This rent appeal under section 21 of Sind Rented Premises Ordinance, 1979 is directed against the order dated 8-10-1984 passed by the learned Rent Controller, Hyderabad in Rent Application No,71/84 striking off the defence of the appellant to deposit the rent vide his order dated 15-5-1984.
Briefly stated the facts of the case are that the appellant is the tenant of the respondent in respect of Bungalow No,20, Unit No,VII Latifabad, Hyderabad on rent of Rs,2,700 per month. It is averred by the respondent in his application under section 15 of the Sind Rented Premises Ordinance, 1979 that the appellant is not regular in payment of monthly rent and a cheque dated 1-9-1982 for the months of August and September, 1982 got dishonoured. Besides the rent agreement dated 1-6- 1981 between the respondent and the appellant was not extended. In his letter dated 16-2-1982 the respondent required the appellant to hand over the room over the garrage to him It is also alleged that rent for the month of December, 1981 which should have been received by the 15th December, 1981 was not paid to the respondent by January, 1982. Similarly the rent for the month of January, 19E2 was despatched to respondent on 9-2-1982. Thus there was delay of 39 days of rent for December, 1981 and delay of 9 days for rent of January, 1982. There are other allegations as well such as the appellant damaging the bungalow, expiry of tenancy agreement, the appellant causing nuisance to the neighbours of the adjoining bungalows. Lastly, it is averred that the appellant has been in, arrears of rent since December, 1983 till date. It may be stated here that the said rent application was presented on 14-2-1984.
The appellant denied the allegations of the respondent in their written statement. After the filing of the written statement the respondent filed an application under section 16 of the Sind Rented Premises Ordinance, 1979 on which the learned Rent Controller on 15-5-1984 passed the following order:- "The opponent has stated in his objections that the monthly rent is being paid regularly, but no proof to that effect is on record. I therefore, believe the contents of the application and I am of opinion that the opponent has not paid the rent from December, 1983 till date. I, therefore, pass this tentative rent order and direct the opponent to deposit the rent in Court from December, 1983 to April, 1984 at the rate of Rs, 2,700 per month on or before 12th of August, 1984. The opponent is also directed to keep on depositing the future monthly rent at the same rate, on or before 7th of each succeeding calendar month. It will not be out of place to mention that this application for tentative rent order was filed on 14-2-1984 and it is decided today."
Subsequently, the respondent moved an application under section 16(2) for striking off the defence of the appellant who failed to comply with the orders of the Court for deposit of tentative rent. This application was contested by the appellant stating that the application did not bear the Nazir's report as to the deposit of rent and the said application is vague and does not disclose which part of the order of the learned Rent Controller has not been complied. with. Reference was made to the affidavit-in-evidence of the respondent in which he has admitted to have received rent from December, 1983 to March, 1984 which debars him to raise inconsistent plea. It was also pointed out that the appellants in his application under section 151, C.P.C. for review had given details of the payments for each month up to April, 1984 by cheques alongwith a certificate from the Bank.
Counsel for the parties placed before me on 1987 SCM R 1013, 1988 SCM R 970, 1983 CLC 1893, 1984 CLC 1893, PLD 1988 SC 190 and 1984 CLC 626 in Supreme Court of their case. At the outset, Mr. Hassan Mehmood Baig, learned counsel for appellant contended that the tentative order dated 15- 5-1984 is on the face of it ultra vires of section 16(1) of Sindh Rented Premises Ordinance, 1979, inasmuch as it purports to direct the appellant/tenant to deposit future rent on or before the 7th of each month rather than the 10th of each month. Secondly, the learned Controller completely closed his eyes to the material brought on record inasmuch as much before the tentative order was passed, the appellant had already made payment of the alleged arrears of rent.
