This appeal at the instance of tenant is directed against the order of the learned Vth Sr. Civil Judge and Rent Controller (South) Karachi passed under section 16(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) passed in Rent Case No.349/86 thereby striking off the defence of the appellant for non-compliance of tentative order for deposit of rent passed under section 17(1) of the Ordinance on 27-3-87.
2. The relevant facts are that the respondent M.R. Khan, the owner of Premises No.60-Z/2, Block 6, PECHS, Karachi, filed an application for eviction of the appellant on the ground of default in payment of arrears of rent for the period upto August, 1982 at the rate of Rs.800 amounting to Rs.
10,600 and from the month of Sept. 1982 upto Feb.1986 at the said rate. The respondent M.R. Khan died on 5-6-87 during the pendency of the application and, consequently, her legal heirs/respondents were brought on.
3. The appellant filed written statement stating, inter alia, that the rate of rent of the demised premises was Rs. 1,000 per. Month and that the tenancy stands in the name of Mohammad Anwar who is sole proprietor of Five Star Inc. And that Zain Shard, through. Whom this application had been filed, has had no concern with M/s. Five Sar Inc. The alleged default was denied. The appellant further claimed that the rent upto the month of June, 1985 had been duly paid. It was further averred in the written statement that a sum of Rs. 60,000 had been paid to the deceased- applicant which was adjustable towards future rent. It was an 28th October, 1986 that the deceased-applicant/landlord fled an application under section 16(1) of the Ordinance for passing a tentative order on payment of rent. The appellant fled objections to this application on 20-11-86, inter alia. Stating that there were no arrears outstanding against him. He further claimed that the rent upto June 1986 has been duly paid vide receipts (Annexures Al to A4) filed with the objections.
The rent w.e.f. July 1986 was claimed to have been deposited Misc. Rent Case No.1368/86.
Photocopies of the receipts issued by the Court were also enclosed with the objections. In Court, the appellant's case was that no rent was due and payable by him and, that the application under section 16(1) was liable to be rejected.
4. During the pendency of the application under section 16(1) the deceased-applicant made an application requesting for a direction to the appellant to file the original rent receipts allegedly issued by him. The Court accordingly directed the appellant to file the original receipts and pursuant thereto it was on 7-2-87 that the appellant filed the original receipts. The case of the deceased-applicant, it may be observed, was that the receipts in question were forged by the appellant. The learned Rent Controller, however, without ascertaining as to whether the receipts through which the rent was claimed to have been paid by the appellant to the deceased-landlord were genuine or not, passed an order under section 16(1) on 26-3-87, thereby directing the appellant to deposit arrears of rent at the rate of Rs.800 per month amounting to Rs. 49,800 as clamed by the deceased-applicant, within two months from the date of the order. She further directed that arrears deposited in Msc. Rent Case No.1368/86 be treated as arrears of rent in this case. The future monthly rent was also directed to be deposited at the rate of Rs.800 per month on or before 10th of each calendar month from the month of April, 1987, The appellant thereupon made an application under section 151 CPC on 24-5-87 for seeking amendment of the aforesaid tenative order on the ground that the direction for deposit of arrears of rent w.e.f. August 1982 uptill Sept. 1980 included the claim in respect of the time --barred period. Moreover, the payment of the rent upto Sept. 1986 at the rate of Rs. 1,000 per, month has been duly proved by the appellant by producing the rent receipts issued by the deceased applicant and hence it was inequitable and unjust to ask him to pay the amount of rent twice over. It was further prayed in this application that the order for deposit of rent w.e.f. August, 1982 uptill September 1986 may be stayed/suspended till the decision, of the application.
5. In the meanwhile, on 7th Dec. 1986 the respondent made an application under section 10(2) of the ordinance fir striking for the defence of the appellant on the ground of his having committed default in compliance with the tentative order of the Court dated 20-3-87. The appellant filed objections to the above application reiterating, inter alia, that the tentative order suffers from several legal infirmities as already pointed out through application under section 151 CPC and that the appellant was thus not under a legal obligation to comply with an illegal order and hence the application, according to the applicant, was liable to be dismissed.
