' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 20-3- 1989 passed by a learned Single Judge of the High Court of Sindh in F.R.A. No,500 of 1988 filed by the respondent/tenant, allowing the same and setting aside the order of striking off the respondent's defence under Section 16(2) of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, for non-compliance of the tentative rent order dated 14-11-1987 passed by the learned Vth Senior Civil Judge and Rent Controller, Karachi (South), in Rent Case No,846 of 1987.
Leave to appeal was granted to settle the question, as to what is the scope of the summary enquiry required under Section 16 of the Ordinance for determining the rent tentatively for purpose of deposit under the said provision.
2. The facts to be noted are that the appellant filed the aforesaid rent case on 26-5-1987 for ejectment on the ground of default for the period commencing from 2-9-1985 till the filing of the above case. He also filed an application under Section 16(1) of the Ordinance for directing the respondent to deposit monthly rent at the rate of Rs, 2,000 per month in Court since 1985.And also to continue to deposit the same during the pendency of the proceedings. To the above application, the respondent filed abjections dated 11-11-1987 averring therein that the rent of each of the two shops was Rs, 500 per month and thus for both shops was Rs,1,000 per month. It was also averred that the respondent had paid the rent to the appellant upto June, 1987, but the appellant did not pass any receipt and that the rent for the month of July, 1987, was remitted through Money Order which was refused by the appellant and, thereafter, the same was being deposited in the Court.
After hearing the learned counsel for the parties, the learned Rent Controller passed the following tentative rent order dated 14-11-1987:-- "Parties' counsel present. Relationship of landlord and tenant admitted. However there is dispute with regard to rate of rent. According to applicant it is Rs,1,000 p.m. For each shop and opponent's contention is that rent is Rs,500 p.m. For each shop. Assertions of both parties on the point of rate of rent at present are oral, hence at this stage tentatively I take the rent at Rs,1,000 p.m. For each shop and direct the opponent-tenant to deposit arrears of rent from June 1985 to October 1987 of 29 months amounting to Rs,58,000 in four months from the date of this order and further direct opponent to deposit future monthly rent from November 1987 at Rs, 1,000 p.m. For each shop on or before 10th of each calendar month. Applicant will not be allowed to withdraw rent more than at Rs,500 for each shop till final disposal of case."
3. Since the respondent had not deposited the arrears of rent, the appellant filed an application under section 16 of the Ordinance for striking off the respondent's defence. To the above application, the respondent filed his objections dated 9-4-1988 in which inter alia it was averred that no enquiry about the arrears of rent had been conducted before the passing of the aforesaid tentative rent order on 14-11-1987 and, therefore, the same was in contravention of the provisions of the law. It was further averred that the appellant had not produced any documentary evidence to show that the respondent was in arrears of rent and as to the rate of rent, and hence the order was not in accordance with law. It was prayed that the above tentative rent order dated 14-11-1987 be reviewed and a proper order be passed. However, the learned Rent Controller, after hearing the learned counsel for the parties, by her order dated 23-4-1988 allowed the appellant's above application and ordered the striking off the respondent's defence. Thereupon, the respondent filed aforesaid F.RA. Which was allowed by a learned Single Judge in chambers on the ground that the learned Rent Controller failed to conduct a summary enquiry and that the tentative rent order should have been passed after examining the witnesses of the parties who by then had filed affidavits in evidence in the main case. Against the above order, the appellant filed a petition for leave which was granted to consider the above question.
4. In support of the above appeal, Raja Hag Nawaz Khan, learned A.S.C. Appearing for the appellant, has contended that the reasons found favour with the learned Single Judge of the High Court in chambers are not sustainable in law as the Rent Controller was not required by law to hold a full- fledged enquiry as to the rate of rent or the period of arrears of rent before passing a tentative rent order. He has further urged that the tentative rent order passed by the Rent Controller in the present case was in accordance with law.
' On the other hand, Sardar Mohammad Ishaq, learned A.S.C. Appearing for the respondent, has urged that Since there was a dispute as to the rate of rent as well as to the period of arrears of rent and as the appellant had not produced any documentary evidence to substantiate his claim made in his application under section 16(1) of the Ordinance for directing the respondent to deposit the arrears of rent, the learned Rent Controller should have passed the tentative rent order after holding a summary enquiry which was not done in the present case and that the tentative rent order was unjust, arbitrary and violative of subsection (1) of section 16 of the Ordinance.
