' This is a First Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1970 against the order dated 1-11-1983 passed by the !Ind Senior Civil Judge/Rent Controller in Rent Case No.285/1983 striking off the defence of the appellant and directing him to put the respondents in vacant possession of the premises being Flat No.2, Khatoon Manzil, Amil Colony, Karachi within 45 days.
2. The facts leading to this appeal, briefly stated, are that the appellant is a tenant in respect of the premises in question at a monthly rent of Rs.130. The building in which this premises is situate previously belonged to one Mst. Sadiqa Khatoon who died in early 1977. The tenant though received no notice of the change of ownership by inheritance under section 13(a) of the West Pakistan Urban Rent Restriction Ordinance, 1959, on his own inquiry tendered the rent to the legal representatives of the deceased landlady, the respondents. The rent for the month of February and March, 1977 having not been accepted by the respondents, he filed a Miscellaneous Rent Application No.1288 of 1977 before the Controller of the area concerned seeking permission to .deposit rent of the premises in that Court. The learned Rent Controller permitted the appellant to deposit the rent in Court and consequently the tenant/appellant has been depositing the rent due in the Court of Controller since March, 1977. The first deposit of rent was made by him on 27-4-1977 when he deposited the rent due in the Court and kept on depositing thereafter, the rent falling due on various dates.
3. On 19-1-1983 the respondents filed an ejectment application against the appellant bearing No.285/1983 on the ground of default in payment of rent by the appellant since March, 1977. The appellant denied the same in the written statement and stated that he has been depositing the monthly rent due in court in Miscellaneous Rent Application No.1288/1977. The alleged default was, thus, denied.
4. To determine the arrears of rent and pass a tentative rent order as required under section 16(1) of the Sind Rented Premises Ordinance, 1979, the respondents filed an application on 19-1-1983 claiming arrears of rent from March, 1977 to December, 1982. The appellant filed his statement of rent account in reply to the said appli cation on 19-2-1983 wherein he stated that rent of Rs.130 has been deposited by him from February, 1977 upto date i.e. January, 1983 in Miscellaneous Rent Application No.1288/1977; hence no arrears. The learned Rent Controller after hearing the learned counsel for the parties passed the following order on 31-3-1983:- "Perused the pleadings of the parties and heard their learned counsel. It is not disputed that the opponent has failed to pay rent to the applicants directly for the reasons assigned in the WaS. from 3/1977 to 4/1983 at Rs.130 per month. This amount may be withdrawn by the opponent from the Miscellaneous case and deposit as arrears of rent from 3/1977 to 2/1983 at Rs.130 amounting to Rs.9,360 plus for the months of 3/1983 and 4/1983, on or before 30-4-1983. I, further order that now onwards from 5/1983 the opponent should deposit rent at Rs.130 per month on or before 10th of each calendar month till final disposal of this case. As regards the claim for Rs.80 water charges from 1/1981 till further period the same will be held over and decided after recording of evidence at the time of final orders in this case."
5. On 9-6-1983 an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 was moved by the respondents alleging that the order dated 31-3-1983 passed by the learned Rent Controller directing the appellant to deposit Rs.9,360 as arrears of rent form March, 1977 to February, 1983 on or before 30th April, 1983, has not been complied with and as such the appellant's defence is liable to be struck off. The appellant filed his objections to the said application alleging, inter alia, that the order dated 31-3-1983 of the learned Rent Controller purported to have been passed under section 16(1) of the Sind Rented Premises Ordinance, 1979 is illegal and contrary to the provisions thereof and as such is ultra vices and of no legal effect. The learned Rent Controller, however, struck off the defence of the appellant by his order dated 1-11-1983 which has been impugned in this appeal.
6. I have heard Mr. Fazal Bhoy, learned counsel for the appellant and Mr.Muhammad Salim Qureshi, learned counsel for the respondents.
7. Mr.. Fazal Bhoy has raised the contention namely, that the order dated 31-3-1983 and the order dated 1-11-1983 resulting in the striking off the defence of the appellant are illegal and of no effect firstly, because there was no arrears of rent when the order dated 1-3-1983 was passed and secondly, because the learned Rent Controller could not pass an order for deposit of rent part of which had already become time-barred.
