1. ' This First Rent Appeal is directed against the order dated 18-12-1990 passed by the learned Vth Senior Civil Judge and Controller, Karachi East, in Rent Case No,874/1987, whereby an application for review of the tentative rent order dated 9-7-1990 was dismissed and the corresponding application of the respondent-landlady, under section 16(2) of the Sindh Rented Premises Ordinance, 1979, was allowed, resulting in the defence of the appellant-tenant being struck off.
2. ' The impugned order has been assailed on the ground that the tentative rent order was bad since the learned Controller, allegedly, required deposit of time-barred arrears of rent attracting contravention of the rule laid down by the Supreme Court in Ashfaq-ur-Rehman v. Muhammad Afzal PLD 1968 SC 230. Such is also claimed to be bad because on the date the learned Controller determined the tentative arrears of rent, directing deposit of the same and of the accruing dues, the Rent Case was not even fixed for the consideration of the relevant application under section 16(1) of the Sindh Rented Premises Ordinance, 1979.
3. ' As far as the challenge regarding time-barred arrears is concerned, it has been urged that the landlady in her application for deposit of such arrears had claimed the dues as from 1-11-1979 and upto 27-5-1990, the eviction case itself having been lodged on 1-11-1987. However, at the same time, the landlady- had also pleaded that the appellant-tenant had been depositing rent in Misc. Rent Case No, 1436/1979 and a total amount of Rs,18,580 was lying deposited therein. Such amount was allowed to be adjusted and arrears in the sum of Rs,13,040 for past dues and Rs,12,600 for February, 1987 to July, 1990 were directed to be deposited. There can, obviously, be no plausible objection with regard to the last mentioned figure, since bulk of this amount pertained to the pendente lite accruing dues and a fraction covered the period immediately preceding the filing of the rent case.
4. As to the first amount such pertained to a period prior to February, 1987, and covered a little more than 43 months at the rate of Rs,300 per month. Substantial part of this amount, therefore, was beyond a period of 3 years prior to the filing of the eviction matter which, as seen, was initiated on 1-11-1987. Accordingly, as regards this amount the tentative order contravened the rule laid down in the Supreme Court case, above-cited. Mr. Rehmat Ellahi, appearing for the respondent-landlady, however, relied on a recent Supreme Court decision in Pervez Akhtar and another v. The Additional District Judge, Rawalpindi and four others 1990 PSC 1109. This case is of no help to the landlady because it does not constitute any warrant for deposit of time-barred arrears, principle laying down that even though the Controller lacks jurisdiction to direct deposit of arrears of rent beyond the scope of limitation, the prohibition does not come in the way of an order of eviction, which can be based on default extending beyond the arrears, realisable within limitation. Accordingly, the order for deposit of arrears not standing up to the test laid down in re: Ashfaqur Rehman ibid is liable to be set aside. On the assertion that part of the order being valid, compliance could be restricted to it, suffice it to say that the Court machinery insists on full compliance and does not go along partial deposits except, perhaps, in behalf of accruing rents, a question about which it is said that due deposits are continuing to be made in the Miscellaneous Rent Case.
5. ' The other ground of attack on the order requiring tentative deposit of rent has still greater force.
