1. ' 1 have heard the learned counsel. The tenancy disputes in the above-noted appeals are between the same parties, figuring in each of the appeals in identical capacities and, therefore, the three appeals are disposed of through this common order.
2. ' In F.RA. No, 514 of 1989 the appellant-tenant has questioned .the order dated May 31, 1989 in Rent Case No,1326 of 1986 (renumbered 125 of 1988) whereby the defence of the appellant-tenant was struck off. Such order was passed by the learned IIIrd Senior Civil Judge and , Controller, Karachi (Central) in the background of a tentative order of deposit of rent under section 16(1) of the Sindh Rented Premises Ordinance, 1979 dated August 1, 1987. Apparently, the agreed rent between the parties under a registered' Agreement of Tenancy dated February 17, 1982 was one on a sliding scale, in an ascending order, providing that the two portions of rent namely, use and occupation charges, on the one hand, and hire charges, on the other, would be subject, during the subsistence of the five-year tenancy, to an annual revision at the rates of Rs.300 and Rs.200 per month respectively. This seems to have been devised to cater to the inflationary tendency in the economy, the two rates, in effect, initially being Rs.2,300 and Rs.1,700 respectively. The learned Controller,' rightly or wrongly, a question on which I would not like to dilate upon, refused to direct deposit of the purported hire charges relative to fittings and fixtures and required the appellant-tenant only to deposit the rent allegedly properly so called. Thus the issue, whether hire charges would or would not be covered by the expression "such other charges which are payable by the tenant" rounds: firstly, it failed to deposit all the arrears and accruing rents up to May 3, 1988 by which time bulk of the deposits were made by it and secondly, in the same context, admittedly, totally failed to make any deposit whatsoever from June to September, 1988.
3. ' Mr.Zahiruddin for the tenant has urged that the landlady had illegally recovered hire charges from the tenant adjustment for which the tenant was entitled to make and besides there was a fixed deposit of Rs.42,000 which would set off the default, if any. Learned counsel also assails the rate of rent, ascalating in an ascending order.
4. ' It is unnecessary to enter into any controversy as regards the rights and entitlements of the parties regarding the actual arrears due in the context of the tentative order of deposit of rent passed under section 16(1) supra. No error of computation is alleged. All that is said is that hire charges were illegally recovered throughout the tenure of the tenancy, requiring adjustment at the time of passing the tentative order of deposit. But that had been in terms of contractual commitments, validity whereof was yet to be adjudicated upon in due course. If there were any such disputes, even if genuine and lawful, such ought to have awaited the ultimate determination of the rate and dues between the parties at the time of conclusion of proceedings. At the stage of a finding in terms of section 16(1) ibid. a Controller holds only a summary inquiry and assessee the rate of rent as well as the quantum of dues only approximately and never finally. Such inquiry is not a trial within a trial. Thus, while making a provisional order of deposit during the pendency of a Rent case, a Controller is only required to make an ex facie assessment on the basis of available material and according to sound and well-established principles of law and justice. Such has to be a fair order and must not upset the balance, leaving more A controversial aspects for the final determination. Till such time as a tentative rent order is in force and holds the field the parties must abide with the same. In other words, a tenant has to make scrupulous compliance of a tentative order of deposit, leaving the broader and basic controversies as regards the true rate, quantum etc. to be decided in the ultimate analysis. This is now settled law (See Rahimuddin v. Jalaluddin PLD 1991 SC 484). Thus the arrears determined by the learned Controller should have been honoured at the tentative level.
5. This is not to spy that patent illegalities and manifest injustice in a tentative rent order may not be open to examination in an appeal against an eviction, following striking off the defence. This, speaking broadly, is so because while a Controller, subject to well-recognised exceptions (See Ismail v. Gul Inayat Shah PLD 1991 SC 997), may not modify the tentative determination a Court sitting in appeal against an order involving defence being struck off, can examine the initial as well the final order and may take note of manifest illegalities in the first and extend relief as regards the second. However, the scope of this exercise, in both such contexts, is confined to injustices, illegalities and jurisdictional errors none of which figure in the instant case: Abdullah Ghangro v.
