1. Appellant Riaz Ahmed has called in question orders dated 22-11-1992 and 8-2-1993 passed by 11 Senior Civil Judge and Rent Controller, Karachi East in Rent Case No.336 of 1992. Said rent case was filed by respondent Sabu Ali Bhojani for eviction of appellant Riaz Ahmed from the house in litigation built on plot NoA-292, Block No.2, K.DA. Scheme No.24 Gulshan-e-Iqbal, Karachi.
2. Admittedly respondent is owner of the house in litigation, which is in possession of the appellant as tenant of the respondent. Rent of the house according to the respondent is Rs.3,000 per month and it is same according to the appellant. There was also an agreement about hiring charges of fixtures in the house in litigation, for which the appellant was required to pay an Additional amount of Rs.2,750 for each month subject to installation of the same.
3. In this Rent Application No.336 of 1992, the respondent sought eviction of the appellant on the grounds that the appellant had defaulted in payment of rent and hire charges for fixtures from 20- 12-1991 till the date of filing of the rent application and that the house in litigation was required reasonably and in good faith by the respondent for his own bona fide use.
4. The rent application was opposed by the appellant who in his written statement took plea that he had paid Rs.46,000 as security deposit and Rs.500 as token money and Rs.3,000 as advance rent. In respect of the hiring charges for the fixtures, the appellant stated that the fixtures were not yet supplied. Appellant added that under an agreement executed in December 1991 between the parties it was settled that the amount of security deposit would be adjusted towards the future monthly rent and that the appellant paid Rs.16,500 for supply of fixtures and Rs.1,500 towards electricity bill for consumption before commencement of tenancy. Some more rent was said to have been deposited by the appellant, in account of wife of the respondent at latter's instance, in a bank.
5. On 22-11-1992 the Rent Controller seized of the case, passed an order under section 16(1) of the Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance) directing appellant Dr. Riaz Ahmed to deposit in his Court (i) arrears of monthly rent from December 1991 till October 1992 at rate of Rs.3,000 per month by 7-12-1992, (ii) rent hiring charges in respect of the fixtures from February 1992 till October 1992 at rate of Rs.2,750 per month by 7-12-1992, (iii) future monthly rent in respect of the fixtures in the house for each calendar month at rate of Rs.2,750 per month by 10th of that month, commencing with November 1992 Amount to be deposited in respect of the fixtures was not to be disbursed to the respondent. On 14-12-1992 the respondent moved an application under section 16(2) of the Ordinance in the trial. Court praying that defence of the appellant be struck off for non--compliance with the order dated 22-11-1992. Said application under section 16(2) of the Ordinance was opposed by the appellant, who in his counter-affidavit stated that he was depositing the rent in name of Shahida Parveen wife of the respondent under latter's instructions who usually remained out of Karachi. Appellant claimed to have paid on 10-12-1989 an amount of Rs.16,500 for providing fixtures, which were never provided. Appellant wanted said amount as well as an amount of Rs.1,5W paid for clearance of an electricity bill, to be adjusted towards the monthly rent. After hearing counsel for the parties, learned IInd Senior Civil Judge and Rent Controller, Karachi East under the impugned order dated 8-2-1993 struck off defence of the appellant and ordered the respondent to be put in possession of the premises in litigation within 60 days. Hence this appeal.
6. Mr. S. Khizer Asker Zaidi learned counsel for the appellant argued that while passing the order under section 16(2) of the Ordinance on 22-11-1992, learned Rent Controller had not kept under consideration the documentary evidence placed on record by the appellant. It was conceded that the rent order dated 22-11-1992 was not complied with in respect of hiring charges. It was argued that the said order was complied with in respect of deposit of monthly rent. It was further argued that learned Rent Controller had not considered versions of both the parties and that the amount already deposited was not taken into account. In support learned counsel for the appellant cited the cases of:
(i) Ali Jan v. Shujauddin (PLD 1985 Kar. 698).
(ii) Choudhry Rahimuddin v. Choudhry Jalaluddin (PLD 1991 SC 484).
7. Mr.Abdul Sattar Memon learned counsel for the respondent argued that there were agreements (copies Annexure A/4 and Annexure A/6) in respect of the fixtures and that the appellant was bound by said agreements and non-payment of hiring charges would invite penal provisions contained in section 16(2) of the Ordinance. In this respect learned counsel took efforts to convince the Court, that the hiring charges were covered by the definition of rent given by section 2(i) of the Ordinance. It was further argued that the Rent Controller had considered all the points raised by the appellant before passing the impugned order. In support learned counsel for the respondent cited the cases of:
(i) Choudhry Rahimuddin v. Choudhry Jalaluddin (PLD 1991 SC 484)
(ii) Shan Illahi v. Mst. Mahmooda Begum (1984 CLC 931).
(iii) Dr. Muhammad Ilyas Akhtar v. Mst. Ghafooran (1984 CLC 1652).
(iv) Nasim Ahmed v. Senior Civil Judge and Rent Controller and another (PLD 1982 Kar. 210).
(v) Mrs. Tasneem Usman v. Abdul Majid (1990 CLC 1317).
(vi) Islam Riffat Siddiqui v. Mahmood Abid Rizvi (1985 SCM R 170).