8. In support of his contention Mr. Fazal Bhoy submitted that section 16(1) of the Ordinance comtemplates passing of an order for the deposit of arrears in the Court after the determination of the arrears. As there were no arrears in this case the learned Rent Controller was not at all competent to pass an order for the deposit of arrears. He relied on the provisions of section 10 of the Ordinance.
9. It will be convenient to quote the two provisions relevant for the purpose of deciding this appeal namely sections 10(3) and 16(1) and (2) and also the order dated 1-11-1983 which read as under:- "Section 10(3).--Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate."
"Section 16(1) and (2)--Arrears of rent.--(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the 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 tenth 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."
ORDER DATED 1-11-1983: Heard. By an order dated 31-3-1983 the opponent was ordered to deposit arrears of rent from 3/1977 to 2/1983 amounting to Rs.9,360 before 30-4-1983 and to deposit further rent on or before 10th of following months. He was also ordered to withdraw rent already deposited in Miscellaneous Rent Case and deposit in this case.
' According to Nazir's report he has deposited only Rs.780 on 19-4-1983 in this case. The plea of opponent is that the order was illegal but I am not sitting in appeal on this order. His application for review of the order was already rejected.
' The opponent has, therefore, intentionally failed to comply with the order of deposit of arrears of rent of Rs.9,360 in this case hence his defence is hereby struck off and he is ordered to vacate the premises and hand over vacant possession thereof to the applicant within 45 days from today."
10. Learned counsel for the appellant has relied on two decisions namely: Muhammad Aslam v.
Muhammad Umar and another PLD 1982 Kar. 107 and United Bank Ltd. v. Aijaz Amin 1983 CLC 530.
11. The first case decided by a learned Single Judge of this Court the case was remanded as it was found that the learned Rent Controller had failed to specify the approximate amount of arrears in clear terms to enable the tenant to deposit the same. It was, therefore, observed that if the Controller has passed an 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) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
12. In the second case 1983 CLC 530 decided by a learned Single Judge of this Court it was held that "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." It appears that in this case as well the arrears have been deposited in a Rent Miscellaneous Application by the appellant/tenant.
13. I have perused the order dated 31-3-1983 and find that the amount of arrears to be deposited has been specified to be Rs.9,360. In view of this determined amount of arrears the two decisions relied on by Mr.Fazal Bhoy have no direct application to this case. However, the question, for determination which has arisen in this case is whether any amount of arrears was at all due from the appellant. In view of his statement, which has not been controverted by the respondents, he had already deposited the entire amount of arrears claimed in the application as well as the rent account submitted by the respondents. Section 10 of the Ordinance with the Heading "Payment of Rent" contemplates that the rent can be paid by the tenant to the landlord who shall acknowledge the receipt thereof in writing and if the landlord refuses or avoids to accept the rent it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. From reading the written statement it is clear that at first the appellant tendered the rent to the respondent which A having been refused by the respondent he sent by money order which again having been refused by the respondents, he had no option but to turn to the third alternative provided in the Statute i.e. he made an application to the Controller within whose jurisdiction the premises was situate for permission to deposit the rent in Court. On obtaining permission from the Controller he deposited the arrears then found due as well as continued to deposit the future monthly rent and according to the statement filed by him the rent upto January, 1983 was deposited in the Court by him and thus stood duly paid as required under section 10 (3) of the Sind Rented Premises Ordinance, 1979. In my view, therefore, there were no arrears on 19-1-1983 when the application under section 16(1) of the Ordinance was filed by the respondents. The order passed by the learned Rent Controller directing the appellant to deposit Rs.9,360 on account of arrears was, therefore, bad in law. In any case, the learned Rent Controller had no jurisdiction to direct the appellant to deposit the arrears of rent from March, 1977 to January, 1983 part of which had already become time barred. Reliance is placed on the case of Ashfaqur Rahman v. Muhammad Afzal PLD 1968 SC 230.