6. The learned Rent Controller, however, by her impugned order dated 1-2-87 has, on the one hand, dismissed the appellant's application under section 151, C.P.C. And allowed the application under section 16(2) of the Ordinance presented on behalf of the respondent, thereby directing the appellant to vacate the premises within sixty days from the date of the order.
7. I have heard the learned counsel for the parties. Mr. Farooque H: Naek, learned counsel for the appellant, raised the following contentions.
(i)that the tentative order dated 26-3-86 was an illegal order inasmuch as the learned Rent Controller has thereby ordered the deposit of the rent for the period which had become time- barred and hence it was not obligatory on the part of the appellant to have complied with the said illegal order; (ii)that it has been held by the Supreme Court as well as by this Court that no order for payment of rent in respect of time barred period could be passed under section 16(1) of the Ordinance; (iii)that the arrears of rent have not been determined according to law in as much the arrears deposited trough Misc. Rent Case have been left over to the appellant; (iv)that the appellant has been asked to make payment of rent for certain period twice over without holding the receipts produced by him in support of- having paid the rent as bogus, as claimed by the respondent, In short, his contention was that the rent receipts were not at all taken into consideration while passing the tentative order for runt; that the application made by the respondent under section 151 GPC seeking review of the order was entertain-able in law and- the learned Rent Controller has rejected the same, for untenable grounds.
8. Mr. Zia Qureshi, learned counsel for the respondents on the other hand, supported the impugned order by contending that the payment of rent for the period beyond three years yeas made through cheques which were bounced when presented by the respondent for 'encashment.
Although he conceded that the learned Rent Controller should not have passed the order for deposit of arrears of rent for the time-barred period but in the instant case there was an acknowledgement of liability by the appellant and it resulted consequently in enlargement of time and hence there was no question of direction for payment of rent which had become time-barred.
9. I have given the consideration at the submissions made by the learned counsel for the parties and I am clearly of the opinion that the impugned order of the learned Rent Controller suffers from several legal infirmities and cannot, therefore, be sustained. There can be no denying the fact, as has rightly been conceded by the learned counsel for the respondent, that the tentative order for deposit of arrears of rent could not include the rent for the period which had become time barred at the time of filing of the ejectment application. The learned counsel for the appellant, I may add it here, invited my attention to certain authorities on the point without producing them before me.
These are PLD 1968 SC 230 and 1981 CLC 825, wherein, according to him, it has been held that if an illegal order is passed by the learned Rent Controller which includes a direction for payment of time barred rent the non-compliance thereof cannot result in the eviction of the tenants. The contention of the learned counsel for the appellant is so far as it concerns the Rent Controller's failure in not having specifically adjusted the amount of rent deposited in Court, also does not appear to be without substance. The learned Rent Controller has, on the face of it, it appears, ordered the deposit of rent for the period from July 1986 to Sept. 1987 twice over inasmuch as according to the appellant the rent was being deposited in Court from July 1986 and learned Rent Controller has not denied this fact he has rather allowed the adjustment of the rent and worked out the period of rent up to Sept. 1986, It may also be pointed out' that once an objection had been taken by the respondent about the genuineness of the rent receipts through which the rent for certain period was claimed to have been made by the appellant, the Rent Controller was under a legal obligation to have determined the genuineness or otherwise of the rent receipts, which in the instant case she has failed to do. Even if no final view could be expressed in that behalf, the learned Rent Controller should have taken into consideration the ex facie genuineness or otherwise of these receipts.
10. The appellant had admittedly drawn the attention of the learned Rent Controller to the effect that the she had passed an order for deposit of rent which included the rent for the time-barred period, hence it was within the competenc4 of the learned Rent Controller to have examined that aspect of the case and modified it if it involved a direction for payment of rent for a period which had become time-barred. Any order in excess of the jurisdiction of the Court can always been modified suo motu even by the Court itself and all the more when it is brought to its notice by a contesting party.
11. For the foregoing reasons the appeal is allowed, the impugned order is set aside and the case is remanded back to the learned Rent Controller for fresh orders on both the applications (1) the one made under section 16(2) of the I Ordinance by the respondent and (2) the other moved under section 151 CPC by the appellant, which had been disposed of vide impugned order, in the light of the observations made heretofore. The parties are, however, left to bear their own costs.