8. Respondent produced through his witness and attorney Haji Ulfat Ali copies of for agreements said to have been executed between the parties. Under agreement Annexure A/2, dated Nil of December 1989 respondent rented out to the appellant the house in litigation on rent of Rs.3,000 per month excluding electric, gas, water and conservancy charges. One month's rent was paid in advance, while Rs.18,000 were paid as fixed deposit by the appellant to the respondent. All this is mentioned in the agreement Annexure A-2. Said, agreement was superseded by agreement Annexure A-3 executed on 20-1-1991 between the parties. Under this agreement the respondent let out the house in. Litigation to the appellant on payment of Rs.3,000 per month as rent but such rent was payable in advance before 10th of each calender month. Rs.18,000 were said to have been paid by the appellant to the respondent as fixed deposit. In respect of fixtures there is an agreement Annexure A-4, dated Nil of December 1989., by which the appellant agreed to pay to the respondent each month Rs.2,750 as rent of the fixtures. Appellant paid to the respondent at the time of execution of said agreement a sum of Rs.16,500 as fixed security deposit against the fixtures and also paid advance rent for one month. It is not mentioned in this agreement as to from what month the tenancy was to start and from what date the payment of rent of the fixtures was to be made. Said agreement in respect of the fixtures was superseded by agreement Annexure A-6 dated 20-1-1991. Under said agreement dated 20-1-1991 the appellant was liable to pay to the respondent a mutual agreed hire charges of Rs.2,750 per month. In this agreement it was also mentioned that the respondent had received from the appellant Rs.16,500 as fixed security deposit against the fixtures. Said amount was returnable at the time of return of the fixtures. An advance of Rs.2,750 was said to have been paid by the appellant to the respondent as advance hire charges.
9. All this has been incorporated in the said agreement dated 20-1-1991.
10. The first and foremost point to be considered is as to, whether the hiring charges for the fixtures can be treated as rent for the purpose of passing order under section 16(1) and under section 16(2) of the Ordinance. According to clause (i) of section 2 of the Ordinance, `rent' includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid. In the West Pakistan Urban Rent Restriction Ordinance no separate definition of rent was given but the definition of "fair rent" was given under section 4. In said Ordinance the meaning of the word `building' was given under clause (a) of section 2 to be any building or part of a building let for any purpose, whether being actually used for that purpose or not, including any land, godowns, outhouses, together with furniture let therewith but does not include a room in a `Sarai', hotel, hostel or boarding house. Use of the word `furniture' appearing in clause (a) of section 2 of Urban Rent Restriction Ordinance shows that along with the building, furniture can also be let out, on the same pattern as a building. In the present Ordinance word `land' has been explained under clause (e) of section 2 to be land or open space, not being agricultural land or land or open space attached or appurtenant to any building. In the present Ordinance `building' has been explained under clause (a) of section 2 to be any building or part thereof together with all fittings and fixtures therein, if any, and includes any garden, garrage, outhouses and open space attached or appurtenant thereto. In this way "fittings and fixtures" go with the building. In other words like a building, the fittings and fixtures in it can also be leased out.
11. No case-law has been cited by either of the counsel on this point. However, in view of the statutory provisions discussed above, I am of the view-that hiring charges for the fixtures in a demisect premises, are part of the rent and are covered by the definition of "rent" given under clause (i) of section 2 of the Ordinance.
12. Perusal of the agreements Annexure A-4 and Annexure A-6, does not show as to, from what date the hiring charges were payable. In the agreement Annexure A-6 it has been mentioned that the period of the agreement was 11 months commencing with 20-1-1991. There is nothing in any of these agreements, that the payment of hiring charges would commence after supply of the fixtures. This shows that fixtures were already there in the demised premises, before execution of the agreements Annexures A-4 and A-6.
13. There is force in the contention that while passing the impugned orders, learned Rent Controller did not consider all the payments made by the appellant. In particular the Rent Controller has not said a word about claim of the appellant that he had paid to the respondent Rs.46,000 as security deposit and Rs.500 as token money and Rs.3,000 as advance rent and Rs.16,500 as advance for fixtures. The Rent Controller was supposed to consider all such claims about payments before ordering ,deposit of rent. Both the learned counsel in the case placed reliance on the case of Chaudhry Rahimuddin (PLD 1991 SC 484) where the Rent Controller had taken into consideration the versions of both the parties while ordering deposit of arrears of rent. In the said case a quotation has been reproduced from the case of Mrs.Akhtar Jehan Begum and others v.
14. Muhammad Azam Khan (PLD 1983 SC 1). It would be profitable to reproduce the same observation in this case. It reads as below:-- "The plain reading of the above provision makes it abundantly clear, that for the purpose of passing the order of deposit under it, the Controller has not to determine the question of quantum or rate of rent, finally, if the same is in dispute, but to determine such amount `approximately'. This is the clear import of the words underlined above. Further, this excludes final adjudication of this question. In the pretaises the consequences of non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non-compliance by striking off the defence and passing the order -of eviction. If the argument of the respondent is accepted, then in every case the Controller would be competent to order ejectment of the tenant only on his final determination of the question as to quantum of arrears of rent or rate of rent:'
15. In the case of Ali Jan (PLD 1985 Kar. 698) it was held that if there is any dispute about the amount of rent due or the rate of rent, the Controller before passing the order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance is required to determine such amount approximately and direct the same to be deposited by the tenant. The scope of inquiry before passing order under section 16(1) of the Ordinance has been considered in a number of cases decided by the Superior Courts. In the case of Nasim Ahmed (PLD 1982 Kar. 210) it was held that section 16 of the Ordinance provides for a summary inquiry as the Controller deems fit for determination of the arrears of the rent due and that since the inquiry is to be summary hence the nature of the order is to be tentative because final determination of the rate of rent and arrears, is to be made after recording of evidence.
16. It is also for the Rent Controller to determine by way of summary inquiry if the amount of Rs.46,000 and Rs.16,500 has been paid by the appellant to the respondent as security deposit. It is again to be determined whether after deposit of such amount as security deposit, the defence of the appellant can be struck off.
17. For the foregoing reasons, I accept this appeal and set aside the impugned orders and remand the matter to the Rent Controller to re-decide the application of the respondent under section 16(2) of the Ordinance in accordance with law and in light of the case-law. There shall be no order as to costs.