1. This First Rent Appeal arises out of the order dated 23rd January,1983 passed by the IXth Senior Civil Judge and Rent Controller at Karachi in Rent Case No,4489 of 1976 dismissing the application of the appellant moved by him on 5th January, 1979 for striking off the defence of the respondent/opponent.
2. The facts which give rise to this appeal are that, the appellant is a landlord of Shop No,51, Mohammad Rahim Market, S.D.15, Block 'A', North Nazimabad, Karachi, and the respondent is tenant of the appellant at an agreed monthly rent of P-100 plus Rs,11.50 (as conservancy and water charges). The respondent was inducted in the said shop in May 1974. The appellant filed ejectment application on the grounds, namely default for the period of 1st July,1976 to 31st October,1976, and committed acts as are likely to impair materially the value or utility of the said shop and has been guilty of such acts and conducts as are a nuisance to the other occupants of the said building.
During the proceedings the parties filed rent statements. The Rent Controller by his order directed the respondent to deposit rent and conservancy and water charges at Rs,11.50 per month. The respondent defaulted in the deposit of rent with the Nazir of this Court for the month of June, 1978, and the appellant moved an application on 5th January,1979 for striking off the defence of the respondent before proceeding further in the matter as was contemplated under section 13(6) of the Ordinance, 1959. The Rent Controller passed an order dated 16th April,1980 whereby he deferred passing any order on it to final stage while disposing of the main Rent Case No,4489 of 1976, the Rent Controller did not pass any order on the interlocutory application nor touched the points raised therein for consideration, but, otherwise allowed the application of the appellant. The respondent filed an appeal in this Court being F.R.A. No,611 of 1981 which was disposed of on 17th January, 1982, and the case was remanded for disposing of the application in accordance with law.
After hearing the parties the learned Rent Controller by his order dated 23rd January,1983 dismissed the application. The appellant being aggrieved with the order dated 23rd Januray,1983 has preferred this appeal on the grounds mentioned in the Memo of Appeal.
3. Mr. Khurshid Anwar Shaikh, learned counsel for the appellant has contended that the respondent had not complied with the tentative rent order and has committed default in depositing rent for the month of June,1 1978.
4. On the other hand, Mr.Mohammad Ayaz Khan, learned counsel for the respondent has contended that no default was committed by the respondent. In view of fact that the very tentative rent order passed by the Rent Controller on 6th March,1978 was defective as the appellant was not entitled to Rs,11.50 per month on account of water and conservancy charges as no such services were rendered by the appellant/applicant to the respondent/ opponent which is. Evident from the admission of the appellant/applicant in his cross-examination. The appellant in his cross- examination stated as under:- "It is correct to say that there is no water connection in the shop in dispute."
5. The following tentative order for rent was passed on 6th March,1978 under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959. "Heard the learned Advocate for the applicant and opponent in person on settlement of rent account. According to the Advocate for the applicant the rent is Rs,100 per month plus water and conservancy and the other charges amounting to Rs,11.50 paisa per month. The opponent states that he is depositing the rent as well as the charges in Rent Misc. Application No,103/1977 but has not specifically stated the period from which he is depositing these charges in Court. The applicant claims the arrears from July 1976, I direct the opponent to deposit Rs,100 plus Rs,11.50 paisa per month from July 1976 to February 1978 i,e, for 20 months amounting to Rs, 2,230 before 15th April,1978 less the amount deposited by the oppondent in rent miscellaneous application. The opponent is also directed to deposit rent for the month of March 1978 before 15th April, 1978 and continue to deposit rent of every month before 15th of each current month till disposal of case."
6. The respondent has complied with the above rent order since it was passed and there has been no default except for the month of June 1978. According to the order of the learned Rent Controller the rent for the month of June 1978 should have been deposited before 15th July,1978, whereas it was admittedly deposited by the respondent on 2nd August 1978 vide receipt No,6558. According to the appellant this was a default and which has been admitted by the respondent. However, it is the case of the respondent that in fact excess amount was paid to the appellant as the respondent was not entitled to pay water and conservancy charges to the appellant as no such services were rendered by the appellant to respondent which is evident from the admission of the appellant in his cross-examination.
7. The learned counsel for the respondent referred me to unreported judgment of this Court in the case of Anwar Ali v. Mst.Sughra Begum (F.R.A. No, 432 of 1980) decided by my learned brother Mr.K.A.Ghani, J. It is advantageous to reproduce as under:-; "In the circumstances, as required by section 13(6) the learned Rent Controller was obliged to have determined the amount of arrears of rent approximately due and not to pass a vague order. The order of deposit of rent in the circumstances of this case passed by the Controller on 4th February, 1979 being vague and direction given a departure from section 13(6) coupled with the fact that the Controller was under wrong "assumption that landlord claimed rent at the rate of Rs,200 while the tenant was pleading that the rate of rent was Rs,300 cannot be treated to be strictly in confirmity with the provisions of section 13(6) as laid down in the case of Mohammad Aslam v. Muhammad Umar P L 0,1982 Kar.107.
The upshot of the above discussion is that since the impugned order dated 4th February,1979 was not in order. In confirmity with the provision of section 13(6), the same being vague, non- compliance thereof could not result in striking off the defence and summary ejectment of the tenant."
' The facts of the above case are not applicable to the facts of this case.
8,. Reference may be made here to a recent judgment of Supreme Court in Akhtar Jehan v.
Muhammad Azam Khan PLD 1983 SC 1. In this case the Supreme Court held as follows:- " The plain reading of the above provisions 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, 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. 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 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 correlatively 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)."
' 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. Jawed Qureshi 1975 SCMR 200. In Mushtaq Hussain v. Muhammad Shaif 1979 SCMR 496, this Court repelled a somewhat similar contention in the following words:- "The order directing deposit of rent in its very nature under the status 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 fide 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 contantion 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."
9. In the instant case, the learned counsel for the respondent has contended that as the appellant has not been providing any services to the respondent as such he is not entitled to recover Rs,11-.50 on account of water and conservancy charges and the respondent has paid amount in excess and the respondent is entitled to adjustment. I see no illegality in the tentative rent order. I am of the view that if there is any admitted default or non-compliance of the order of the Rent Controller and no explanation is given for delay in deposit, the Rent controller has to strike off the defence of the tenant.
10. In the circumstances, the order dated 6th March,. 1978 was in conformity with the provisions of section 13(6), the same being not vague and not capricious and no illegality has been pointed out by the learned counsel for the respondent. The non-compliance thereof could result in striking off the defence and summary ejectment of the tenant/respondent.
11. In these circumstances, the order dated 23rd November,1983 is set aside on the basis of admitted default in payment of rent for the month of June 1978. In the result this First Rent Appeal is allowed with no orders as to costs. The respondent is, however, allowed four months' time to.
Vacate and hand over the premises to the appellant, provided he will continue to deposit rent in accordance with the tentative order of the learned Rent Controller, failing which the Writ of Possession will be issued without any notice to the respondent.
' There shall be no orders as to costs.