' This is an application filed by the appellant under section 16 of the Sind Rented Premises Ordinance,1979 hereinafter referred to as the Ordinance for directing the respondent to deposit rent in Court at the rate of Rs,165 per month from August,1983.
' The brief facts leading to the filing of the above application are that the appellant filed Rent Application No,3277/1982 under section 15 ' of the Ordinance for ejectment on the ground of personal requirement in the Court of learned XIV Rent Controller at Karachi. The above application was resisted by the present respondent. The learned Rent Controller after framing two issues, after recording evidence and hearing of the parties dismissed the appellant's above application by his order, dated 15th May,1983. The appellant being aggrieved by the above order has filed the present appeal which was admitted to regular hearing by an order, dated 25th August,1983. After the above admission order the appellant has filed the above application under section 16 of the Ordinance on 12th September, 1983. The above application has been opposed by the respondent and it has been inter alia pleaded that the above application is not maintainable. It has also been averred that the respondent had deposited rent upto September,1983 in Rent Case No,2391/1982 which was filed by the respondent ; for permission to deposit rent on the appellant's refusal to accept the rent before the filing of the above Rent Case No,3277/1982. It has also been averred that the respondent has been depositing rent regularly.
2. (a) In opposition to the above application, Mr.Ibrahim Moosa Lakhani, learned counsel for the respondent has urged as follows:-
(i) That an application under section 16 of the Ordinance could only be filed before the Rent Controller and not before the High Court.
(ii) That in any case no case has been made out for the filing of the above application.
(b) On the other hand Mr.Iqbal Kazi, learned counsel for the appellant has urged as follows:-
(i) That the High Court being an appellate Court has the same power which the original Court has in respect of the subject-matter and, therefore, the application under section 16 is competent.
(ii) That since the words used in section 16 are that "the Controller 1 shall on an application by the landlord" the Rent Controller as well as this Court is obliged to pass a tentative rent order upon making of an application by a landlord in a pending case for eviction.
3. (a) Adverting to the above first and second contentions, it may be pointed out that it is an admitted position that at the time of filing of the above application under section 16 by the appellant no arreas of rent were outstanding. It is also admitted position that no arrears of rent are now outstanding as the respondent has been regularly depositing the rent in the above Miscellaneous Rent Application No,2391/82. It will be appropriate to reproduce hereinbelow section 16 of the Ordinance, which reads as follows:- "16. Arrears of rent.--(1) Where a case for eviction of the tenant has been filed the Controller shall, on a application by the landlord and after such summary inquiry as he deems fit to make determine the arrears of rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the 10th of every month, until final disposal of the case.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
(3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
(b) It may be highlighted that under the late West Pakistan Urban Rent Restriction Ordinance, 1959, a Rent Controller was under the statutory obligation to pass a tentative rent order after the filing of a written statement by a tenant, whereas under the above quoted section of the Ordinance, there is no such statutory obligation imposed on the Rent Controller. A tentative rent order inter alia for the arrears of rent is required to be passed upon filing of an application under section 16 in a pending ejectment case by a landlord. It has been provided that the Rent Controller, after holding such summary inquiry as he deems fit shall determine the arrears of rent due and shall direct the tenant to deposit the same within such period as the Rent Controller may fix in this behalf and shall also direct the deposit of monthly rent regularly before 10th of each month.
' It may further be noticed that subsection (2) of section 16 provides that where the tenant fails to deposit arrears of rent or to pay monthly rent under subsection (1) his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf. It may also be noticed that under subsection (3) the rent deposited under the preceding subsection (1) shall subject to such order as the Controller may make in this behalf be paid to the landlord at the conclusion of the case or such earlier date as may be specified by the Controller.
(c) In the instant case no application was filed before the Rent Controller under section 16 of the Ordinance while the ejectment case was pending before him as there was no arrears of rent due and payable and as probably it was not considered necessary by the appellant to file the same.
The present application has been in the above appeal which has been filed against the order of the learned Rent Controller dismissing the appellant's application for ejectment. As observed hereinabove at the time of the filing of the above application under section 16 of the Ordinance or even at the time of hearing of the above application by me no arrears of rent were due and payable as admittedly the respondent has teen depositing rent regularly in the above Rent Case No,2391/82.
