' The appellant is tenant of the respondent in respect of commercial premises bearing No,1-K-12, Commercial Area, Nazimabad, Karachi, vide Tenancy Agreement of 1st May, 1978. Origjpally the rent was Rs,500 per month but in 1982 it was enhanced to Rs,700 per month. According to the respondent landlady rent was always paid through cheques. It is alleged that arrears of rent accumulated in 1984 and in September, 1984, the appellant paid Rs,4,900 through cheque which were adjusted against the rent for the months of November, 1983 to May, 1984 and in March, 1985 a further sum of Rs,4,200 was paid through another cheque which amount was adjusted against the rent for the months of June 1984 to November, 1984. According to the respondent landlady, the appellant did not pay any rent thereafter (that is, since March, 1985) and thus rent since December 1984 was due. The rent petition was filed in December 1986. Thus, according to the landlady there was default of 25 months at the time of institution of the ejectment case. It is also the case of the landlady that water, gas and electricity charges, which were payable by the tenant, had also likewise not been paid for several years and as such with the result that gas and electric supply had been disconnected. It was further alleged by the landlady that the appellant, who was running a biscuit plant in the premises, had closed down the production and had even removed part of the machinery and equipment and, in the process, had caused damage to the premises which were lying locked. On these grounds the landlady sought the eviction of the appellant. In her written statement, the appellant's stand is that rent was being paid by cheque as well as in cash and that no rent was due at the time of filing ejectment application and that no rent receipts were issued by the landlady. According to the appellant payment of Rs,4,900 in September, 1984 was not for arrears but it was advance rent up to March 1985 and the second payment of Rs,4,200 through cheque in March 1985 was again advance 'rent for the period April 1985 to September 1985. The appellant then stated that the respondent refused to receive rent thereafter whereupon it was deposited in Court in Misc. Rent Case No,1087 of 1986 "from September 1986". IT IS SIGNIFICANT TO NOTE THAT THE 'WRITTEN STATEMENT IS SILENT IN RESPECT OF RENT FOR ONE FULL YEAR---FROM OCTOBER 1985 TO SEPTEMBER 1986 and from a perusal of paras 5 and 6 of the written statement it would appear that the appellant tacitly conceded default for this period. An application under section 16(1) of the Ordinance having been moved by the landlady, the appellant filed objections and the learned Rent Controller, after holding summary enquiry on the basis of record passed the order. On 1-8-1987 for the deposit of tentative rent, directing the appellant to deposit the arrears at the admitted rate of Rs,700 per month from December 1984 to June 1987, amounting to Rs,22,400, within sixty days (that is, by 30-9-1987) and to deposit the future rent (from July 1987 onward) by the 10th of the following months. The appellant was allowed to adjust the deposit made in Misc.
Rent Case No,1087/1986 while depositing the arrears.
2. The appellant failed to comply with the order dated 1-8-1987, passed under section 16(1) of the Ordinance whereupon the respondent moved application under section 16(2) of the Ordinance on 6-10-1987 to which the appellant filed objections in which it was tacitly admitted that compliance was not made with the order under section 16(1), the averments made in the written statement were reiterated and it was requested that the Rent Controller should examine witnesses Muhammad Asians and Shahid Hussain before whom rent had been paid in cash and who would prove that there were no arrears to be deposited. (Interestingly enough, addresses of these two witnesses were 'not disclosed). After hearing the patties, Learned Rent Controller struck off the defence of the appellant vide impugned order dated 18th February 1988. Hence this appeal.
3. The contention of Mr. Khalid Javed Advocate, learned counsel of the appellant, is that order passed under section 16(1) of the Ordinance is illegal and unwarranted because the appellant had claimed that she had paid rent of the disputed period in cash and, therefore, the appellant should have been permitted to examine the two witnesses to prove the payment and he claimed that the course of action suggested by him is supported by the judgments reported at 1986 M LD 2980 (Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi), 1986 M LD 318 (Abdul Ghafoor v. Sarwat Samina Shah), PLD 1985 Kar. 698 (Ali Jan v. Shujauddin) and 1988 CLC 306 (Mst. Khalida Begum v. Mst.