Now with regard to the first contention raised by the learned counsel for the appellant, it is clear that section 16(1) of the Sindh Rented Premises Ordinance, 1979 contemplates two different and distinct orders one relating to arrears of rent in which the Controller may in his sole discretion direct the tenant to deposit them on or before a date to be fixed by him and the other relating to future rent where it is his bounden duty to direct the tenant to deposit future rent in consonance with the statutory period(s) i.e, on or before the 10th of each month. In the present case, admittedly the learned Rent Controller in violation of section 16(1) had directed the appellant to deposit the future rent on or before the 7th of each month which is clearly ultra vires of section 16(1) of the Sindh Urban Rent Restriction Ordinance and is liable to be set aside . The argument advanced by Mr. Abdul Hameed Khan, learned counsel for the respondent that in that case the appellant should have deposited the future rent on or before the 10th of each month has no force as section 16(1) necessarily requires a direction by the Controller to deposit rent payable in future within the statutory period and the law-makers in their wisdom have not left any discretion in this regard to be exercised by the Controller.
There is yet another ground on the basis of which the order as to deposit of future rent is liable to be set aside. The appellant moved four applications before the learned Controller seeking his permission to pay future rent by a cheques enclosed thereto. The first application is dated Nil and enclosed to it was a cheque dated 23-5-1984 amounting to Rs, 5,400 towards rent for months of May and June, 1984. The other applications are in respect of rent for ensuing months and almost similar as to their contents. It will be useful to reproduce certified copy of the first named application as under: "IN THE COURT OF IIND SENIOR CIVIL JUDGE AND RENT CONTROLLER HYDERABAD R.A. No,71/84 Mohammad Abbas v. Government of Pakistan Deposit of two months May and June, 1984, amounting to Rs,5,400 It is submitted that in compliance with this honourable Court's order dated 19-5-1984 rent for the months of May and June, 1984 is tendered herewith through cheque No, (A) 4977/A 497671 dated 23-5-1984 amounting to Rs, 5,400 as prescribed under rules.
It is submitted that T & T Department is under Federal Government of Pakistan, and such payments are always made through cheques hence it is prayed that the opponent may kindly be exempted from the condition of cash payment.
(Sd.)
Opponent, Divisional Engineer Telegraph, Hyderabad Division.
Nazir to deposit/comply (Sd.) 24-5-1984 Judge.". 'What, is significant from the perusal of these applications is that thelearned Controller had directed the Nazir to deposit the cheques submitted by the appellant towards the rent. Thus rent for the months of May and June, 1984 was deposited by cheque on 24-5-1984 and rent for the months of July, 1984, August, 1984 and September, 1984 was deposited by cheques dated 5-7-1984, 1-8-1984 and 1-9-1984 respectively although these cheques were cleared by the office of the Nazir much afterwards. It was argued by Mr. Hassan Mehmood Baig, learned counsel for appellant that once permission to make payment by cheque was granted to the appellant, the appellant is absolved of any responsibility as to collection of the amount within time as it was a matter between the Nazir of the Court and the Bank concerned. Mr. Abdul Hameed Khan, counsel for respondent, on the other hand, contended that it was the responsibility of the appellant to see that the cheques were being sent for collection within time but it was frankly conceded by him that the cheques were deposited by the appellant with the Nazir before the due date.
No doubt the order of the learned Controller directing the Nazir to accept cheques towards payment of rent is such as is likely to mislead the appellant besides it purports to modifying to the earlier direction to the appellant to deposit rent in cash. In view of the facts enumerated above, I am of clear view that the appellant cannot be held liable for late remittance of the amount if the cheque was sent late for collection by the Nazir of the Court or if late remittance was received from the Bank.
