' This is a first rent appeal filed by the appellant/tenant against the order dated 30-3-1980 of the Rent Controller, Karachi, striking off the defence of the appellant. Rent Case No, 2485 of 1974 was filed by the respondents on the ground of personal requirement. The following tentative order for rent was passed on 3-12-1975 by the Rent Controller under section 13(6) of Rent Restriction Ordinance, 1959:- "Perused the pleadings of the parties and rent accounts filed by them. The tenancy is admitted but the rate of rent is denied. According to the applicant the rent is Rs, 215 p.m. While the opponent has alleged in his written statement that the rent has been received from him by the applicant at the rate of Rs, 250 p.m. No receipt has been produced to show that the opponent has paid at the rate of Rs, 285 p. m. Tenta-tively I fix the rate as Rs, 215 p.m. In his rent account the applicant has stated that the rent of October and November, 1975 is due to the opponent, The opponent in his accounts statement has stated that he had paid the rent up to October, 1975 through cheques and an excess amount of Rs, 670, is to be adjustable. He has not produced the statement of account from bank. Tentatively I direct the opponent to deposit the rent of November, 1975 at the rate of Rs, 215 p.
In. In the Court before 12-12-1975. He is further directed to deposit the future rent at the same rate before 15th of each calendar month till the final decision of the case."
2. The appellant has complied with this order since it was passed and there has been no default except for the month of February, 1979. According to the order of the Rent Controller the rent for February, 1974 should have been deposited before 15-3-1979, whereas admittedly it was deposited by the appellant on 7-4-1979. Technically, therefore, the default in the deposit of the rent for February, 1979 has been admitted. However, it is the case of the appellant that in fact if excess payment made by the appellant to the respondent prior to the passing of the tentative rent order had been taken into consideration by the Rent Controller before he passed the impugned order dated 30-3-1980 striking off the defence of the appellant, it would have been found that no default had been committed and the defence of the appellant was not liable to be struck off. As observed earlier, the rent for February, 1979 had to be deposited before 15-3-1979 pursuant to the tentative rent order of the Rent Controller. On 30-3-1979 an application under section 13(6) of the 1959 Ordinance was filed by the respondents before he Rent Controller for striking off the defence of the appellant on the ground that be had not deposited the rent for February, 1979 within time. Nazir's report was called for by the Rent Controller and the report shows that the rent for February, 1979 was not deposited till 7-4-1979. On 7-4-1979 a sum of Rs, 860 was deposited which was the rent for February, March, April and May, 1979. Objections were filed on behalf of the appellant on 11-3-198Q wherein the following pleas were raised opposing the application for striking off the defence of the appellant :-
(a) That the application under section 13(6) of the 1980 Ordinance for striking off the defence of the appellant was not maintainable in law as the same had become infructuous after the repeal of the 1959 Ordinance.
(b) That the appellant had never committed any wilful default in payment of monthly rent except for the month of February, 1979.
(c) That a sum of Rs, 670 had been paid in excess from April, 1970 up to October, 1979 and as such this excess was liable for adjustment against future monthly rent at the time of the final determination of the account between the parties by the Rent Controller and the appellant being under the bona fide impression that this amount was liable to be adjusted, he did not deposit the monthly rent for the month of February, 1979 before 15-3-1979 and resultantly no wilful default had been committed.
' The Rent Controller did not accept the objections of the appellant and by his impugned order dated 30-3-1980 struck off the defence of the appellant.
3. I have heard Mr. Ghayur Hussain Qureshi, learned counsel for the appellant and Mr. Ghulam Muhammad Ebrahim, learned counsel, who has appeared on behalf of the respondents.
4. It was submitted by the learned counsel for the appellant that tentative order for rent bad been passed under the 1959 Ordinance and as such, after its repeal and coming into force of the 1979 Ordinance, the defence of the appellant could not be struck off unless a fresh order under section 16 of 1979 Ordinance was passed by the Rent Controller. Another leg of this argument was that in any case after the coming into force of 1979 Ordinance, a fresh application under section 16 of the 197) Ordinance should have been filed and the defence could not be struck off by the Rent Controller on the basis of the application under section 13(6) of the 1959 Ordinance filed by the respondents at a time when the 1959 Ordinance was in force but it had stood repealed before the impugned order dated 30-3-1980 was passed by the Rea Controller. I find no merit in this objection.