Amtul Baqi and another).
4. I am afraid there is no force in the contentions raised by learned counsel of the appellant. It is highly improbable that the appellant made any payment in cash, since till the period of default all the payments were made by cheque per para. 2 of the application under section 16(1) which is reproduced "2. That the statement of account showing the last payments through cheques since June, 1983 are as follows:- {{TABLE TEXT}} S. No, Date of payment Amount Period of which through cheque rent was paid 20-6-1983 Rs,1,400 Jan./Feb., 1981 27-6-1983 Rs,1,400 March/April, 1983.
1-11-1983 Rs,1,400 May/June, 1983 941-1983 Rs,1,400 July/August, 1983
5. 14-4-1984 Rs,1,400 Sept./Oct. 1983
6. 24-9-1984 Rs,4,900 Nov. 83 to May, 1984
7. 12-3-1985 Rs,4,200 June to Nov.
1934."
' The appellant in her objections conceded the payment of rent for this period January 1983 to November 1984 only by cheque but added that these payments "did not depict the correct position" because rent was paid by cash also. It is incomprehensible why the payment by cash (and that too without receipt) should be made from the very month from which default is alleged.
The Rent Controller was, therefore, justified in directing the appellant to deposit arrears for the alleged period of default. Besides, there is no question of recording evidence of witnesses before passing order under section 16(1). If order under ,4 section 16(1) is passed after recording evidence and determining the arrears, then there would be no question of passing order for tentative deposit of rent because the question of arrears would stand finally determined and, therefore, a final order granting or rejecting the ejectment petition could be passed, thus rendering section 16 quite redundant. Learned counsel of the respondent has very aptly drawn the attention of the Court to the judgment reported as 1983 CLC 1309 (Muhammad Bashir v. Allah Dad) which is in respect of section 13 of the repealed 1959 Ordinance which is analogous to section 16 of the New Ordinance of 1979 and in which judgment it is held at page 1313 (in para marked 'D') that "in postponing the elaborate enquiry till the stage contemplated by second part of section 13(6) was reached, he appears to have acted in consonance with the policy and mandate of law. It cannot be reasonably said that he committed excess of jurisdiction or failed to exercise jurisdiction." Learned counsel of the respondent also referred me to the case of Choudhri Rahimuddin v. Ch. Jalaluddin (PLD 1991 SC 484) which totally shatters the defence taken by the appellant as to the recording of evidence by the Rent. Controller before order under section 16(1) of the Ordinance is passed. Moreover, objections to application under section 16(1) also do not contain the name of any witness. These names appear for the first time in objections on application under section 16(2) and even then their addresses are not disclosed.
5. The next contention of learned counsel is that the arrears of rent were not determined by learned Rent Controller and this determination was left with the appellant and, therefore, order passed under section 16(1) is illegal. This objection is based on false premises since order under section 16(1) shows that the appellant was directed to deposit Rs,22,400 by way of arrears representing arrears of rent for the period December 1984 to June 1987 @ admitted rate of Rs,700 per month. No doubt, the appellant was permitted to adjust the amount deposited by him in Misc. Rent Case No,1087 of 1986 while depositing the arrears but this was a concession granted to him but it does not mean that the Rent Controller had not determined the amount of the arrears.
6. Moreover, an order under section 16(1) of the Ordinance of 1979 consists of two parts, that in respect of deposit of arrears and that in respect of deposit of monthly rent and both parts are independent of each other and even when the part pertaining to the deposit of arrears is defective and illegal, the other part pertaining to the future monthly rent must still be complied with if it is valid and legal as held in PLD 1985 Kar. 698 (Ali Jan v. Shujauddin), wherein it was held at page 703 that: " The Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all that his order as a whole would be illegal. It is not disputed that the Controller had jurisdiction to pass the second direction as to deposit of future rent as contained in the order dated 23-9-1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though they may be contained in one order for the reason that there may be cases where there may not be any arrears of rent to be paid. In such cases there will not be any order by the Controller for deposit of arrears of rent. There will be an order only for deposit of future rent and in such case there could be a default in respect of future rent only. We may consider the question from another angle. Assuming the Controller had passed the order of deposit of arrears of rent according to law and also the order of deposit of future rent again in accordance with law and the appellant had complied with the order of deposit of arrears of rent but had not complied with the order of deposit of future rent, still the tenant would have been liable to be evicted from the premises. Thus, we are clear in our mind that the two directions which are required to be given by the Controller are independent of each other."
