' NAIMUDDIN, .1.-Tbis appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance), is from the order dated 13-10-1982, passed by XII Senior Civil Judge/Controller, Karachi, in Rent Case No, 3540 of 1978, whereby the defence of the appellant was struck off under section 16(2) of the Ordinance for non-compliance of the order of the Controller, dated 23-9-1979.
2. On 23-9-1979, the Controller directed the appellant to deposit arrears of rent from July, 1977, to August 1979, at the rate of Rs, 160 per month amounting to Rs, 2,600 in the Court before 12th of October, 1979, He further directed the appellant to deposit future rent from September, 1979 at the rate of Rs, 100 per month till the final disposal of the case before the 15th of each calendar month.
He also directed that the amounts of rent deposited in any Miscellaneous application in the name of the respondent till the date of his order be adjusted against the amount of arrears of Ps, 2,600
3. The appellant failed to comply with the above order and therefore his defence was struck off under section 16(2) of the Sind Rented Premises Ordinance, 1979, giving rise to the present appeal.
4. We have heard Mr. Siraj Ahmed learned counsel for the appellant and Mr. Abdul Karim Siddiqui learned counsel for the respondent.
' It is contended by Mr. Siraj Ahmed that the order, dated 23-9-1979, passed by the Controller under section 13 (6) of the Sind Urban Rent Restriction Ordinance, 1959, was not in accord with the provisions under which it was passed and therefore, its non-compliance would not have resulted in the striking off the defence of the appellant. The submission of the learned counsel for the appellant is that instead of determining the amount of arrears of rent, the Controller left it to be determined by the appellant though under the law it was he who was required to determine it.
' Reliance is placed by the learned counsel on unreported decisions of this Court in Anwar All v. Mst.
Sughra Begum F. R. A. No, 432 of 1950, Mst. Wilayat Jan and others v. Shah Saeed F.R.A. No, 77 of 1982 and Sayeda Elate Asghar v. All Ghazanfar and another F. R. A. No, 245 of 1982 and respected judgments in Muhammad Aslam v. Muhammad Umar and another (1) and United Bank Limited v.
Aijaz Amin (2).
5. In order to appreciate the contention we may first quote the provisions of section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959, which read as follows : "13(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 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."
6. A perusal of the above-quoted provisions of section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959, shows that the Controller I required to direct the tenant to deposit all the rents due from him and also to deposit regularly till the final decision of the case before fifteenth of each month the monthly rent due from him and if there is any dispute about the amount of rent due or the rate of rent the Controller is required to determine such amount approximately and direct the same to be deposited by the tenant before a date to be fixed for that purpose. Now, in this case there was dispute as to the amount of rent as well the rate of rent and it was the Controller who was required to determine the same but when the Controller left the determination of the amount due to the tenant then he did not, in
(1) PLD 1982 Kar. 107 (2) 1983 CLC 530 our opinion, act in accordance with law for, he left the determination of the amount due from the appellant to him as he allowed him to deduct the amount of rent deposited by him in Misc. Rent Application from the amount of Rs, 2,600 which were tentatively found to be in arrears. There may be cases in which in such a situation a tenant may deduct more amount than what he actually deposited, which will lead to further dispute which will still require determination of the controversy by the Controller. Under section 13(6) of the Ordinance or under section 16(1) of the Sind Rented Premises Ordinance, 1979, the Controller is required to determine the amount of rent due and, if he leaves the determination of the amount of rent B due to the tenant he does not comply with the provisions thereof. Therefore, so far as the order as to the deposit of arrears of rent passed in the present case is concerned it was, in our opinion not in accordance with the law.
6. Now, taking up the cases cited we may first refer, to Mahammad Aslam v. Muhammad Umar. In this case Mr. Justice Saleem Akhtar while dealing with a similar contention as raised before us observed as follows : "If the Controller has passed any order which does not determine the amount approximately and is vague leaving the calculation to the parties or any other person then it will not be an order strictly in compliance with the provisions of section 13(6)."
' The learned Judge further observed that the provisions of subsection (6) of section 13 of the Sind Urban Rent Restriction Ordinance, 1959, being penal in nature, the order passed thereunder must strictly comply with the provisions thereof. He also observed any deviation or departure from the provisions of section 13(6) will disentitle the landlord from seeking any eviction for non-compliance thereof. In observing so the learned Judge relied on a Division Bench Judgment of this Court in Syed Ehsan All v. Jafar All and 4 others (1) wherein it was observed as follows : "Such provision of law being of a penal nature must be strictly followed. If orders in respect of the arrears of future rent are not passed in strict conformity with its provision the tenant is not liable to be evicted for not complying with a defective order."
