1. ' This case was partly heard by me yesterday and today it is fixed for further arguments. I have heard learned counsel for the appellant at length but Mr. Zahir Hussain Chishty, Advocate who was present yesterday is not present today.
2. ' This appeal is directed against the order of Rent Controller, dated 19-1-1983 whereby he struck off the defence of the opponent under section 16(2) of the Sind Rented Premises Ordinance, 1979, and directed him to hand over the vacant possession of the premises within one month of the order.
3. Following facts in brief may be stated here: ' The rent application was instituted by the respondent No,1 against Pakistan International Airlines Corporation respondent Noi. 2 in this appeal on the sole allegation of default in payment of rent. On 4-8-1980 the Rent Controller passed the tentative rent order directing respondent No,2 to deposit a sum of Rs,54,600 in Court towards arrears of rent and also directed them to deposit future monthly rent in Court until disposal of the case. At the time of passing of the rent order the Rent Controller noticed that certain amounts were deposited in a miscellaneous rent case by the present appellant which were allowed to be adjusted and treated as deposit of rent in the rent case instituted by the respondent. It is an admitted position that the present appellant has been depositing monthly rent in Court in compliance with the order of the Rent Controller and there has been no default in so far the compliance of the order, dated 8-4-1980 is concerned. The respondent moved an application under section 16(2) of the Sind Rented Premises Ordinance, 1979, for striking off the defence of respondent No,2 on the allegation that the rent as directed by the Controller has not been deposited. The Rent Controller took the view that as the deposit of the rent has been made by the present appellant it could not be treated as deposit by respondent No,2 and accordingly struck off his defence in the case. The present appellant has challenged the order of the Rent Controller striking off the defence of respondent No,2 and it is contended by the learned counsel for the appellant that since there was no default in the compliance of the order of Rent Controller the defence of respondent No,2 could not be struck off in the case. It is' further contended that the Rent Controller while passing the tentative rent order itself considered the monthly rent deposited by the appellant in a miscellaneous rent case as rent deposited in the above rent case and as such the subsequent deposit made by him could not be ignored. It is also Contended on behalf of appellant that even from the averment made in the rent application it is clear that although the premises were let to respondent No,2 by respondent No,1 but the same was occupied by the appellant. The appellant also relied on the rent agreement between the parties to contend that subletting was permissible by respondent No,2. The learned counsel for the respondent only contended that as the rent was not deposited by respondent No,2 the deposit made by appellant could not be .Considered as a valid deposit of rent since the appellant was not a party, to the proceedings. It is true that appellant was not made party to the proceedings and his application under Order 1, rule 10, C.P.C. Was rejected by the Controller but in view of the fact that the rent deposited by appellant in miscellaneous rent case was allowed to be adjusted as rent in the above rent case instituted b respondent, be could show that there was no default in compliance with the direction of Rent Controller for deposit of rent and for that limited purpose could also maintain the appeal in view of the decision in the case of Ghulam Hyder v. Muhammad Hanif PLD 1979 Kar.
167. It is, however,. Clarified that by reason of deposit of rent in Court, the appellant could neither- acquire the status of a tenant in respect of the premises if he did not possess the same nor the appellant's case could be prejudiced in any manner with regard to the merits of hi allegations in the case. With these observations I accept the appeal and set aside the order of the Rent Controller. The case is sent back to the Rent Controller for disposal according to law. There will be no order as to costs.
4. Appeal accepted.
5. 986 MLD 1337 [Karachi] Before Muhammad Zahoorul Haq and Nasir Aslam Zahid, JJ Haji ABDUL LATIF--Petitioner versus ISLAMIC REPUBLIC OF PAKISTAN and 2 others--Respondents Constitutional Petition No,D-607 of 1979, decided on 30th January, 1986. Constitution of Pakistan (1973)- ---Art.199--Customs Act (IV of 1969), Ss.16, 32 & 156(9)--Imports and Exports (Control) Act (XXXIX of 1950), S.3--Import of goods--Liability to pay customs duty--Chemical Examiner's test report showing disputed imported goods different from goods stated to have been imported--Test report having not been disputed by importer, order of Customs Authorities based on such unchallenged report for charging heavy customs duty and confiscation of goods, held, was justified and even production of certificate of manufacturer or such imported goods would not destroy effect of test reports--Petitioner's failure to show relevant import tariff which could prove that import duty charged from petitioner was unjustifiable, would render petition without force in circumstances. [p.