I have already taken the vi in the case of Imran v. Qamar Sultan Begum (1) that if an order had been passed under section 13(6) of the 1959 Repealed Ordinance, it did not die on the repeal of the 1959 Ordinance and the coming into force of the 1979 Ordinance and that in such a case it was not necessary for the Rent Controller to pass a fresh order for deposit of rent under section 16 of the 1979 Ordinance and that non-compliance of the Rent Controller's order passed under section 13(6) of the 1979 Ordinance entitled the landlord to file an application under section 16 of the 1979 Ordinance for striking off the defence of the tenant.
5. No decision to the contrary was cited by the learned counsel for the appellant and I see no reason to change the view that I have taken in PLD 1982 Kar.
908. As observed earllier further argument in this connection was that a fresh application under section 16 should have been filed by the respondents. In my view, this was not necessary. The tentative order dated 3-12-1975 for deposit of rent remained in force even after the repeal of the 1959 Ordinance, and an application under section 13(6) of the 1959 Ordinance filed prior to the repeal of the 1959 Ordinance could be disposed off by the {{FOOT NOTE}}
(1) PLD 1982 Kar. 908 {{FOOT NOTE}} Rent Controller under the 1979 Ordinance and it was not necessary in such a case for the landlord to file a fresh application under section 16 of the 1979 Ordinance.
6. The other contention of the learned counsel for the appellant was that there was only one default and therefore, it may not be treated as a wilful default, moreso, as the appellant had never defaulted in the deposit of any other month since 1975. I find no merit in this argument also. Even one default by a tenant can be a lawful basis for the Rent Controller to strike off B the defence of a tenant.
7. The main argument of the learned counsel for the appellant was that at the time the tentative rent order dated 3-12-1975 was passed, the Rent Controller had before him rent account filed on behalf of the appellant which had shown that an excess amount of Rs, 670 had been paid and as such at the time of considering the application for striking off the defence, the Rent C Controller should have held an enquiry as to whether in fact the excess amount had been paid and if his finding was that excess amount had been paid adjustment should have been granted in which event the Rent Controller would have come to the conclusion that no default had been committed.
In this connection learned counsel for the appellant referred to the text of section 13(6) of the 1959 Ordinance particularly the last sentence in that subsection which is to the following effect :- '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. Learned counsel also relied upon a decision of a learned Single Judge of the Lahore High Court reported in Bashir Ahmad v. Nisar Ahmad (1). Reference was made to the following observations in the Lahore case :- "In the present case the amount was liable to adjustment towards the rent and therefore ought to have been taken into consideration while passing an order under section 13(6) or determining ,the amount for the non-compliance of the order. It is, therefore, held that the respondent was not bound to pay the rent in advance as per the contract and he having paid a sum of Rs, 2,000 as an advance rent liable to adjustment towards the monthly rent, therefore, ought to have been taken into consideration in passing the order under section 13(6) or considering the default for the non- compliance thereof."
9. Reference may be made here to a recent judgment of our Supreme Court reported in Akhtar Jehan v. Muhammad Azam Khan (2). The facts of that case were that an ejectment application had been filed on the ground of non-payment of rent. The tenant's defence was that he regularly paid the rent to the landlord but no receipt was issued to him and after sometime he had started depositing the rent in a miscellaneous rent case. The Rent Controller directed the respondent to deposit arrears of rent less the amount already deposited by the tenant in the miscellaneous rent case. The tenant failed to comply with the tentative order for deposit of rent and applied to the Rent Controller for amendment of the order for deposit of rent on the plea that he had along asserted that he had paid to the landlord rent up to a particular period directly and therefore the period of arrears to be covered by the tentative order for deposit of rent should have commenced from the month after the period for which he had already paid the rent directly to the landlord. The Rent Contraer dismissed the amendment application holding that he had passed a correct order for deposit of rent and the contention of the {{FOOT NOTE}}
(i) PLD 1980 Lah. 302 (2) PLD 1983 SC 1 {{FOOT NOTE}} tenant that he had paid the rent for a certain period to the landlord and that the landlord had not issued receipts, had been considered by the Rent Controller. An application for striking off the defence of the tenant was filed, which was allowed. The tenant filed an appeal before the High Court. A learned Single Judge of this Court, accepting the contention of the tenant, held that in the face of a dispute as to the quantum of arrears of rent, mere assertion on the part of the landlord that no rent was paid, was tantamount to improper exercise of jurisdiction to determine the amount of arrears of rent approximately in terms of section 13 (6) of the 1959 Ordinance. The appeal was accepted and the following direction was made by the learned Single Judge :- "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 the 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 the noncompliance thereof, cannot result in the defence being struck off."
