1. ' ZAFFAR HUSSAIN MIRZA, J.-This is an appeal by special leave arising out of the judgment of the High Court of Sind, dated 22-3-198 1, by which Second Appeal filed by the respondent was allowed, setting aside the order of ejectment passed against him and remanding the case for a fresh decision.
2. ' By the leave granting order, dated 22-9-1980, the following question was considered to require examination : "Therefore, the High Court fell into an error in holding as it did that in the absence of receipts to show the payment of rent before July, 1975, the Rent Controller could not accept the plea of the petitioners as 0 the arrears of rent due from the respondent ; and further that the omission to produce receipts should be held against him."
3. ' The facts of this case are that the appellants are the owners of residential premises bearing No, 122/123 Osmania Colony, Nazimabad Karachi. The premises were let out to the respondent admittedly at a monthly rent of Rs, 350. Since, according to the appellants the respondent failed to pay rent ever since the inception of the tenancy, ejectment proceedings were filed against him on 10-9-1975, when at the aforesaid rate of rent a sum of Rs, 11,2C0 had accumulated as arrears Respondent resisted the proceedings and inter alia, averred that he had regularly paid the rent to the landlords until July, 1975, but no receipts were issued to him and since that month the rent at the agreed rate of Rs, 130 was being deposited in the Court, vide Rent Case No, 2877/1975. On 7-4- 1976, the Rent Controller directed the respondent to deposit arrears of rent from January, 1973, until 31-3-1976 at the rate of Rs, 130 per month before 15-6-1976, less the amount already deposited by him. The respondent failed to comply with this order and in the meantime on 3-5-1976 applied to the Rent Controller under section 152, C. P. C. For amendment of the order for deposit of rent. His plea in the application was that he has all along asserted that he has paid to the appellants rent up to June, 1975, directly and therefore, the period of arrears to be covered by the tentative order should have commenced from July, 1975. The learned Rent Controller dismissed the application by his order, dated 14-9-1976, inter alia, on the grounds as under :- "There is no apparent mistake in my order dated 7-4-1976, which need correction or revision. The contention of the opponent that he paid the rent from January, 1973 to June, 1975, to applicant and the applicant has not issued him receipts has been considered in the order and it has been answered in the said order dated 7-4-1976. This contention of opponent has not been accepted."
4. ' In the original tentative rent order, dated 7-4-1976, in this connection, it was observed :- "There is a dispute about the rate of rent and the period of arrears. According to the applicant as per application, the rental is Rs, 350 p. m. And the opponent is in arrears since January, 1973. On the other hand the Advocate for the opponent contends that the rate is Rs, 130 p. In. And the period of arrears is up to June, 1975, and thereafter he has deposited the arrears in R/C No, 2877/75, up to February, 1976. None of the parties have shown the actual rental paid by the opponent or received by the applicant. To determine the rate of rent it will be proper that the parties should lead evidence. However, I tentatively fix rent at the rate of Rs, 130 p. m. And the period of arrears from 1st January, 1973, till 31st March, 1976, amounting to Rs, 5,070."
5. ' In view of the aforesaid order on an application, dated 21-7-1976 by the landlords, the Rent Controller struck off the defense of the respondent and directed him to hand over the possession of the premises to the appellants. Being aggrieved by the order, the respondent filed an appeal before the High Court and contended, on the basis of Ikramuddin v. Syed Mahboob Ali (1) that the order for deposit of rent was invalid in law in so far as the Rent Controller determined the arrears of rent tentatively merely on the basis of the respondent not having produced any evidence showing payments of rent up to July, 1975. The learned Single Judge accepted the contention and held {{FOOT NOTE}}
(1) PLD 1978 Kar, 145 {{FOOT NOTE}} ' that in the face of a dispute as to the quantum of arrears of rent, mere assertion on the part of the appellants that no rent we paid, was tantamount to improper exercise of jurisdiction to determine the amount of arrears approximately in terms of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. As a result he accepted the appeal and made the directions in the following terms : "The result is that this appeal is allowed and the matter will go back to the Rent Controller at the stage at which making of application under section 13(6) for striking off defence was pending and the appellant will have the opportunity to prove his case about rent having been paid up to June, 1975 and therefore, the tentative order for deposit of arrears of rent was not valid or proper order and its non-compliance therefore, cannot result in his defence being struck off."
