' This appeal under section 21(2) of the Sind Rented Premises Ordinance, 1979, is from the order, dated 9-3-1981, passed by VII Controller, Karachi, whereby he dismissed the application under section 13(2) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called 1959 Ordinance) filed by the appellant/landlord against the respondent/tenant in the following circumstances.
2. The respondent is admittedly a tenant of the appellant in respect of Second Floor Flat of the building situated on plot of land bearing No, 784/C-Block-II, P.E.C.H. Society, Karachi, on a monthly rent of Rs,310 plus Rs,12 water charges, excluding electricity and gas charges.
3. The appellant filed the application under section 13(2) of the 1959 Ordinance on the ground of default in payment of rent for the tenancy months commencing from 25th January, 1975 to 24th June, 1975 amounting to Rs,1,610.
4. The defence of the respondent/tenant was that he had made the following payments on behalf of the appellant.
"(a)New water pumping motor installed in the buildingRs.1,040.00 (b)Fitting charges of Motor Rs.283.00 (c)Taxes of Excise & Taxation Department Rs.3,25.00 (d)Repairs of Fans Rs. 66.00 TOTAL Rs. 1,714.00
5. The appellant filed his own affidavit in support of his case and he was cross-examined. In the cross-examination he admitted that a new water pumping motor was installed in the building towards the end of 1974. He however, stated that he rejected the claim of the respondent for deduction of repair charges from the rent of 3 months but the other tenants in the building did not make any such claim. The reason for the same is obvious and it is that the respondent had spent that money and the other tenants had not. His case in cross-examination however, was that the respondent had spent the honey without his permission. He however, admitted that the respondent spent the amount of about Rs, 1,700 and that a sum of Rs, 325 was paid to the Excise and Taxation Department at his request.
6. On the other hand, the respondent filed his own affidavit and affidavit of one Bahram Khan who was doing the sanitary work and who had installed the water pumping motor. In the affidavit the case of the respondent was that he had made payments on behalf of the appellant. In the cross- examination he stated that he had taken oral permission from the appellant for spending Rs, 1,714 as detailed above. He however, admitted that the permission given to him was oral.
7. The learned Controller after considering the evidence produced by the parties came to the conclusion that the respondent was entitled to adjustment of Rs, 1,648 towards the arrears of rent, Rs, 1,040 being the price for water pumping motor, Rs, 280 being installation charges and Rs, 325 paid by the respondent to the Excise and Taxation Department and that there was no default committed by the respondent in payment of rent to the appellant. Accordingly, he dismissed the application giving rise to this appeal.
8. I have heard Mr. Abdul Rashid Mirza, learned counsel for the appellant and Mr. K.B. Bhutto learned counsel for the respondent.
9. Mr. Abdul Rashid Mirza learned counsel for the appellant submits that the respondent was not entitled to adjustment of water pumping motor and installation charges as under section 12 of 1959 Ordinance he should have first obtained the permission of the Controller which was not taken in this case. He further submits that, if the respondent had any grievance against the appellant for not supplying water he should have moved the Controller under section 10 of the 1959 Ordinance.
However, it is admitted position that the appellant charged Rs,12 P.M. As water charges from the respondent and the same amount from each of the other tenants. In answer to a querry made by me it is stated at the Bar by Mr. Abdul Rashid Mirza that the water pumping motor was burnt out.
10. There is no doubt that under section 12 of the 1959 Ordinance, if the landlord had failed to make necessary repairs the respondent or other tenants should have sought permission of the Controller to carry out repairs to the burnt out water pumping motor or for replacing the same. The respondent did so without the permission of the Controller. However, the respondent in his evidence stated that he did it on the instructions of the appellant. This may be true as the appellant was under obligation to provide water and he might have asked the respondent to install the motor but the course followed by him was not according to law then prevailing. Thus I am of the view that the respondent was not entitled to adjustment of cost of the water pumping motor and its installation charges from the rent and thus he was in default in payment of rent. However, in the circumstances of the case it cannot be said that the default was wilful and I would, therefore, set aside the order of the Controller to the extent of allowing adjustment of Rs, 1,040 plus Rs, 283 but at the same time I would not grant the prayer of the appellant for eviction of the respondent from the premises in the exercise of discretion which vest in the Controller and in this Court under the law. It is stated at the Bar by Mr. K.B. Bhutto that the respondent had deposited all the arrears of rent except the amount of Rs, 325 paid to the Excise and Taxation Department with the permission of the appellant which was allowed to be adjusted. The appellant shall be entitled to withdraw this amount from the Court.
11. It is however, submitted by Mr. Mirza Abdul Rashid that the respondent had not paid the rent even after the filing of the rent application till the order under section 13(6) of 1959 Ordinance was passed. But it is admitted that the respondent did deposit the arrears of rent as ordered by the Controller. Therefore, it cannot be said that he had committed any default subsequent to the filing of the rent application. Mr. Mirza Abdul Rashid referred to the case of Syed Azhar Imam Rizvi v. Mst.
Salma Khatoon 1985 SCMR 24, particularly the following observations made in the case.
"The mere fact that the application for his ejectment was pending or that an order under section 13(6) had not yet been passed would not absolve him of his duty under the Rent Restriction Law to pay/offer the rent to the landlady each month in time. The argument that he was permitted by law to withhold payment of rent till an order is passed under section 13(6) by the Rent Controller is neither supported by statute nor any principle. It is also not correct that after the admission by the petitioner that he had received a copy of the ejectment application in 1978 wherein the factum of sale in favour of the respondent had clearly been mentioned, he was entitled to any other formal notice under section 13-A."
12. In regard to the above observations it may he stated that they may be understood in the context of that case k in that case the facts as stated, were that the petitioner was a tenant of the premises in dispute since 1974. The premises was originally owned by one Ansar Ahmad and Didar Ahmad to whom the petitioner was paying rent. It was purchased by the respondent landlady in 1978 through a registered deed. She alleged default in payment of rent from July, 1978, to November, 1978 and accordingly moved an application for petitioner's ejectment in November, 1978. The petitioner had made attempts to pay the rent to the previous owners for the months of September and October but they declined to accept the same. In his written statement the petitioner pleaded lack of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 and also lack of relationship of landlord and tenant. The learned Rent Controller however, in his order, dated 21st of October, 1979, found that no notice under section 13-A was served on the petitioner. The issue relating to the relationship of landlord and tenant however was found in favour of the respondent landlady. The learned Rent Controller fixed the next date within few days in order to pass an order for deposit of the arrears of rent and for further proceedings in respect of the other grounds for eviction. But in the meanwhile the respondent landlady filed an appeal against the finding regarding non-service of notice. And thus no order under section 13(6) was passed. The question came up before the High Court ultimately in second appeal and an order was passed in October, 1980 by the High Court for the deposit of arrears of rent which according to the learned counsel was complied with. But in the meanwhile on 3-12-1980, the respondent filed another application on the ground of default from July, 1978, up to December, 1980. According to the learned counsel a plea was taken against this application that no notice under section 13-A having been served the second application could not proceed. Notwithstanding the same the learned Controller by his order, dated 31-5-1982, allowed this second application for petitioner's eviction on the ground of default in payment of rent. An appeal filed from this order in the High Court having failed leave to appeal was sought. It was in this background the above- quoted observations were made. Therefore, the case cited by Mr. Mirza Abdul Rashid learned counsel for the appellant is distinguishable on facts.
13. The appeal is partly allowed as stated herein before and the parties in the circumstances of this case are left to bear their own costs.