6. Mr. Amjad Hussain, Advocate for the appellant, has taken me through the case diary. The relevant application for deposit under section 16(1) of the Sindh Rented Premises Ordinance was filed while the appellant-tenant was alive. However, in the meantime, the appellant expired and an application for impleading his legal representatives in substitution was filed, which remained pending for quite sometime. Such application was allowed on 1-3-1990, the case being adjourned to 22-3-1990 and 15-4-1990 for further proceedings. On 15-4-1990, it was adjourned to 23-4-1990 for submission of the amended written statement. On 23-4-1990, amended written statement being filed and a copy supplied to the other side, the matter was adjourned to 12-5-1990, without specifying any purpose. On that date it was put up while the Presiding Officer was on leave and was adjourned to 9-7-1990 for the same purpose, meaning thereby no specific purpose, since on 23-4-1990 it was adjourned without revealing any purpose. On 9-7-1990, when the case was taken up, the appellant-tenant and his counsel were found absent and the application under section 16(1) of the Sindh Rented Premises Ordinance was heard and order announced thereupon. The case itself was adjourned to 8-8-1990, again without disclosing any purpose. However, on 29-7- 1990 i.e, before the time of two months fixed for deposit of arrears, the appellant-tenant (through legal representatives) applied for review. As seen, through order dated 18-12-1990 the Review application was dismissed and the application under section 16(2) of the Sindh Rented Premises Ordinance, for striking off the defence of the appellant-tenant was allowed. In the foregoing circumstances, it is obvious that the application under section 16(1) of the Sindh Rented Premises Ordinance was taken up on a date on which it was not fixed and order was passed thereon in the absence of and without hearing the appellant or counsel. Beyond doubt an order under Section 16(1) of the Sindh Rented Premises Ordinance, requiring deposit of arrears of rent, such as they may be, and accruing dues is a serious order. Its consequences can result in striking off the tenant's defence. An order of this character or magnitude and indeed any crucial order in a judicial or quasi-judicial proceeding, which may tend to prejudice a party, should be passed with great circumspection. The object of maintaining a diary in a legal proceeding is not without meaning and quite obvious. It puts the parties on proper notice of what is expected of them on the ensuing date in the case. Resultantly, the principle of audi alteram partem and its due adherence are properly and duly safeguarded. It is, inter alia, for this reason that a Court of law or a judicial or quasi-judicial forum can essentially take up only such matters on a date fixed before it as are specifically laid or meant to be laid for its consideration. Not just this, if any other matter be addressed that can be done only by consent or if such causes no surprise, prejudice or other unwarranted inconvenience to a party in the proceeding. No violation of this rule unless the deviation does not negate the concepts of justice and fairplay is permissible. Similarly embedded is the dicta envisaging that a suit, petition or appeal cannot be dismissed for non-prosecution if the matter is merely fixed for hearing of an application or a miscellaneous proceeding or vice versa or notice upon transfer, unless waived, is a prerequisite for further proceedings etc. Since the learned Controller overlooked this vital aspect of the matter there can be little argument that the rule was transgressed without justification. The order requiring tentative deposit, therefore, was bad and any subsequent order founded thereupon, such as the one impugned in these proceedings striking off the tenant's defence, is equally bad. Both require to be set aside. The principle is that a superstructure of rights or of orders giving rise to such rights, if based on void transactions, proceedings or determinations is equally bad. Since no appeal lay against the initial order of deposit, the same can be reached when in due course, the question re-opens on appeal directed against its non-compliance and concomitant striking off the tenant's defence. This precisely is the position here.
7. ' Now, it may not be a total digression to point out that on occasions, it has been observed that orders under Section 16(1) of the Sindh Rented Premises Ordinance 1979, tentatively fixing arrears and directing deposit thereof together with accruing dues, are passed, more or less, in similar circumstances without the rent case being expressly posted for consideration of the application under Section 16(1) and, correspondingly, even in the absence of the tenant and his counsel.
8. Hopefully, these are bona fide indiscretions. Still, the net result is the same: a vital order is passed without prior notice, in absence and inviting extremely serious and unsettling consequences.
9. Controllers, exercising rent jurisdiction have, therefore, to be cautioned that such a course of action is not supportable on any principle of law or justice and efforts must be made to eschew any tendency towards hasty or otherwise inordinate determination of such-like matters. If not, justice would be the first casualty in such an exercise. Justice should not only be done but should manifestly appear to have been done is not merely a maxim to adorn the law books or a pious sentiment only worthy of quote, it is a live concept capable of being judicially noticed and enforced.
10. ' Lastly, it will not be out of place to make mention of a residuary argument from the side of the respondent-landlady. Mr. Rehmat Ellahi, referring to Muhammad Hassan Ashraf v. Azizur Rehman (1984 M LD 241 the decision however, appears at page 242), maintains that in such case of an order passed in the absence of the tenant the maximum that this Court, on the principle spelled out in the cited case, can do is to permit extension of time in the payment of rental dues and deposit of accruing rents, as was done by my learned brother Nasir Aslam Zahid, J., in the case under report.
11. The argument is unacceptable for the simple reason that the decided case was one of mere absence and not of absence, as compounded by an adjudication on a date when such adjudication could not lawfully be made.
12. ' Accordingly, this appeal succeeds and the matter shall go back for decision on the application under Section 16(1) of the Ordinance upon duly- and adequately .Hearing the parties. These were the reasons for the short order dictated in Court on 2-05-1991, when this appeal, subject to recording of reasons, was allowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.