6. 1339] A A.F.M. Mokarim for Petitioner. Syed Inayat Ali for Respondents. Date of hearing: 30th January, 1986.
7. ' MUHAMMAD ZAHOORUL HAQ, J.--The petition has called into question, the orders of Customs Authorities whereby the goods imported by the petitioner on 23-2-1977 were declared to be covered by item 15.13 of PCT. The petitioner had imported Hydrogenated fish oil from Japan, and had claimed that it was covered by item 15.12. The Customs Authorities got the sample tested and the following was the report: "The sample described as Hydrogenated fish oil ADK Brand m/p 38/40 C on chemical test is found to consist partially Hydrogenated (Hardened) refined fish oil containing added colour and flavour.
8. It is in the form pale yellow semi-solid pasty."
9. ' The Deputy Collector of Customs by his order, dated 27-9-1977 held that it was found that the goods were found to be partially refined fish oil containing added colour and flavour in the form of pale yellow semi-solid pasty mass and, therefore, it was correctly Classifiable under 15.13 PTC and was charieable to duty and sale tax @ 271$15 and 10$2s respectively, asriagain4 '15.12. PTC as claimed by the petitioner. In consequence thereof, it was found that the petitioner had contravened the provisions of section 32 of Customs Act, 1969 and was punishable under section 156(9) of Customs Act and 3(1) read with section 3(3) of Import Export Control Act, 1950 and, therefore, confiscated 30$ of the goods but gave option to the petitioner to redeem the same on payment of penalty of Rs,50,000. The goods were also confiscated for import trade control contravention under section 16 of the Customs Act but again option was given to the petitioner to redeem the same on payment of fine of Rs,10,000. The Collector of Customs, however, on appeal remitted the penalty reducing the fine to Rs,50,000. The Central Board of Revenue found that the classification made by the lower authority was correct but gave benefit of doubt to the petitioner and waived redemption fine.
10. ' The present position, therefore, is that the goods are lying with the Customs and the only point at issue is, whether the goods should be charged the duty under PTC 15.12 or under 15.13. It may be relevant to note that on the application of the petitioner samples of goods were again sent to Laboratory but the previous report was confirmed. We will reproduce the item 15.12 and 15.13 of P.C.T.
11. The relevant portion of items 15.12 and 15.13 reads as under: "15.12. Animal or vegetable oils and fats, wholly or partly hydrogenated, or solidified or hardened by any other process, whether or not refined, but not further prepared.
12. ' A. Animal oils and fats.
13. ' 01 Fish and whale oil.
14. ' 02 other.
15. B.Vegetable oils and fats ' 15.13 Margarine imitation lard and other prepared edible fats. A. Margarine.
16. B. Other."
17. ' Mr. A.F.M. Mokarim, has argued that once the test had shown that it was refined fish oil then thereafter, there was no justification to change the classification from 15.12 to 15.13. However, the difficulty in the way of the petitioner is that if the fish oil is put in further preparation then it goes out of classification of 15.12,--according to the last exception provided in 15.12. There is no dispute in respect of its report. The contention of the petitioner that he was not shown the test report has been confronted by counter-affidavit filed by Mr. Mushtaq who was an officer dealing with the case, who has stated that the chemical examiner's report was shown to the petitioner and the entire discussion took place on the basis of test report. It is also claimed I para. 5 of the same counter-affidavit that at the insistence of the petitioner second test was procured from Laboratory but it is to the semi-effect.
18. ' We therefore, found that the order passed by the Custom-Authority was justified by the test reports which are on record, with us.
19. ' Mr. A .F.Mokarim's contention was that the petitioner had produce a certificate, dated 25-10-1977 from the Manufacturer that the item wa without additives of flavour and colour. However, this certificate canno destroy the effect of the two test reports that are before us. The test reports have been not challenged at all in the petition filed before us ' It is, therefore, apparent to us that fish oil imported by the petitioner had undertone a further preparation after refining inasmuch as flavour and colour was added to the same, and therefore, it was excepted from the item 15.12 of the PCT and was rightly covere under 15.13(B) of PCT.
20. ' The petitioner's counsel had also challenged that even under 15.13 more duty had been charged from the petitioner. The learned counsel has not placed before us any relevant import Tariff for the year 1976-77 from which we could come to the conclusion that the petitioner is right. We do not find any justification for this submission because no such allegations have been made in the petition.
21. The petition is without merit and is hereby dismissed. Mr.Syed Inayat Ali has oppose the petition.