1. ' This First Rent Appeal is directed against the order of the learned IInd Senior Civil Judge and Controller, Karachi (South), in Rent Case No, 669 of 1988, dated 23-4-1991, whereby under section 16(2) of the Sindh Rented Premises Ordinance the learned Controller struck off the defence of the appllant-tenant on the ground that the rent for the month of January, 1990, which was to be deposited on or before February 10, 1990, was actually deposited by the tenant on 5-3-1990 and, therefore, it was in default.
2. ' The facts germane to these proceedings are based on the rent case filed by the respondent on 28-4-1988 seeking eviction solely on the ground of default, allegedly for a period of 8 (eight) months at the rate of Rs,250 per month, culminating in the month of March, 1988. The tenant in its written statement apart from denying default took preliminary objections to the effect that the application was not duly filed by an authorised person and that the person who had subscribed to the application was not the landlord of the tenant-hold. Per record, the application was filed in the name of M/s. Mian Chambers through Mian Saifullah son of Mian Amanullah (late). Be that as it may, on 27-2-1989 the said Mian Saifullah submitted his affidavit-in-evidence and was cross- examined thereupon on 11-12-1989; during the course of which cross-examination he stated that either he or Shafqatullah or rent collector, Riaz, signed the rent receipts exhibited as 0/1 to 0/4, all of which he admitted to be for several months at a time though at the same time denying that the rents were colleced at the convenience of the landlord. These were printed receipts in the name of Mian Chambers. No question in cross-examination was asked that the rent case was filed unauthorisedly or that the landlord was not the one, as projected. Another affidavit-in-evidence from the side of the landlord was that of Mian Shafqatullah, also son of Mian Amanullah, who affirmed that he was one of the owners of the property and that Mian Saifullah was his brother, the rent receipts being signed and issued by himself and his brother or by the (paid) rent collector or sometimes by their late father in his capacity of rent collector within the meanings of landlord. This witness even though available for the purpose was not cross-examined and the applicant in the rent case closed its side on 11-12-1989. Then the appellant-tenant submitted its affidavit-in- evidence evidently on 30-1-1990 and a significantly alongwith it was submitted an original money order coupon for a sum of Rs,1,000 in the name of Mian Saifullah son of Mian Amanullah. What is more, in his affidavit-in-evidence tenant's witness Muhammad Ali did not say a word about the rent case having been incompetently filed. Part of the cross-examination on this witness was conducted on 6-10-1990 when the matter was adjourned for the production of original receipt regarding payment of rent of 10 (ten) months from August, 1987 to May, 1988 purportedly dated 16- 3-1988.
3. ' Meanwhile, as regards the proceedings under section 16 of the Sindh Rented Premises Ordinance, on an application of the respondent under subsection (1) of that provision the learned Controller on 17-10-1989 had passed an order of deposit of rent for the period May, 1989 to September, 1989 at the rate of Rs,250 per month as "admittedly" such was the rent due on the date of passing the order. Additionally accruing rents were also required to be deposited on or before the 10th of each succeeding month. In context, the landlord on 26-8-1990 filed an application under section 16(2) of the Ordinance seeking that since the tenant had failed to make deposit within the time prescribed the tenant's defence be struck off. The learned Controller, as already seen, per order dated 23-4- 1991 struck off the defence on the ground that the rent for the month of January, 1990, required to be deposited on or before February 10, 1990 was deposited only on March 5, 1990. This order, as said, is assailed here.
4. ' Mr. Muhammad Saleem has raised several arguments before me. His first contention is that the learned Controller could not have passed an order of deposit of rent in terms of section 16(1) ibid before deciding the preliminary question as to his jurisdiction in the matter of entertaining the application at the instance of an unauthorised person, who was not the landlord of the premises.
5. Learned counsel has next urged that, at any event, the application was not maintainable because at the time when it was filed, exclusively on the ground of default, there was no default whatever on the part of the tenant. On this premises alone, it has been urged, the learned Controller ought to have thrown out the rent case rather than passing an order under section 16(1) above. It has lastly been urged that no notice within the meanings of section 18 of the Ordinance was given, intimating the factum of change of ownership upon the demise of the father of the person who had filed the rent case. In this view of the matter, according to learned counsel, no default whatever could occur till appropriate notice was given. This ground, incidentally, was never taken before the learned Controller though it has found mention in the grounds of appeal at this stage.
6. ' As to the first contention namely, that a question touching jursidiction of the Controller must be determined first before passing an order of deposit of rent tentatively under section 16(1) (supra) or its parallel provision under the erstwhile applicable West Pakistan Urban Rent Restriction Ordinance, 1959, the law is well-setteld. Unquestionably an issue of the character going to the root of the controversy and involving jurisdiction is more an issue between the Court and the parties than between the parties inter se and such has got to be determined before any basic order in the proceedings is passed. Learned counsel has in the context referred to Muhammad Akram v.