6. Tahira- Begum 1988 SCM R 970; Hussain Bux v. Yacloob 1990 SCM R 1354; Abdul Rehman v. Mir Ahmad Khan PLD 1991 SC 844; Najmuddin v. Anis Fatima 1988 SCM R 962, and 1991 SCM R 64; Asad Bros v. Ibadatyar Khan 1991 SCM R 986 and Miskina Jan v. Rehmat Din 1992 SCM R 1149.
7. More than this need not be said because the case can be approached on a still surer ground. This arises because, admittedly, for the period June to September, 1988, there is a continuous default, spreading over a span of four months, which remains inexplicable on any legal plane. Little exception, therefore, can be taken to the order of the Controller striking off the tenant's defence.
8. Regarding the fixed deposit, that was refundable only on the expiry of tenancy and it has not been shown that such was adjustable towards rental dues. Zarina Khuwaja's case PLD 1988 SC 190 laying down that security deposit is to be applied in the manner stipulated and not otherwise e.g. not to cure a general default, unless agreed, Would, therefore, come in the way of any relief based on that premises. (See also Asghar All Imam v. Muhammad Ali PLD 1988 SC 228 and Saeeda Khatoon v.
9. Muhammad Ahmad Latif, PLD 1990 SC 389).
10. As to the ascending rate of rent that too was an agreed term of tenancy and, at tentative level, it was not possible to arrive at any final determination on such score, more so in line with the postulates of section 3 of the Sindh Rented Premises Ordinance, only precluding landlords from charging or receiving rent at a rate higher than that mutually agreed or the Fair Rent, as the case may be. In view of there being no patent or manifest illegality, in the face of agreed terms holding swa y for a good part of five years, no different view at this level is warranted. F.RA. 514 of 1989 must, therefore, fail.
11. ' The other two F.R.As. namely, 522 of 1991 and 524 of 1991, preferred by either side, are directed against a common order of the IIIrd Senior Civil Judge & Controller, Karachi (Central) in Rent Case No,622 of 1985 whereby, upon an application of the tenant under section 8 of the Sindh Rented Premises Ordinance, 1979 for fixation of Fair Rent, the learned Controller, per order, dated 4-9-1991, by way of Fair Rent has, subject to a remission of Rs.500 p.m., maintained the agreed rent between the parties.
12. ' With Mr. Zahiruddin I have gone through the impugned order of the learned Controller. The principal plea in the application is that the agreement Inter-Partes was concluded in a manner otherwise than in due course inasmuch as the tenant was pressurised and coerced into agreeing upon an extortive rate of agreed rent of a sliding character in an ascending order, variable from year to year. On evidence, the tenant failed to prove the case of pressure/coercion and the tenancy was found by the learned Controller to be one concluded upon due volition and through a registered document. Even as regards the other ingredients of Section 8 in the Sindh Rented Premises Ordinance the learned Controller has found the mutually agreed rate prevailing at the time of adjudication to be just and fair in all respects. As a result, the agreed rent has been upheld as Fair Rent. It seems unnecessary to delve deep into the controversy pertaining to fixation of Fair Rent because Ex Facie the order appears to be equitable and lawful. Evidence has been carefully and minutely examined and the applicable law has been adequately approached. The learned Controller has also noted that per letter, .dated April 2, 1984 the tenant, disputing the rate, expressed a desire to vacate on April 17, 1984 rather than make payment in allegedly exorbitant terms. It is nobody's case that the premises was thus vacated. The implications are too obvious to be translated. At any event, due to defence of the tenant having been struck off, and that too before the fixation by the Controller, there hardly remains any great interest in the context of Fair Rent except, more or less, of an academic nature. As a result, the order of determination of Fair Rent in the above-noted two F.RAs. appears to be proper in the circumstances of the case and is maintained, the relevant appeals, in context, being disposed of corresponding.
13. ' Before parting with the case, I am inclined to grant four months' time to the tenant to vacate provided that it continues to make deposits of rent in consonance with the tentative rent order, already holding the field, failing which the tenant would be liable to be evicted in execution without any further notice to it. At the same time, as and when the premises is vacated, the landlady would return from out of the fixed deposit of Rs.42,000 upon due adjustment, whatever balance remains available within the entitlements of the tenant. Appeals disposed of.