1. ' This is a first rent appeal filed against the order dated 12-1-1983 of the learned Rent Controller, Karachi, striking off the defence of the appellant/ tenant and directing him to vacate the premises in question. Rent Case No, 5565/80 was filed by the respondent/landlady for the ejectment of the appellant from the shop in question on the ground of default in the payment of rent and personal requirement of the shop for the husband of the respondent/landlady. In the rent application rate of rent was claimed to be Rs, 2,000 per month. In the written statement the rate of rent was disputed and it was averred that the agreed rent was Rs, 1,000 per month and reliance was pleased on an agreement of tenancy dated 18-7-1978. An application under section WO was tiled by the respondent on 21-4-1981 in which a request was made that the appellant may be directed to deposit rent at the rate of Rs, 2,000 per month. For claiming the rent to be Rs, 2,000 per month, reliance was placed on a letter dated 7-7-1980 of the appellant addressed to the respondent copy of which letter was annexed to the application under section 16(1). The said letter dated 7-7-1980 reads as follows :- "With reference to the above, we have enclosed herewith a cheque No, CM-I69964 of United Bank Ltd. Dated 7th July, 1980 for Rs, 4,000 (Rupees four thousand only) being the office rent for two (2) months i,e, from 15th April, 1980 to 15th June, 1980."
2. ' Objections dated 5-5-1981 were filed on behalf of the appellant in which the rate of rent was disputed. The letter dated 7-7-1980 was not denied but it was pleaded that the said letter was not the conclusive evidence, much less bearing any evidentiary value at that stage of proceedings and that it was otherwise rebuttable at the time of evidence of the parties. It was stated that the appellant had no objection to deposit the arrears and current monthly rent at the rate of Rs, 1,000, which, according to the appellant, was the rent payable and not at the rate of Rs, 2,000 per month, which rent claimed by the respondent was disputed.
3. ' The Rent Controller, by his order dated 28-5-1981, taking into consideration the respective pleas raised on behalf of the parties and prima fade relying upon the letter dated 7-7-1980, directed the appellant to deposit arrears of rent at the rate of Rs, 2,000 per month and also directing the deposit of current rent at the rate of Rs, 2,000 per month. It was further ordered by the Rent Controller that in view of the contention of the appellant, the respondent was entitled to withdraw rent at the rate of Rs: 1,000 per month and rest of the amount was ordered to be withheld till further orders.
4. ' There is an admitted default in compliance with the rent order dated 28-5-1981. An application under section 16(7.) of the 1979 Ordinance was filed. Objections dated 2-1-1983 were filed on behalf of the appellant, in which it was stated that there existed a dispute between the parties as to the quantum of monthly rent, which could be decided at the time of taking final evidence of the parties. It was further requested that the issue regarding quantum of monthly rent be decided first before dealing with the application under section 16(2). As observed earlier, Rent Controller, by his order dated 12-1-1983, allowed the application of the respondent filed under section 16(2) of the 1979 Ordinance and struck off the defence of the appellant. Hence this first rent appeal.
5. ' I have heard Mr. Irtiza H. Zaidi, learned counsel for the appellant. It was first contended by the learned counsel that as there was a dispute between The parties about the quantum of rent, an enquiry should have been held in which enquiry evidence ought to have been recorded by the Rent Controller at the stage of passing the rent order and if no such enquiry was held/ evidence recorded, before deciding the application under section 16(2), the Rent Controller should have recorded evidence and after determining the quantum of rent finally should have decided then the application under section 16(2) filed on behalf of the respondent/landlady. It was submitted that no enquiry at all was held by the Rent Controller. In the instant case, when the application under section 16(1) was filed, the appellant in their objections did not dispute the letter dated 7-7-1980 but took the stand that as the quantum of rent was disputed, the Rent Controller may pass an order directing the deposit of rent at the rate of Rs, 1,000 per month. In my view, a summary enquiry was held by the Rent Controller inasmuch as the contentions of the parties were taken into consideration. The letter dated 7-7-1980 of the appellant was considered and so also the objections raised on behalf of the appellant. In view of the letter dated 7-7-1980 and having considered the contentions on behalf of the parties, I see no perversity or arbitrariness in the rent order dated 28-5-1981 passed by the Rent Controller. It was not necessary, in the facts of the case for the Rent Controller to have recorded evidence before passing the rent order. As already observed, the letter dated 7-7-1980 was not denied. Further no request was made for recording any evidence. In my view, the rent order dated 28-5-1981 passed by the Rent Controller is not an illegal order. It was then contended by the learned counsel for the appellant that at the stage of deciding the application under section 16(2) of the striking off the defence of the appellant, evidence should have been recorded to determine what was the actual rent of the premises in question and if it was found that the rent was only Rs, 1,000 per month, the Rent Controller would have been come to the conclusion that there were no default. In my view, it was not necessary for the Rent Controller to determine finally the quantum of rent. A legal rent order has been passed and on account of non- compliance with the said order, the defence of the appellant was liable to be struck off ipso facto and this is what has been done by the Rent Controller by the impugned order dated 12-1-1983.
6. ' Learned counsel for the appellant relied upon a decision of a Division Bench of this Court reported in Nasim Ahmad v. Senior Civil Judge & Rent Controller (1). In that judgment it was decided that the order passed under section 16(1) is a tentative order and the contention raised on behalf of the tenant that section 16 required the Rent Controller to determine finally arrears of rent was repelled.
7. This view of the learned Division Bench goes against the contention raised on behalf of the appellant. However, reliance was placed on this judgment for the proposition that in the summary enquiry to be held by the Rent Controller full regard is to be given to the principles of natural justice.
8. In my view, contentions of the parties were properly taken into consideration by the Rent Controller including the plea of the appellant that the rent was Rs, 1,000 and not Rs, 2,000 and also the admitted letter dated 7-7-1980 of the appellant, which prima fade 'shows that the rent was Rs, 2,000 per month. Further the Rent Controller directed that the respondent/landlady could withdraw only rent at the rate of Rs, 1,000 per month. In my view, no illegality has been committed by, the learned Rent Controller in passing the aforesaid rent order dated 28-5-1981.
9. ' Reliance was also placed on a judgment of a learned Single Judge of this Court reported in Nasir Kamal Pasha v. Muhammad Ismail Khan (2). In that judgment it was held by a learned Single Judge of this Court that discretion of the Rent Controller to pass the tentative rent order under section 16 was a judicial discretion, which must be exercised in accordance with all material facts on record after holding a summary enquiry. As observed earlier, in the instant case whatever material was placed before the Rent Controller was duly considered by him and in my view, a fair and legal order had been passed by the Rent Controller. Reliance was also placed on a leave- granting- {{FOOT NOTE}}
(1) PLD 1982 Kar. 210 (2) PLD 1983 Kar. 192 {{FOOT NOTE}} order of the Supreme Court of Pakistan in the case of Nasim Ahmad v. Senior Civil Judge & Rent Controller Karachi (1). It may be observed that the aforesaid order is a leave-granting order where no stay was granted by the Supreme Court. It may further be observed that although leave was granted, the Supreme Court had observed that the view taken by the High Court appeared to be persuasive. In my view, 1983 SCM R 204 does not help the contention of the learned counsel for the appellant in the facts and circumstances of the present case.
10. ' I find no merit in this appeal. F. R. A. No, 117 of 1983 is dismissed in limine. The appellant is, however, granted time till 30-6-1983 to vacate the premises.
(1) 1983 SCM R 204