7. Muhammad Zat, 1987 SCM R 1788, which lays down an identical proposition. However, on facts, as seen, the question of maintainability on the record of the rent case, in effect, had stood given up at all material times, in circumstances which have already been narrated. The learned Controller, therefore, was competent to strike off the tenant's defence at the time when he came to pass such order.
8. As regards the next contention of the learned counsel namely, that the rent case could not he entertained since no rent was due at the time the rent case was filed and further that no order of deposit in terms of section 16(1) could be passed in this situation, all that need be said is that a case cannot be thrown out by a judicial forum if ex fade it attracts the jurisdiction of the forum. It is another matter that the same may fail in due course of time and in due course of law. The rent case, therefore, could be entertained and it is a different matter whether ultimately it was or was not found maintainable.
9. It is true that at the time the provisional order of deposit was passed on 17-10-1989 it was an admitted position that the rents which were due pertained only to the period May, 1989 to September, 1989 and thus did not involve the period of default, which was the subject-matter of the rent case and on which alone the rent case was based. This in itself did not divest the Controller of jurisdiction to pass the tentative order of deposit of rent because such an order is to be passed mandatorily on an application of a landlord irrespective of the fact whether the rent case does or does not involve a ground of default. In other words, in rent cases covering merely the grounds of subletting, personal requirement, nuisance, impairment of the value or utility of the premises and so on such an order has got to be passed if a landlord makes due application under section 16(1) of the Ordinance and subsistence of arrears of rent either at the time of making of the application or at the time of passing the tentative order is not relevant.
10. Here another objection of the learned counsel may be disposed of, which is to the effect that since no arrears were outstanding at any time up to the date when order of deposit of rent was passed the rent case from inception had remained non-maintainable. A rent case may be filed not merely as regards the arrears of rent which are physically outstanding but also on the basis of a default of an earlier date, the landlord claiming that he had not waived the default in spite of receiving the rent of the defaulted period from the tenant. Reference in context may be made to the dictum to Zafar Hussain Mirza, J., then in this Court in Muhammad Ahmad v. Qamar Ahmad, 1980 CLC 664 and other cognate case law and in particular Khadim Ali Shah v. Pakistan Burmah Shell, 1986 CLC 1487, also affirmed in the Supreme Court in Civil Appeal No, 199-K of 1986, decided on 30-9-1985. On this point Mr. Shafi Muhammadi has also drawn my attention to a printed condition on the obverse side of the receipt, which expressly stipulates that receipt of arrears of rent in lump sum will not constitute waiver of default. Therefore, irrespective of the fact whether the landlord was ultimately proved right or wrong such a rent case, as aforesaid, was ex facie maintainable and had to proceed to trial. Accordingly, the order directing tentative deposit of rent could not on such basis alone be treated to be one without jurisdiction.
11. ' Coming to the last contention of the learned counsel namely, that no notice of devolution of ownership whatever under section 18 of the Ordinance was given and, therefore, no actionable default in payment occurred, all that need be said is that the material on the record, which includes despatch of rent in the name of the very person, who is the signatory to the eviction case, is not sufficient to sustain such an allegation and on the contrary that material, as reflected above, may be enough to withstand any other or fruther evidence which may have been recorded on the point. However, purely as a question of law, it may be stated that even if such a notice, assuming its requisiteness, was not given that would only affect the main proceedings based exclusively on the ground of default, a question requiring to be determined in due course of time in the proceedings themselves. Once, in such-like proceedings, a plea of want of requisite notice under section 18 (supra) is taken before the Controller, the Controller may adjudicate upon it in a summary manner with or without framing a preliminary isssuc. Failing the raising of such a plea, the Controller can hardly be blamed for passing a tentative order of deposit. What is more, even at this appellate stage, from the record or otherwise, it has not been shown that there was any devolution of title divesting the property, necessitating the service of a notice under section 18, aforesaid.
12. ' None of the foregoing objections to the tentative order of deposit of rent, therefore, appears to have been validly taken, rendering the order under section 16(1) of the Ordinance to be unlawful so as to nullify the consequential order of striking off the tenant's defence under section 16(2) ibid., the last flowing from the broader principle that if the basic order be illegal the super structure of rights founded thereupon is equally so and likewise unsustainable.
13. ' For these reasons, I have found no justification to interfere with the impugned order. This FRA is dismissed. However, the tenant is allowed six (6) months' time to vacate, provided he continues to make deposits during such period, as already required.