' The precise contention of Mr.Lakhani, learned counsel for the respondent is that since the word used in section 16 is "Rent Controller" and not "High Court", no application under section 16 of the Ordinance is competent in an appeal before the High Court, whereas the contention of Mr.Iqbal Kazi, learned counsel for the appellant is that an appeal arising out of rent case is in continuation of the rent proceeding and, therefore, the High Court being appellate Court has the same powers which are enjoyed by the Rent Controller under the Ordinance.
4. (a) Mr.Lakhani in support of the contention has referred to (i) the case of Abdul Ghafoor v.
Ahmad Kunhi P L 0 1969 SC 424, (ii) the case of 8.M. Rashid v. Mrs. Razia Abbas Ahmed P L 0 1971 Kar.468, (iii) the case f Muzaffarali v. Muhammad Shafi PLD 1981 SC 94 and (iv) case of Messrs Haji Ahmad Haji Eassa, Karachi v. Rent Controller and IXth Senior Civil Judge, Karachi PLJ 1983 Kar.164.
(b) On the other hand Mr.Iqbal Kazi learned counsel for the appellant has referred to (i) the case of Sind Employee Social Security Institution and another v. Adamjee Cotton Mills Ltd. PLD 1975 SC 32,
(ii) the case of Sri Lakshmi Narayan and others v. Sri Surath Lal Ghakraborti and others PLD 1964 Dacca 177, (iii) the case of National Sewing Thread Co. Ltd. v. James Chadwick and Brothers Ltd. AIR 1953 SC 357. (iv) the case of Abdul Qayum Ansari v. Salahuddin Qureshi PLD 1974 Kar.10 and
(v) the case of Muhammad Siddiq v. Sultan Ahmed 1979 CLC 394.
5. (a)(i) In the first case the question before the Honouable Supreme Court was, whether an appellate Court can pass an order for striking off defence under section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance) though the tentative rent order was passed by the Rent Controller and not by the appellate Court. The Honourable Supreme Court held that the appellate Court could not have passed the order for striking off defence and while holding this observed inter alia as follows:- "The order contemplated by the first part of section 13(6) is of an interim or interlucutory nature and can not be said to remain effective after the final determination of the proceedings in which it is made. It is worthy of note that the penalties provided under subsection (6) of section 13 for non- compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only by the original Court. In any event such an order does not remain effective after the final determination of the proceedings before the Controller.
' Some arguments were advanced by the learned counsel for the respondent as to whether the Appellate Authority can pass a fresh order under section 13(6) of the Ordinance in an appeal. As no such order was passed in the present case and the direction for ejectment was not given for non- compliance with such an order it is not necessary for me to go into this question in this case."
(ii) As regards the second case relied upon by Mr.Lakhani, namely PLO 1971 Kar.468, it may be mentioned that a learned Single Judge of the erstwhile High Court of West Pakistan, Karachi Bench, held that an appellate Court has no power under section.13 (6) of the late Ordinance to pass itself an order for deposit of rent.
(iii) In the third case the Honourable Supreme Court was pleased to hold that under the late Ordinance the High Court had no power to entertain a review in the Second Appeal either by virtue of any provision under the late Ordinance or under Order XLI or XLVII, C.P.0 and, therefore, it could not have reviewed its own order passed in a Second Appeal.
(iv) Referring to the fourth case relied upon by Mr. Lakhani, it may be stated that the question before a Division Bench of this Court was, whether Rent Controller was competent to decide the question of tenency raised by an objection who was stranger to the rent proceedings, in an execution application in respect of ejectment order passed by the Rent Controller, it was held, that the Rent Controller had no jurisdiction to decide the question, whether the stranger was a tenant in an execution proceeding filed by the landlord against his tenant which culminated in passing of an ejectment order.
(b)(i) Now I intend to take up the cases cited by Mr.Iqbal Kazi. In the first case the question before the Honourable Supreme Court was, whether under section 59 of West Pakistan Employees Social Security Ordinance (X of 1965) in an appeal filed against the order of the institution, the Social Security Court, could pass an interim order in the absence of any express power. It was held that granting of interim relief in a pending appeal is incidental or ancillary to the main appellate jurisdiction. It may be pertinent to quote the relevant observation of the Supreme Court, which reads as follows:- "It is however, important to point out that the power to grant interim relief, in this case is "ancillary or incidental" to the main appellate jurisdiction expressly conferred by the statute. This should not be confused with what is sometimes, claimed as the "inherent" jurisdiction of a Court, a claim which is no longer tenable in view of clause (2) of Article 175 of the Constitution. What is "inherent" is an inseparable incident of a thing or an institution in which it inheres. In the instant case, on the other hand, the power to grant interim relief is exercisable by the Social Security Court, not because of the inherent character or the attribute of the Court itself, but only to enable it to exercise its appellate jurisdiction expressly conferred upon it more effectively and in accordance with what indisputably are requirements of justice and reason."