5. A perusal of the above-quoted tentative rent order indicates that while passing the above order, the learned Rent Controller has taken into consideration the versions of both the parties and ordered the deposit of the arrears at Rs, 1,000 for each shop for the period claimed by the appellant with the proviso that the appellant would not be allowed to draw rent by more than Rs,500 for each shop till the final disposal of the case. It cannot, therefore, be argued that the Rent Controller had not taken into consideration the respondent's plea as to the rate of rent. The above order is purported to protect the interest of the respondent by disallowing the appellant to withdraw the rent at the rate of Rs,1,000 per month. It may also be noted that for depositing the arrears of rent, the learned Rent Controller allowed four months time keeping in view the quantum of the arrears.
We are, therefore, inclined to hold that it cannot be urged that merely the fact that the Rent Controller had not accepted the rate of rent or the period of the arrears as pleaded by the respondent, would not render the above tentative rent order as an improper or an arbitrary order.
6. This leads to the question as to the scope of the summary enquiry under section 16(1) of the Ordinance which is a parallel provision to subsection (6) of section 13 of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, with the modification that the word "approximately" has been omitted from the former provision, but the above omission or change in the phraseology of the above two parallel provisions of the two Ordinances, has not affected the scope of enquiry as pointed out by this Court in the case of Mrs.Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190, wherein the following observations were made by Muhammad Afzal Zullah, J. (as his Lordship then was):-- "It is true that some unnecessary change has been made in the use of words in section 16 of the Sindh Rented Premises Ordinance, 1979, vis-a-vis section 13(6) of the repealed Sindh Rent Restriction Ordinance, 1959, but for the present discussion no practical difference has been made in the re-enacted law. The determination of the rent under section 16 also has to be tentative and approximate. Firstly, it is for a temporary purpose of the Controller regulating rent payment during the proceedings only. It has no effect on the prior period or the period after the rent proceedings including the appeal stages. Secondly, its determination is in a summary manner. Thirdly, if the Controller embarks upon the full trial of the issue regarding rate/arrears of rent without which final determination would not be fair or even possible, it would frustrate one of the purposes of the provision of the law itself, viz. The speedy disposal of the cases. In that event a considerable time would be consumed on this issue without in the meanwhile the Controller having any power to regulate the payment of rent by the tenant. And lastly, the final determination of the rent has been made possible by subsection (3) of section 16. It is not correct to say that this provision deals only with the disposal of the deposits of rent. Its extended meanings are not only possible but also beneficial to the parties. There are no barring words indicating that the Controller will not be able to determine the due rent finally, after the stage of the tentative determination. The use of the words like: 'determine' and 'due' in the above light do not lead to the conclusion that it is in the context of finality necessarily and not "tentativeness". The omission in this behalf can legitimately be supplied as the intention is very clear and the omission seems to be inadvertent. First question is answered accordingly."
7. At this juncture, it may be pertinent to refer to another judgment of this Court in the case of Mrs. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1, in which one of us (Zaffar Hussain Mirza, J.) has dilated upon the scope of enquiry under section 13(6) of the late Ordinance 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 consequences of non-compliance 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."
' Reference may also be made to a recent order of this Court refusing to grant leave to appeal against the judgment of Lahore High Court in the case of Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201, in which Muhammad Afzal Zullah, C.J. Has made the following observation as to the scope of enquiry under section 13(6) of the late Ordinance:-- " The learned Rent Controller, it appears, held summary inquiry regarding this assertion from the landlord's side during which both the parties were heard. In that inquiry the petitioner had failed to satisfy the learned Rent Controller with regard to timely payment of rent by him for the entire, period. In these circumstances at this stage only a tentative rent order; and that too on the basis of approximation, had to be passed. Therefore, it is one of those orders which, keeping in view the stage at which it was passed and the period for which it was passed, could not be treated either against law or any principle. It has often been held that detailed, in depth, inquiry cannot be held at that stage, nor issues may be framed. The nature of the inquiry is not of a trial before trial. The mere fact that subsequently during the trial of the issue relating to default, it was not found to be so actionable as to incur liability for eviction, or for that matter the fact that during the trial the issue of default is found in favour of the tenant, would not render the tentative order of deposit of approximate rent either invalid or improper."
8. We are, therefore, of the view that the learned Single Judge in chambers was not justified in holding that the Rent Controller was to hold a full-fledged enquiry by examining the witnesses who have filed affidavits in evidence in the main case. The tentative rent order was in consonance with the provision of section 16(2) of the Ordinance. We would, therefore, allow the above appeal and set aside the order of the High Court and would restore the order of the learned Rent Controller.
9. Before parting with the above discussion, we may observe that before allowing the appellant to withdraw the rent already deposited by the respondent, the learned Rent Controller would deal with the matter in terms of subsections (1) and (3) of section 16 of the Ordinance, as to the rate of rent and as to the period.
' The appeal stands disposed of in the above terms with no order as to costs.