1. ' This first rent appeal is directed against the order, dated 28th November, 1983 passed by the Second Senior Civil Judge and Rent Controller, Karachi whereby he allowed the application under section 16(2) the Sind Rented Premises Ordinance, 1979 (hereinafter called the said Ordinance).
2. ' The facts giving rise to the filing of this appeal are that the respondent filed Ejectment Application bearing No, 1730 of 1982 against the appellant on the ground of default in the payment of rent and electricity bill, addition and alteration in the premises in question without permission and consent of the respondent and also on the ground of change of purpose for which the premises were rented out. The appellant filed written statement denying various allegations made in the application and stated that the appellant was a lawful tenant since 1976 originally at the rate of Rs,150 per month but later on at the rate of Rs,100 per month under a lawful and validly made agreement by the appellant and the respondent. The learned Rent Controller by an order, dated 8- 11-1982 passed a tentative rent order under section 16(1) of the said Ordinance directing the appellant to deposit rent from 1st October, 1981 up to 31st July, 1982 at the rate of Rs, 150 per month amounting to Rs,1,500 plus Rs,2,144.78 being the electricity charges consumed by the appellant. He was also directed to deposit monthly future rent at Rs,150 per month before 10th of each calendar month till the final disposal of the case, is advantageous to reproduce the tentative rent order passed by the learned Rent Controller which reads as under:- "I, therefore, order that the opponent should deposit arrears of rent from 10/1981 at Rs,150 p.m. Till 10/1982 amounting to Rs,1,950 per month inclusive the electric charges in this Court in this case on or before 10-2-1983. The opponent should also deposit future rent from 11/1982 at Rs,150 p.m. In this Court in this case on or before 10th of each calendar month."
3. ' The respondent filed an application under section 16(2) of the said Ordinance on the ground that the appellant had failed to comply with the order of the learned Rent Controller, dated 8-11-1982 regarding deposit of rent with the Nazir of that Court. The appellant filed reply to the application under section 16(2) of the said Ordinance. It is advantageous to reproduce the relevant paragraphs of the reply which read as under:- "The opponent has deposited up to date rent and according to the agreement admitted on oath by the applicant the opponent's deposit is much beyond the period due against him, truly speaking the deposit by the opponent is almost twice than what actually due and payable against." "It is also, therefore, submitted that this Hon'ble Court in view of the evidence of the applicant be pleased to review its earlier orders, dated 8-11-1982 which was contrary to fact and evidence on record. The case has already concluded and is fixed for final hearing before judgment as such the case may kindly be decided on merits."
4. ' After hearing the arguments of the learned counsel for the parties, the Rent Controller by his order, dated 28-11-1983, allowed the application of the respondent and directed the appellant to hand over vacant possession to the respondent within 30 days from the date of the order.
5. ' The appellant being aggrieved with the aforesaid order has preferred this appeal on the facts and grounds mentioned in the memo. Of appeal.
6. ' Mr. Lqbal Read, learned counsel for the appellant, has contended that the tentative rent order was illegal and has placed reliance in support of his arguments on the case of Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam NLR 1978 civil 96.
7. ' On the other hand Mr. Sadiq, learned counsel for the respondent has contended that the tentative rent order is legal as the appellant has committed default in not complying with the same. As such his defence was rightly struck off by the learned Rent Controller. He has placed reliance on the case of Ikramuddin v. Syed Mehboob Ali PLD 1983 SC 1.
8. ' I have considered the arguments of the learned counsel for the parties and have also perused the impugned order as well as R & P of the lower court. I have also taken into consideration the cases cited by the learned counsel for the parties.
9. ' It is admitted that the learned Rent Controller had passed tentative rent order directing the appellant to deposit rent at the rate of Rs,150 per month. The contention of the learned counsel for the appellant is that originally the rent was Rs,150 per month which was mutually reduced to Rs,100 per month and thus the tentative rent order is illegal. This contention is devoid of any substance in view of the law laid down by the Hon'ble Supreme Court in the above case. It is advantageous to reproduce relevant para containing observation which reads as under:- "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 noncompliance 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 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 Rehman, 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 realizing 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 curtain 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 fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell page 285. 11th Edition)."
10. ' The appellant after having committed default and after having been told, did not submit any plausible justification for the commission of the above default. In my view, it is for a tenant to come forward to the Court immediately upon the commission of default for a reason beyond his control.
11. The appellant did not make any such attempt. Even if the respondent would not have filed the above application, it was for the appellant to have filed an application for the condo nation of the delay on his part for a reason beyond his control. The dictum in the above case on all fours is applicable in the instant case.
12. ' The contention of Mr. Iqbal Raad, learned counsel for the appellant, that the learned Rent Controller was under obligation to determine finally the amount payable by the appellant. In this regard, he has invited my attention to the deposition of the respondent, the written statement, that the amount of rent was reduced from Rs,150 to Rs,100. This might have been a relevant consideration for deciding the question of default prior to the above decision of the Hon'ble Supreme Court referred hereinabove in which the Hon'ble Supreme Court laid down that for the purpose of passing an order under section 16(2) of the Ordinance, a Rent Controller is not required to determine quantum or rate of rent finally, if the same is in dispute, but is required to determine such amount approximately and consequence of non-compliance of order under section 16(2) entails summary disposal of the case without taking any further proceedings ipso facto on the basis of such non-compliance by striking off defence and passing order of eviction. In view of the above dictum, it is not open to me or even it was not open to the learned Rent Controller to go into question whether factually the appellant was entitled to adjustment of any amount at the time of passing of the tentative rent order.
13. ' For the aforesaid reasons, the appeal of appellant is dismissed and he is directed to vacate the premises within a period of six months from the date of this judgment provided he continues to deposit the rent in terms of the tentative rent order. Furthermore, in case the appellant fails to hand over the vacant possession of the premises in question on the expiry of the above period of six months, the learned Rent Controller shall issue a writ of ejectment without further notice to the appellant.