' A petition for leave was filed by the landlord before the Supreme Court. Leave was granted and appeal of the landlord was finally accepted and the order of the Rent Controller was restored. In the aforesaid judgment of the Supreme Court after referring to the facts of the case and to section 13(6) of the 1959 Ordinance, the Supreme Court observed as follows :- "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 non-compliance 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, than 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 PLD 1967 SC 530. 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 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 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.")
' 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 (I). In Mushtaq Hussain v. Muhammad Shafi (2), 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 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."
' 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."
10. Supreme Court of Pakistan has, therefore, decided in the aforesaid judgment that the tenant's defence was liable to be struck off on proof that he had failed to comply with the directions contained in the tentative order for deposit of rent, for which he had given no explanation. It was also observed by the Supreme Court that section 13(6) of the 1959 Ordinance makes it clear that for the purposes of passing a tentative order for deposit of rent, the Rent Controller is not required to determine the question of quantum or rate or rent finally, if the same is in dispute but is required to determine such amount approximately and therefore, the consequence of non {{FOOT NOTE}}
(1) 1975 SCMR 200 (2) 1979 SCMR 496 {{FOOT NOTE}} compliance of such approximate determination is the summary disposal of the case without any further proceedings, ipso facto on the basis of such noncompliance by striking off the defence and passing the order of eviction. In the instant case the appellant/tenant had taken up the position at the time of the passing of the tentative order of rent that he had paid Rs, 670 in excess. This contention of the appellant was taken into consideration by the Rent Controller but while passing the tentative order of rent, he observed that the bank account had not been produced by the appellant and as such in the tentative order the amount claimed as excess paid by the appellant was not given adjustment.I see no illegality have been committed by the Rent Controller in not giving adjustment of this excess amount claimed by the appellant at the time he passed the tentative order for deposit of rent. Following the law laid down by the Supreme Court, it may be observed that if there is an admitted default or non-compliance of the order of the Rent Controller and no explanation is given for the delay in deposit or for non-deposit, the Rent Controller has to strike off the defence of the tenant. Possibility cannot however, be ruled out of cases where the tentative rent order is arbitrary or capricious on its face. For instance the tenant might have in his statement of account referred to certain payments made by him to the landlord, which payment is accepted by the landlord before or at the time the tentative order for rent is passed and in respect of this the Rent Controller passes an order G for deposit of rent without giving adjustment of the amount admittedly received by the landlord. In such cases the Court might take the view that default is not committed if the amount involved in the default is covered by the amount admittedly received by the landlord. However, the instant case, it has not been shown that the tentative order of rent dated 3-12-1975 of the Rent Controller is arbitrary or capricious. As observed earlier, the appellant had taken up the plea that he had paid an excess amount of Rs, 670, but this contention of the appellant was duly taken note of and the Rent Controller, while passing the tentative rent order, did not give adjustment of this amount on the ground that requisite evidence has not been placed before him.
11. In my view, a correct order has been passed by the Rent Controller striking off the defence of the appellant on the basis of admitted default in the payment of rent for the month of February, 1979 and I see no reason to interfere with the order passed by the Rent Controller. As a result, First Rent Appeal No, 397 of 1980 is dismissed but with no order as to costs. The appellant is, however, granted time till 31-5-1983 to vacate the premises.