This revision application is directed against the.' order dated 27-11-76 passed by the learned 1st Additional District Judge, Karachi whereby the appeal filed by the respondent was allowed and order issuing execution for realisation of arrears of rent was passed.
2. The applicant was tenant of the respondent in a residential premises situated at C. P. & Berar Co- operative Housing Society at Karachi. Respon--dent sought ejectment of the applicant from the premises under the Urban Rent Restriction Ordinance, 1959, on the ground of default in the payment of rent. The applicant denied the allegation made by the respondent. According to the respondent, the applicant was in arrears of rent with effect from the month of May, 1971, whereas the contention of the applicant was that arrears are due as from March, 1972. The learned Controller by his order dated 5-12-72 tentatively determined the arrears of rent and directed the applicant to deposit Rs.5,500, for the period between 16-5-71 to 30-11-72 by 10-2-73. The applicant failed to comply with the tentative order passed by the Rent Controller and consequently his defence was struck of under section 13(6) of the Rent Restriction Ordinance and he was directed to hand over vacant possession to the respondents by order dated 20-11-74.
3. It is the case of the applicant that he voluntarily handed over the possession of the premises to the respondent. Nevertheless the respondent filed Execution Application No. 1 of 1975, under section 17 of the Rent Restriction Ordinance praying for a writ of possession and recovery of the arrears of rent. The learned VIIIth Senior Civil Judge, Karachi by his order dated 31-5-75 allowed the prayer for the writ of possession but declined to issue execution for recovery of arrears of rent. Aggrieved by the aforesaid the respondent filed appeal which was disposed of by the learned 1st Additional District Judge, Karachi by the impugned order mentioned above. The learned Additional District Judge has taken the view that section 17 of the said Ordinance provides that every order inter alia, made under section 13 is liable to be executed by a civil Court as a decree of the Court, and therefore the tentative order of the Rent Controller directing the deposit of arrears of rent was executable under the said provision. In taking this view the learned Judge purported to follow the observation made by their Lordships in the case of Ashfaq-ur-Rahman v. Muhammad Afzal (PLD 1968 S- C 230), as under: "It would further be noticed that 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 were a decree of that Court."
4. It may at once be stated that the learned Judge was applying the observation of their Lordships to a tentative order under the first part of section 13(6), whereby the Rent Controller had tentatively determined the rent due and directed it to be deposited within the specified time, whereas the observation of their Lordships clearly referred to the final determination of the amount of rent due from the tenant in the last part of section 13(6) which provides that after the tenant's defence is struck of and the landlord is directed to be put into possession of the property, the Controller is required to "finally determine" the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of approximate amount deposited by the tenant. This is clear from the next sentence in the passage cited by the learned Judge as follows: --- 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 a suit for recovery of the arrears of rent." .
The learned Judge seems to have overlooked the significance of the reason assigned by their Lordships in the subsequent sentence cited above, namely, the determination of the rent due finally upon adjudication. A tentative order passed under the first part of subsection (6) of section 13, as expressly provided is an approximate determination where there is a dispute about the quantum of rent dues. It is now well settled that the order tentatively fixing the rent dues under the first part is an interlocutory order of provisional character and is not an appealable within the meaning of section 15(1) of the Ordinance. See Ebrahim v. Muhammad Hussain (PLD 1975 SC 457).
The consensus of judicial 'opinion also holds that a tentative order for deposit of rent under section 13(6) is not executable as a decree of a civil Court. See PLD 1961 Lab. 619, . PLD 1962 Lab. 175, PLD 1971 Kar. 468 and PLD 1972 Pesh. 66.
5. In view of the interpretation placed by their Lordships in Ebrahim's case that an order under the first part of section 13(6) is an interlocutory order not appealable under section 15(1) of the Ordinance, it is quite clear that such an order will also not be executable under section 17, for, under the said section it is only order, inter alia, passed under section 13 which are executable. Since the language used in section 15 and section 17 in material parts is the same, it follows that the rule laid down by their Lordships will govern the interpretation of section 17 as well, so that a tentative order for deposit of rent will not be deemed to be an order passed under section 13 for purposes of section 17 also.
6. I also agree with the submission of Mr. Muhammad Sharif, learned counsel for the applicant that the tentative order of deposit of rent cannot stand by itself and will merge in the order passed under the second part of subsection (6) of section 13 whereby the defence of the tenant is struck of and the Rent Controller determines the rent dues to the landlord finally. Thus if the tentative order is wiped of and exhausts itself after further proceedings under subsection (6), it will not survive for purpose of execution as an order under section 13.
7. Mr. Farooqui, the learned counsel appearing for the respondent very fairly conceded that the tentative order for deposit of rent is not capable of execution but his contention was that in the execution proceedings in question the respondent was seeking to execute the final order dated 20- 11-74 passed by the Rent Controller. According to the learned counsel, when the applicant committed default in the compliance of the tentative order, the respondent submitted an application on 25-7-74 before the Rent Controller under section 13(5) of the Rent Restriction Ordinance praying that the defence of the applicant be struck of, he be directed to hand over vacant possession to the respondent and all the rent due be determined. It is stated that notice of this application was ordered to the applicant, and on 19-9-74 the service of the notice was held good. Thereafter, the Court passed the order dated 20-11-74 allowing the prayer of the respondent.
The aforesaid order dated 20-I1-74 has been placed on record on behalf of the applicant which shows that the only order passed by the Rent Controller was to strike of the defence of the applicant and he was directed to hand over possession of the premises forthwith to the respondent. Thus the Rent Controller did not determine finally the rent dues payable to the respondent in the final order. But the contention of the learned counsel for the respondent was that since the Rent Controller allowed the prayer of the respondent it should be deemed that the rent tentatively fixed by him was the rent I determined as due under subsection (8) of section 13.
Therefore, the counsel contended, the order is executable. I, however, do not find force in this contention. Firstly as stated above there is no direction in the order dated 20-11-74 for payment of rent dues. Additionally the perusal of the impugned order passed by the Additional District Judge clearly shows that he had considered the question whether the tentative order for deposit of rent fails within the purview of section 17 of the Ordinance as an executable order. There was, therefore no question of there being a final order determining the rent due and payable by the tenant. From the present record, therefore, it appears that the respondent was seeking to enforce the tentative order for deposit of rent through the execution proceedings, which was clearly not competent under the law.
8. In the result, I allow this revision and set aside the order passed by the learned 1st Additional District Judge, Karachi and restore the order earlier passed by the learned VIIIth Senior Civil Judge, Karachi. There will, however, be no order as to costs.