special subject created special liabilities as also provided a special remedy or procedure for the enforcement of that liability, then in order to bring about the consequences contemplated by that statute, for the breaches of its provisions recourse should be had to that statute and to no other statute. Consequently, the contention raised on behalf of the appellant--/tenant to the effect that, since the rent due could be finally determined in their circumstances of the present case under section 13(6) of the West Pakistani Urban Rent Restriction Ordinance, 1959, to the rent case which was filed( simultaneously with the civil suit for rent arrears out of which this second appeal arises, and which rent case is still pending and the monthly rent tentatively determined by the Rent Controller is being regularly paid to the --Respondent-landlady, she .Cannot have recourse to two proceedings simulta--neously filed and that the civil suit out of which the present appeal arises in view of the pendency of the rent case is not maintainable, is not without force. The learned trial Court, therefore, in view of the plea raised to that effect, should also have determined the effect of the rent case pending between the parties and simultaneously filed, on the civil suit and should then have disposed of the suit, out of which this second appeal arises.
4. In the result, without going into the merits of the case with regard to the plea raised in the second ground, I remand the case `to the trial Court with a direction to frame an additional issue with regard to the effect of the rent case on the suit itself out of which the present second appeal arises, allow the parties to lead evidence on that issue and also an additional evidence on the issues already framed in the suit if the parties so choose and then dispose of the suit according to law.
The judgments and decrees passed by the two Courts below are accordingly set aside and the appeal is allowed in the circumstances of the present case with no order as to costs.