6. ' Now there is no dispute that the respondent did not comply with the tentative order for deposit of rent passed by the Rent Controller and, therefore, it is contended on behalf of the appellants that, the Rent Controller had rightly struck off the defence of the respondent. The respondent, further, did not even attempt to explain why he failed to deposit rents in terms of the order and his only contention was that he was not in arrears of rent at the time the order under section 13(6) of the Ordinance was passed. The submission, therefore, is that the learned Single Judge misconstrued the facts and the law applicable thereto, in holding that the Rent Controller was bound to finally determine the question whether the respondent was actually in default in the payment of rent for the period prior to July, 1975. On the other hand, it is urged on behalf of the respondent, that the law contemplates an opportunity to be given to the tenant, before his defence is struck off, to prove that the tentative rent fixed under section 13(6) was wrong, otherwise, it was argued, the tenant will have no chance at any stage to prove that.
7. ' After hearing the counsel for the parties, we are of the view that the High Court was not justified to upset the order passed by the Rent Controller striking off the defence of the respondent. In order to properly appreciate the contentions of the counsel, the provisions of subsection (6) of section 13 of the Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred to as the Ordinance) may be reproduced as under : "(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 final 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 a 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."
8. (The underlining is mine).
9. The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has/ not to determine the question of quantum or rate of rent, finally if the same is in dispute, but to determine such amount "approximately". This is the clear import of the words underlined* above. Further this excludes final adjudication of this question. In the premises the consequence of noncompliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non-compliance by striking off the defence and passing the order of eviction. If the argument of the respondent is accepted, then in every case the Controller would be competent to order ejectment of the tenant only on his final determination of the question as to quantum of arrears of rent or rate of rent. In the face of the clear language employed, such cannot be the intent and effect of this subsection. Reference in this behalf may profitably be made to a passage from the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (I). In this case the contention advanced was that the Controller was not bound to order eviction of the tenant even if in fact non- compliance of the tentative rent order was established. But could extend the benefit of section 114 of the Transfer of Property Act on equitable principles, to relieve the tenant of forfeiture of tenancy, if it was shown to him that the tenant was not in fact in arrears of rent at the time of institution of the proceedings. In construing the true import of section 13(6) of the Ordinance, it was observed by late Hamoodur Rahman, J. (as he then was) : "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)."
10. ' Similarly, when there was a dispute about the rate of rent between the parties, the Controller determined the rate tentatively for purposes of section 13(6) and directed that this matter could be thoroughly proved in the main proceedings, when the parties adduced evidence in support of their respective claims. This approach of the Rent Controller was approved in Rustam G. Irani v. Javed Qureshi (2). In Mushtaq Hussain v. Muhammad Shafi (3), this Court repelled a somewhat similar contention in the following words :- `'The order directing deposit of rent in its very nature under the statute aforesaid was based on a tentative view of the case and its obedience {{FOOT NOTE}}
(1) PLD 1967 SC 530 (2) 1975 SC MR 200
(3) 1979 SCMR 496 {{FOOT NOTE}} [Mere in italics] ' could be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
11. In view of the aforesaid, we find no merit in the contention that the respondent could be ordered to be evicted only if it was established first that he had not paid the rent at the proper rate on adjudication of these questions by the Controller. The respondent was liable for his defence to be struck off on proof that he had failed to comply with the directions contained in the tentative order for deposit, for which he has given no explanation.
12. ' In the result, this appeal is allowed with costs. The respondent is, however, granted two months to surrender possession to the appellant subject to payment of rent.