(ii) Referring to the second case, it may be observed that a learned Single Judge of the Dacca High Court while construing provisions of the East Bengal Service Tenants (Protection) Act, 1952 held that an appellate Tribunal has the same power for the ends of justice to dispose of the matter as the original Court and it is only a change of forum with no real or essential difference in the character of the two forms of Courts except that one is inferior and the other is higher.
(iii) In the third case the Supreme Court of India while considering the question of procedure before an appellate Court under the Trade Marks Act observed that the Act does not provided or lay down any procedure for the future conduct or career of an appeal in the High Court though section 77 of the Act provides that the High Court can if it likes, make rules in the matter. It was held that after an appeal under Trade Marks Act reaches the High Court, it is to be determined according to the rules of practice and procedure of that Court and in accordance with the provision of the charter under which the Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. It was also held that the rule is well-settled that when a-statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court.
(iv) Adverting to the fourth case, it may be stated that a learned Single Judge of the erstwhile High Court of Sind and Baluchistan held that the High Court in Second Appeal under section 15 is competent to exercise powers conferred on Controller under section 13(6) of the late Ordinance and can order deposit of rent during the pendency of the appeal and can strike off defence for non-compliance with such an order but the appellate authority was not competent to strike off defence on the basis of the Rent Controller's tentative rent order. The above case, namely B.M.
Rashid v. Razia Abbas Ahmed PLD 1971 Kar.468 relied upon by Mr. Lakhani referred to hereinabove was dissented from.
(v) As regards the fifth case, it will suffice to observe that a learned Single Judge of this Court observed that an appeal under section 15 of the late Ordinance is a continuation of the original proceeding.
6. From the above cited and discussed cases the following principles ,of law are deducible:-
(i) That an appellate Court under the late Ordinance could not have ordered the striking off defence on the basis of the tentative rent order passed by a Rent Controller.
(ii) That an appellate Court was competent under section 13(6) to pass 4 tentative rent order for depositing of rent and to strike off defence in case of non-compliance of such an order by a tenant.
(iii) That an appellate Court is competent to grant an interlocutory relief or to pass an interlocutory order even in the absence of express provision in the relevant law, in an appropriate case, which power is ancillary and incidental to the power to grant final relief.
(iv) That an appeal arising out of late Ordianance is in continuation of the original application.
(v) That if a statute provides an appeal to an established Court such an appeal shall be regulated by the practice and procedure of that Court in the absence of any contrary express provision in the statute itself.
7. I am inclined to hold that even under the Ordinance an appeal is in continuation of the original proceeding for ejectment before the Rent Controller and that an appellate Court has the power under section 16 of the Ordinance to pass a tentative rent order. However, at the same time I am also inclined to hold that an appellate Court is not obliged to pass a tentative rent order under section 16 and in a fit case it can decline to pass such order. In the instant case no application under section 16 of the Ordinance was filed while the ejectment proceedings were pending before the Rent Controller for the reason that the respondent upon refusal of the appellant to accept rent filed above Miscellaneous Rent Application No,2391/82 in the Court of Rent Controller for the permission to deposit monthly rent (which application prima facie was filed prior to the filing of the ejectment application by the appellant) and that admittedly the respondent has been regularly depositing monthly rent in the above Miscellaneous Rent Application. As observed hereinabove, it is an admitted position that at the time of filing of the present application under section 16 of the Ordinance by the appellant before this Court no rent was in arrears nor it was in arears at the time when I heard the above application on 18th March,1984. I am, therefore, of the view that it is a fit case in which this Court should decline the above application as no case has been made out by the appellant.
It may be observed that section 16 has been primarily enacted in order to ensure that during pendency of an ejectment case the tenant is made to clear the arrears of rent and should not be allowed to be in arrears of rent. This is evident from the caption of the section, namely, "Arrears of rent".
8. For the aforesaid reasons I am not inclined to grant the above application and, therefore, it is dismissed.