14. Mr. Muhammad Salim Qureshi, learned counsel for the respondents, however, contended that once the order under section 16(1) of the Ordinance is passed, it has to be complied with. In case it was without lawful authority a Constitutional petition should have been filed by the appellant. He placed his reliance on 2 cases reported as Ziaullah Shah v. Syed Riaz Ahmed 1981 SCMR 538 and Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1.
15. Both the cases cited above are distinguishable inasmuch as they relate to the determination of the tentative rent and no objection could be taken by the tenant against the order fixing the rent tentatively by the learned Rent Controller in appeal. The proposition as laid down by the Honourable Supreme Court is quite correct as the final determination of the rent is to follow at the time of final hearing of the ejectment application. In the instant case the situation is quite different inasmuch as the very jurisdiction of the learned Rent Controller to pass the order dated 31-3-1983 and the resulting order dated 1-11-1983 is under challenge.
16. In the case reported as Syed Ahsan Ali v. Jaffar Ali and 4 others PLD 1964 Kar. 418 a Division Bench of the Erstwhile High Court of West Pakistan Karachi Bench comprised of Inamullah, J. and Wahiduddin, J. (as the Honourable Judges were at that time) it was held that if an order for the deposit of rent and future rent having not been passed in conformity with the provisions of law, the tenant is not liable to be evicted for not complying with such defective order. The relevant observations read as under:- "A similar question was considered by us in Second Appeal No.99 of 1964. That was a case under the West Pakistan Urban Rent Restriction Ordinance, 1959. The language of both the provisions of law is identical. In that appeal we have held that such provisions of law being of a penal nature must be strictly followed. If orders in respect of the arrears and future rents are not passed in strict conformity with its provisions, the tenant is not liable to be evicted for not complying with a defective order."
' The above view as expressed in PLD 1964 Kar. 418 was followed in another case reported as Khair Muhammad Nizamani v. Abdul Quddus PLD 1965 (W.P.) Kar.
367.
17. I may also refer to another case reported as Moula Bux Bhutto v. Muhammad Hussain 1983 CLC
277. The learned Single Judge of this Court in this case held that a tenant whose defence has been struck off on account of non-compliance of the order of deposit of rent is entitled to show that the order was invalid, and therefore, its non-compliance cannot result in his eviction. The case reported as Ikram-ul-din v. Syed Mahboob Ahmed PLD 1978 Kar. 145 was referred to and relied upon by the learned Single Judge.
18. It is now well-settled that no appeal lies against an interlocutory order passed by the learned Rent Controller but it will be open to the tenant to challenge the said order in appeal. In view of this there is C no estoppal against the appellant to raise the plea that the order for depositing of arrears of rent being illegal and without jurisdiction, its non-compliance will not result in eviction.
19. For the reasons discussed above, I set aside the impugned order dated 31-3-1983 passed by the learned Rent Controller to the extent of the arrears of rent and the order dated 1-11-1983 for eviction, allow this appeal and remand the case to the learned Rent Controller for further proceedings according to law and decision on merits. There will be no order as to costs.
20. Before parting with the case, I would like to observe that when I asked Mr. Fazal Bhoy as to why he did not withdraw the amount of arrears and deposit the same in this rent case, he submitted that the amount was deposited by the appellant for the benefit of the respondent and he (the appellant) was not entitled to withdraw the amount and he would have no objection if the respondents withdraw the amount deposited in Miscellaneous Application No.1288/77. I would accordingly order that the respondents will be entitled to withdraw the amount of arrears deposited by the appellant in Miscellaneous Rent Application No.1288/77. If there is any default in the payment of rent which constitutes a default within the provision of section 16 of the Ordinance, the respondents will be at liberty to take such steps for the eviction of the appellant as permissible under the law. I may further clarify that any observation made by me in this judgment with regard to the payment of arrears is tentative in nature and is meant only for the purpose of the application under section 16(1) of the Ordinance and this appeal, which will not be allowed to stand in the way of the learned Controller at the time of final determination of arrears of rent found due against the appellant or any default thereof. . Case remanded.