' We may state that Syed Ehsan Ali's case was followed by another Division Bench of this Court in Khair Muhammad Nizamani v. Abdul Quddus (2).
' The learned Judge followed this judgment in another case being Mst. Wilayat Jan and others v.
Shah Saeed F. R. A. No, 77 of 1982.
7. The view taken by Saleem Akhtar, J., has been followed by Mr. Justice B. G. N. Kazi in The United Bank Ltd. v. Aijaz Amin, wherein he observed as follows : "The tentative rent order reproduced earlier above has left the amount of arrears to be determined after verification of the amount that may have been deposited in his account by the appellant.
Although there are indications as to verification of account and then arriving at the correct amount it can hardly be considered as approximate determination of the same envisaged in the provision of law referred to above."
8. In Anwar Ali v. Mst. Sughra Begum F. R. A. No, 432 of 1980, Mr. Justice K. A. Ghani set aside the order of eviction and remanded the case for passing fresh order under section 16(1) of the Ordinance and in doing so
(1) PLD 1964 Kar, 418 (2) PLD 1965 (W. P.) Kar. 367 ' the learned Single Judge followed the case of Muhammad Asian? v. Muhammad Umar and observed as follows : "The principles laid down in the above-referred case of Muhammad Aslant are fully applicable to the facts of the present case. From the perusal of the order, dated 4-2-1979, it is evident that the learned Rent Controller was conscious of the fact that there was serious dispute between the parties as to the period for which the rent was due as well as rate of rent which was payable. The landlord had claimed rent from April, 1975 at the rate of Rs, 300 while according to the tenant rent was due from April, 1978 and the rate of rent was stated to be Rs, 200 ; though the learned Rent Controller due to some confusion observed that the landlord was claiming rent at the rate of Rs, 200 while according to the tenant the rate of rent was Rs, 300.
' 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 for deposit of rent in the circumstances of this case passed by the Controller on 4-2-1979, 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 conformity with the provisions of section 13(6) as laid down in the case of Muhammad Aslam v. Muhammad Umar PLD 1982 K ar.
107.
9. One of us namely, Mr. Justice Muhammad Zahoorul Haq had the occasion to deal with a similar question in Sayeda Binte Asghar v. All Ghazanfar and another F. R. A. No, 245 of 1982 and observe as follows : "7. There is another aspect of the case which is probably more important and that is that section 16 of the Sind Rented Premises Ordinance, 1979 requires the Rent Controller to determine the arrears which are deposited but in the present case the Rent Controller did not determine the final amount which was to be deposited by the respondent but allowed the adjustment of the amount already deposited by the respondent from the amount of Rs, 39,200 calculated as the arrears.
' The result is that the calculation of the amount which was to be deposited eventually by the respondent was left with the respondent and to that extent there was a clear illegality in the order as one which was not passed under the provisions of section 16 of the Sind Rented Premises Ordinance, 1979. Since the non-compliance of the stay order entails penal consequences of the striking off the defence therefore the order passed under section 16 has to be strictly in accordance with the provisions of the said section and in case the departure is made by the Rent Controller then the order looses the sanctity."
' In this case the learned Judge also placed reliance on the judgment of Saleem Akhtar, J., in Muhammad Aslam's case.
10. It will, therefore, appear that it is the consistent view of this Court that a Controller while passing order under the provisions of section 13(6),, of the Sind Urban Rent Restriction Ordinance, 195), and section 16(i) of the' Sind Rented Premises Ordinance, 1979, must strictly comply with the proviions thereof for, the non-compliance of the order results in eviction of the tenant from the rented premises and, if an order passed is not strictly in accordance with the provisions of section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959, or section 16(1) of the Sind Rented Premises Ordinance, 1979, such an order would be illegal and non-co,npliance thereof would not entail the consequences of eviction of the tenant from the rented premises.
11. However, the decision of the aforesaid question in favour of the appellant would not make him entitled to succeed in this appeal for he has not also complied with the order of the Controller as regards the deposit of future rent and committed default also in respect thereof. However, it is submitted by Mr. Siraj Ahmed that if the basic order was illegal, the subsequent order of deposit of future rent must also fall. He attempt to support the submission by relying on the Supreme Court's Judgment in Yousuf Ali v. Muhammad Aslam Zia (1) wherein the learned Judges of the Supreme Court held that if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.
12. The rule laid down by the learned Judges of the Supreme Court in the aforesaid case is in our opinion not applicable to the order passed by the Controller for the direction given by the Controller for deposit of future rent is not based on the earlier order as to deposit of arrears of rent.
Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all that his order as a whole would be illegal. It is not disputed that the Controller had jurisdiction to pass the second direction as to deposit o future rent as contained in the order, dated 23.9.1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though that may be contained in one order for the reason that there may be cases where there may not be any arrears or rent to be paid. In such cases there will not be any order by the Controller for deposit of arrears of rent. There will be an order only for deposit of future rent and in such case there could be a default in respect of future rent only. We may consider the question from another angle. Assuming the Controller had passed the order of deposit of arrears of rent according to law and also the order of deposit of future rent again in accordance with law and the appellant had complied with the order of deposit of arrears of rent but had not complied with the order of deposit of future rent, still, the tenant would have been liable to be evicted from the premises. Thus, we are clear in our mind that the two directions which are required to be given by the Controller are independent of each other.
13. Mr. Abdul Karim Siddiqui, the learned counsel for the respondent has referred to three cases which support the view which we have taken. These are Kewalram Dayaram Shahani v. Nawab All
(2) and Salahuddin Butt v. Khawja Muhammad Tariq (3), Shaikh Fazal Din v. Dawoodur Rehman and others (4).
(1) PLD 1958 SC 104 (2) PLD 1978 Kar. 79 t3) PLD 1981 Lab. 132 (4) 1983 CLC 470
14. In the first named case the learned Single Judge of this Court observed that the rent order passed by the Controller contained two separate directions for depositing arrears and future rent, same being an order of interim or interlocutory nature it remained operative till the final order was made by the Controller. Reliance was placed on a judgment in Sh. Muhammad Rafiq v. Mian Umar Din (1) wherein it was held that the two provisions about the deposit of amount due and future rent are not cumulative in character and where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. Support was also drawn from the following observations of the Supreme Court in Ashfaqur Rahman Khan v. Muhammad Afzal (2).
"As stated earlier, the first order of the Rent Controller, dated the 24th June, 1959 directing deposit of arrear and future rent was an order of interim or interlocutory nature and the same shall remain operative till a final order is made by the Rent Controller in the pending proceedings for ejectment.
The Rent Controller is yet to make final order in those proceedings. Hence, his first order directing deposit of future monthly rent till continues to remain in force If, in the meantime, the appellants have defaulted in depositing monthly rent pursuant to the first order of the Rent Controller, then, they are at fault for violating that order and, for that reason, they are all the more disentitled to plead the bar of limitation."
15. In second case namely Salahuddin Butt v. Khawaja Muhammad Tariq (3), Muhammad Ilyas, J., followed the view of this Court in Kewalram Dayaram Shahani v. Nawab Ali and held that the fact that in that case the Rent Controller had erred in directing the respondent to deposit rent for the month of October, 1978, as arrears of rent would not invalidate his order in other respects, especially in so far as it required the respondent to deposit arrears of rent for the period for which the arrears had fallen due by the date on which direction for the deposit thereof was made.
16. In the case of Sheikh Fazal Din v. Dawoodur Rahman and others it was contended by the learned counsel that as the first part of the order of the Controller relating to the arrears of rent was not accordance with law, the whole order should be held to be defective. In support of his contention the learned counsel had referred to the cases of Ahsan Ali v. Jeer, Khair Muhammad Nizamani v.
Abdul Quddus and Moinul Haq G. Shaikh v. Mst. Zuleka (4). Repelling the contention of learned counsel Saeeduz Zaman Siddiqui, J., observed :- "At best the result of failure on the part of the Court to specify the date for deposit of the arrears of rent by the Rent Controller would be that in the event of default by the tenant in depositing the arrears of rent in Court, the defence of tenant could not be struck off for such noncompliance but for that reason the non-compliance of a valid direction of Rent Controller with regard to payment of monthly rent could not be ignored."
' Distinguishing the aforesaid cases referred to by the learned counsel, the learned Judge observed : "The defect in the order of Controller in all the above cases was found
(1) PLD 1973 Note 113 at p. 172 (2) PLD 1971 SC 766
(3) PLD 1981 Lah. 132 (41 1975 CLC 650 to be of such a nature which affected the jurisdiction of the Controller to pass the order and therefore, the Courts refused to strike off the defence of tenant for non-compliance of such an order. The defect pointed out by the learned counsel for the appellant in the present case in the order of Rent Controller is not such which could render the whole of the order as void so that its non-compliance could be ignored."
17. We are, therefore, of the view that this appeal fails and we accordingly dismiss it, leaving the parties to bear their own costs.
18. The learned counsel for the appellant requests for one year's time to vacate the premises. Mr. Abdul Karim Siddiqui does not seriously oppose the prayer. We, therefore, allow one year's time to the appellant to vacate the premises subject however, to the condition that he will continue to deposit monthly rent regularly in accordance with the order of the Controller, failing that notwithstanding the time allowed hereby, the appellant shall be liable to be evicted on default being committed by him in deposit of monthly rent.