1. ' Appellant Shamsher Ali has assailed an order dated 13-1-1991 by which his defence was struck off in Rent Case No,1262 of 1984 and his eviction was ordered from the room in litigation.
2. ' Admittedly the appellant is tenant of the respondents in a small room of Delhi Mansion Robson Road Karachi on monthly rent. In their Rent Application No, 1262/84, the respondents sought eviction of the appellant from said room on the grounds that the appellant had caused damage to the property in litigation and that the demised room was required by the respondents in good faith for accommodating their Chowkidar. The rent case was being contested by the appellant who controverted both the grounds put forth for his eviction while admitting the tenancy.
3. ' On an application having been moved under section 16 (1) of Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance) by the respondents, the Rent Controller passed rent deposit order dated 7-1-1988 by which the appellant was directed to deposit in Court within 45 days the arrears of rent amounting to Rs,2,640 for the period from 1-9-1980 to 31-12-1987 and to deposit future monthly rent at the rate of Rs,30 p.m. For each month by 10th of the next following month.
4. ' Subsequently there was an application under section 16 (2) of the Ordinance for striking off defence of the appellant, on the ground that the appellant had not deposited the rent for September 1980, November 1987 and December 1987 within the period fixed by the Court. Said application was opposed by the the appellant, who filed his objections.
5. ' Under the impugned order dated 13-1-1991 the Rent Controller struck off defence of the appellant and ordered his ejectment after holding that rent for the month of September 1980 was not paid within 45 days from 7-1-1988. Hence this appeal.
6. ' Mr. Dilawar Hussain, learned counsel for the appellant argued that the Rent Controller was not competent to order deposit of arrears of rent for the period prior to 3-4-1981 as the rent application was filed on 3-4-1984. In support learned counsel cited the cases of Mohammad Aslam v. Pakistan Steel and another (1990 CLC 849), Asghari Begum v. Baji Dubash (1991 CLC 203). It was next argued that in their rent application the respondents had not sought eviction on the ground of default in payment of rent and as such order about deposit of rent under section 16 (1) of the Ordinance could not have been passed. On facts it was argued that the rent for September 1980 was sent by the appellant to the respondents by money order.
7. ' Mr. Muhammad Usman, learned counsel for the respondents argued that the appellant had not taken the plea in his written statement that a part of the arrears of rent was barred by limitation and as such the arrears of rent ordered by the Rent Controller on 7-1-1988 were to be deposited by the appellant, even if a part of said amount may be time-barred. In support learned counsel cited the cases of:
(i) Dost Mohammad and another v. Momand and another (1989 SCM R 89).
(ii) Mohammad Rafiq and others v. Barkat Ali and others (1988 SCM R 1526).
(iii) Chairman, Pakistan Railways v. Maqbool Ahmed, (1989 SCMR 1668 (1).
8. Section 16 (1) of the Ordinance empowers the Rent Controller to make such summary inquiry as he deems fit, determine the arrears of rent due and order the tenant to deposit the same within the period as may be fixed and to order the tenant to deposit monthly rent. There is nothing in the leanguage of section 16 (1) of the Ordinance, that an order contemplated by section 16(1) of the Ordinance can be passed in those rent applications only where eviction is prayed on the ground of default in payment of rent. Provisions contained in section 16 (1) have nexus with pendency of a case for eviction of a tenant, irrespective of the ground taken for eviction of such tenant. Hence the objection that no order under section 16 (1) of the Ordinance could be passed in a case for eviction of a tenant on the ground other than default in payment of rent, is repelled.
9. ' Learned counsel for the respondents did not press the application in respect of rent for November 1987 and December 1987 but he pressed the application in respect of non-deposit of rent for September 1980. In reply to the plea about the rent for September 1980 being time-barred, learned counsel for the respondent contended that unless limitation point was specifically raised in the written statement, no note of the same can be taken at appellate stage and even the time-barred rent can be ordered to be deposited in Court under section 16 (1) of the Ordinance. First case cited by learned counsel was that of Mohammad Rafiq and others (1988 SCM R 1526) Where the point about the suit having been presented before time but before a wrong Cart, was not raised before the lower Court and the Supreme Court of Pakistan declined to entertain it, and refused leave to appeal. Second case cited by learned counsel for the respondent was Chairman, Pakistan Railways v. Maqbool Ahmed and others (1989 SCMR 1668) (1)), where it was observed that if a party does not raise the plea of limitation before the Court concerned to which the plea initially relates, the same cannot be raised as of right before a higher forum simply because the lower forum was under a duty to examine the question of limitation. Third case cited was that of Dost Mohammad' and others (1989 SCM R 89), where it was held that the High.Court was not obliged to entertain the question of limitation not raised before the trial Court. Present case is distinguishable from the cited cases because in the present case the rent application was not based on the ground' of default in payment of rent. Hence in the present case the appellant had no chance at the lower forum to plead that claim of rent for a particular period was time-barred. As such the three cited cases on the point have no application to this case.
10. ' Penal provisions contained in section 16 (2) of the Ordinance could have application, if default to deposit the rent ordered to be deposited, was committed in respect of the rent which was legally recoverable through the machinery of law. In the instant case the rent application was filed on 3- 4-1984 when rent for the period prior to 3-4-1981 including for the month of September 1980 had become time-barred. There is force in the contention raised on behalf of the appellant that time barred rent could not be ordered to be deposited in Court under section 16 (1) of the Orinance and for non-deposit of such rent penal provisions contained in section 16 (2) of the Ordinance could not be invoked. Case of Asgheri Begum v. Baji Dubash (1991 CLC 203) was not directly on the point. In cited case the view taken was that an application under section 15 of the Ordinance for ejectment of a tenant on the ground of default in the payment of time-barred rent could not be maintained under the law. The point raised is supported by a decision of the Supreme Court of Pakistan reported in PLD 1968 SC 230 (Ashfaqur-Rehman v. Muhammad) where it was held that a Rent Controller acting under section 13 (6) of the W.P. Man Rent Restriction Ordinance, 1959 cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation. In the case of Mohammad Aslam (1990 CLC 849), the view taken by a D.B. Of this Court was that the Rent Controller could not have ordered deposit of the arrears of rent for more than 3 years preceding the filing of the rent application. This authority supports contention of learned counsel for the appellant that the Rent Controller could not have ordered for deposit of rent which was time-barred on the date of filing the rent application.
11. As a result of above discussion, I agree with learned counsel for the appellant that no exception can be taken for non-doposit of rent for September 1980 which was time-barred on the date the rent case was filed. In this view of the matter I set aside the impugned order and accept this appeal and remand the case to the Rent Controller for proceeding on merits and disposing of the rent case in accordance with law.
12. ' The parties and their advocates are required to appear in Court of the VIII Senior Civil Judge, Karachi South on 9th May 1992, at 9-00 a.m.