' So far as monthly rent is concerned, there is no dispute whatsoever, even about the rate of rent, but I find that the order under section 16(1) has been violated even in respect of monthly rent as well. This is proved by the report dated 210-1991 of the Serishtedar of the Court of the Rent Controller concerned. I had called up to date report after the conclusion of the hearing of the appeal because learned counsel of the appellant contended that there was no default in the deposit of monthly rent but the appellant had misplaced the receipts of deposits. Period of arrears is upto June 1987. Thus the rent of July 1987 was to be deposited before the 10th of August and in Rent Case No,1413 of 1986 in which order under section 16(1) was passed. However, the report of Serishtedar shows that the first deposit in Rent Case No,1413 of 1986 is of 18-11-1987 for Rs,1,400 which is evidently the rent for the months of July and August. Rent of July was thus deposited late by three months and eight days and of August was deposited late by two months and eight days. There is default even in respect of the subsequent months. For the sake of convenience, all the deposits made by appellant in Rent Case No,1413 of 1986 (as per report of Serishtedar) are given below:-{{TABLE}} S. No, Date Amount Period (Rs,)
18-11-1987 1,400 July & August 1987 28-1-1988 1,400 Sept. & Oct. 1987 2-4-1988 1,400 Nov. & Dec. 1987 (No deposits in the rest of 1988 and during entire 1989 and 1990). {{TABLE}} S. No, Date Amount Period (Rs,)
6-3-1991 2,100 Jan, Feb, March 1989 (late by three years)
26-5--1991 9,800 (For 14 months April 1988 to May 1989).
13-6-1991 700 June 1989 (late by two years)
9-7-1991 700 July 1989 (late by two years)
8-8-1991 700 August 1989 (late by two years)
9-9-1991 700 Sept. 1989 (late by two years).
Thus, there is default of over two years even in the deposit of monthly rent and whatever rent has been deposited was always deposited very late. And Hon'ble Supreme Court has held in Muhammad Umar v. Aiysha Aziz (1981 SCM R 276) that a delay of even three days could not be condoned if it was not shown that it was for reasons beyond the control of the tenant.
7. As such, even if the default in respect of arrears of rent is ignored--and I have held that there is no justification to ignore this default--even then the defence of the appellant is liable to be struck off for this colossal default in the deposit of monthly rent.
8. After the passing of the order under section 16(1) on 1-8-1987, the appellant could not lawfully deposit any rent in his Misc. Rent Case No,1087 of 1986 and if he made any deposit in Misc. Rent Case No,1087/1986 after 1st August 1987, it must be ignored for purposes of section 16(2) of the Ordinance. Even so, the first deposit made in Misc. Rent Case No,1087 of 1986 after the passing of 16(1) order on 1-8-1987, is of 29-9-1987 for Rs,1,400 which must be for the months of July and August, 1987. No rent of July was to be deposited by 10th August and rent of August by 10th September.
Thus, there is default in the deposit of rent for the months of July and August, 1987, even if deposits in Misc. Rent Case No,1087 of 1986 are taken into account.
9. It is thus clear that the appellant has, beyond any shadow of doubt, defaulted in the deposit of arrears of rent as well as future monthly rent and, therefore, learned Rent Controller very rightly struck off the defence of the appellant under section 16(2) of the Ordinance. The impugned order is, therefore, maintained and the appeal is dismissed with costs. In view of the gross and contumacious violation of the order under section 16(1) of the Ordinance, no further time is allowed to the appellant for the vacation of the premises.