Now adverting to the tentative order dated 15-5-1984 as to deposit of arrears of rent, the appellant was directed to deposit them on or before the 12th August, 1984. On 31-5-1984, the appellant filed an application under. section 151, C.P.C. for review of order dated 15-5-1984 stating that on 15-5- 1984 when the tentative order was passed the appellantscounsel was under the impression that the case was fixed for determination of preliminary objection as to the maintainability of ejectment application raised by the appellant and therefore he could not produce any proof as to payment of the alleged arrears of rent. Alongwith the review application, the appellant had also filed a statement dated 26-5-1984 from M/s. National Bank of Pakistan Ltd. Resala Road Branch, Hyderabad stating as follows:-- "The cheques issued by the Divisional Engineer Telegraph, Hyderabad in favour of Mr. Mohammad Abbas Akbar have been cleared in clearing house on the dates given against the respective cheques detailed below: S. No.Cheque No, & dateAmountDate of Clearance
1. A.4781211-12- 83Rs,2,70011-12-1983
2. A.4781481-12- 84Rs,2,7008-1-1984
3. A.4781761-2-84Rs,2,70015-2-1984
4. A.4781981-3- 84Rs,2,7004-3-1984
5. A.4976321-4- 84Rs,2,7007-4-1984
6. A.4976512-5- 84Rs,2,70016-5-1984 This application was resisted by the respondent on the grounds that the learned Controller had no jurisdiction to review its order as C.P.C. is notapplicable to rent proceedings and that the review application was mala fide and did not disclose sufficient grounds for review.
The appellantssaid application under section 151, C.P.C. for review of tentative order dated 15-5- 1984 could not be decided till 12-8-1984 on which date the respondent moved his application under section 16(2), Sindh Rented Premises Ordinance, 1979 which reads as follows:-- "It is submitted and prayed that the defence of the opponent (be) struck off as the opponent has failed to comply with the order of this honourable Court for deposit of the tentative order."
The appellant in his objection reiterated the contentions raised by them in their application under section 151 for review and further contended that the application under section 16(2) moved by the respondent neither discloses which part of the order has not been complied with nor does it bear the Nazir's report as to alleged default/dates on which rent was deposited.
According to the learned Controller the appellant filed no objection to the respondent's application under section 16(2) which is not correct as objection to said application was filed by the appellant on 13-9-1984. However, while ordering striking off the appellant's defence he did refer to some of the contentions raised by the appellant in his application for review under section 151, C.P.C. which too was dismissed by the same order and held: "It is really astonishing to note that the opponent, if at all was in possession of the receipts did not care to produce the same either with written statement or with the objections to application under section 16 of Sindh Rented Premises Ordinance, 1979. The rent order was passed keeping in view the material available in record. In case the receipts which have been produced now, would have been produced alongwith the objection, the same might have been considered. The applicant has disputed genuineness of these receipts and has contended that these are fabricated and afterthought."
Further it was held: "If the opponent did not produce receipts at the time of filing written statement and objections to application the fault must lie at the doors of opponent. The order was passed after considering the different contention of partiesadvocates and the material available on record therefore there is no apparent error/mistake in the order which issought to be reviewed."
Reference was also made by the learned Controller to all the six receipts produced by the appellant for payments made by cheque and mentioned in the statement issued by the appellantsBankers M/s. National Bank of Pakistan. According to him "on reading of the four receipts, it would appear that signatures thereon do not tally with the signatures of the landlord/applicant as appear on Vakalatnama/application etc. The receipts do not indicate that as to who acknowledged receipt of the cheque. Under these circumstances, though production of receipts is afterthought, the same cannot be considered at all".
It is pertinent to note here that while passing the impugned order, the learned Controller nowhere discussed or took note of the ground for non-production of the Bank Statement and the receipts on the date of tentative order. Similarly he overlooked para. 5 of affidavit-in-evidence in which the respondent has admitted that "the opponents have also paid the rent of December, 1981 and January, 1982 on 9-2-1982". It is also not clear from the impugned order which of the four receipts out of the six receipts do not tally with the signatures of the respondents so as to ascertain the months/period of which rent was paid or not paid. 'It is incredible that although the learned Controller did consider these receipts, he stated that the same cannot be considered at all. His finding that the signatures on four of these receipts do not tally with the signatures of the respondent is based upon his own opinion. However, while he examined these receipts, it is not understandable why he failed to take note of the entries of statement of account of the National Bank of Pakistan showing payments against cheques, reference of which is found in all the six receipts produced by the appellant justifying further inquiry. There is also error on the face of record as a result of which this part of the impugned order is also liable to be set aside. Hence the appeal is accepted but with no order as to costs.