1. ' This First Rent Appeal arises from ejectment proceedings initiated by the respondent-landlady on 6-3-1988, which, through an order dated 31-5-1988, culminated in a directive for the eviction of the appellant. Since the proceedings were ex parte the appellant sought recall of the referred order through his application dated 3-9-1988 but such was dismissed on 18-3-1991, giving rise to this Appeal.
2. ' On 27-5-1991, when this F.R.A. Was admitted to regular hearing upon C.MA. 656 of 1993, appellant's application for stay, ad interim orders were passed staying the proceedings before the Controller subject to the appellant regularly depositing accruing rents, which the appellant's learned counsel, correspondingly, intimated that he was already depositing. However, at a later stage, in this appeal, the respondent-landlady filed an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, seeking deposit of arrears as well as accruing rents, on a plea that the appellant had never previously deposited any rents. This application (C.MA. 999/1992) came up before the Court on 1-12-1991 and an order for deposit of arrears as well as periodic accruals was passed, arrears being required to be deposited on 14-12-1992 and accruing rents on or before the 10th of every calendar month. Nazir's report dated 16-12-1992, subsequently placed on record, shows that this order was in no manner complied with by the appellant, resulting in the respondent's filing C.MA. 314 of 1993, under Section 16(2) of the Ordinance, seeking that the appellant's defence be struck off. C.MAs. 999 of 1992 and 314 of 1993 are fixed today alongside regular hearing of this First Rent Appeal.
3. ' It is, in the circumstances, an uncontroverted position that the appellant-tenant never deposited any rents either in these proceedings or before the learned Controller wherefrom such proceedings have emanated. However, Mr. Moinuddin Ahmad, learned counsel for the appellant, relying on a judgment of my learned brother Salahuddin Mirza, J., in Nouroz Khan v. Zulakha, 1992 CLC 1930, has urged that such a default, as aforesaid, can result only in vacating the order of stay and the appellant's defence cannot be struck off under section 16(2) of the Ordinance. On the other hand, Mr. Nisarally, has referred me to Crescent Publicity Service v. S.M. Younus, 1980 SCMR 779 and Abdul Majeed v. Mushtaque Ahmad, PLD 1986 SC 123, each of which lays down that the High Court exercising appellate jurisdiction under Section 15 of the erstwhile West Pakistan Urban Rent Restriction Ordinance (VI of 1959) has the power, for the first time, to order deposit of rents under section 13(6) of such Ordinance and that default in compliance of such order can result in striking off the tenant's defence. Now, as seen, the cases of Crescent Publicity Service and Abdul Majeed above have a nexus with West Pakistan Ordinance VI of 1959, which is no longer applicable to the Province of Sindh. Under that statute itself precedent law took its own time to develop. To start with, there were cases notably Qahir Khan v. Abdullah Jan, PLD 1963 Quetta 21 and D. Lobo v.
4. Muhammad Zaki, PLD 1967 Lah. 194, opining that the penal clause in section 13(6) of the 1959 Ordinance could be invoked also at the appellate level, if the tenant committed default in compliance of deposit orders passed in the proceedings before the Controller notwithstanding that the default occurred when such proceedings stood concluded pending appeal and the appellate Court had passed no matching orders of its own. This line of authority was deviated from in Feroze Din Khan v. Muhammad Amin, PLD 1967 Lah. 966 and later overruled in Abdul Ghafoor v.
5. Ahmad Kunhi, PLD 1969 SC 424, the view finding favour being that an interim order of deposit under Section 13(6) Supra. Terminated with the eviction case before the Controller and the same order, for want of adherence during pendency of an appeal, could not attract the penalty of the tenant's defence being struck off. Then, or even, correspondingly, arose another controversy namely, whether the Appellate Authority under the 1959 legislation had the jurisdiction to pass an order of deposit of its own in terms of section 13(6) ibid. And, if no, whether noncompliance could be visited with an action to non-suit the tenant at the appellate level. A Division Bench of this Court in Roshan Din v. S.M. Badruddin, PLD 1969 Kar. 546, opined in the affirmative holding that the Appellate Authority, as inclusive of the High Court, could do either whereas another Division Bench, before which the case of Roshan Din was not cited, in Abdul Shakoor v. Kay Khusru, PLD 1970 Kar. 599, found to the contrary. The conflict of opinion was examined by Dorab Patel, J., in Abbu Qayum v.
6. Salahuddin, PLD 1974 Kar. 10 and he subscribed to the determination in Re: Roshan Din. Since have emerged in the field Muhammad Yousuf v. Rashida Zohra, 1979 CLC 444, Crescent Publicity Service v. S.M. Younus, 1980 SCMR 779 and Abdul Majeed v. Mushtque Ahmad, PLD 1986 SC 123 and in consequence the opinion of Noorul Arfin, J., who spoke for the Court in Re: Roshan Din ibid. Is now the consensus view.
7. ' However, as said, the foregoing are enunciations covering the late Ordinance of 1959 and we are concerned here with the Sindh Rented Premises Ordinance, 1979. It will be useful, therefore, to place the relevant provisions in the two statutes side by side and examine whether any different approach is warranted while construing Section 16 of the Sindh Rented Premises Ordinance, 1979.
8. Reproduced hereunder are the applicable clauses:--- W.P. Urban Rent Restriction Ordinance, 1959: Section 13.
9. "(6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case.
10. ' The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
11. Sindh Rented Premises Ordinance, 1979: Section 16.
12. "16. Arrears of rent.---(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.
(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf.
(3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller."
13. ' It will be noticed at once that none of the quoted provisions in either statute reserves any specific powers of deposit for the appellate Court, such powers, in terms, being those of the Controller.
14. However, as regards the Appellate Authority under the 1959 statute, due powers of an identical nature have been construed to vest in that Authority as well. As will presently be seen, no different construction has been placed before me regarding the appellate powers under the Sindh Statute of 1979. However, in the present context, there is a point of difference in the two legislations on the subject under discussion, which may also be noted. That lies in the fact that whereas the 1959 Ordinance makes it mandatory for a Controller to pass orders of deposit in all proceedings for eviction, section 16 of the 1979 Ordinance postulates that such orders can only be passed on due application of the landlord.
15. Reverting, as to the powers of the appellate Court under the 1979 statute Mr. Nissarally has placed reliance on Amtullbai Muhammad Ali v. Ibrahim Ghani, 1984 CLC 2793 and Abdul Sattar v. Ali Ahmed, 1985 CLC 25, the first reporting an enunciation of Ajmal Mian, J., as he then was, and the second as opinion of Ibadat Yar Khan, J., declaring that proceedings by way of appeal under Section 21 of the Sindh Rented Premises Ordinance, being in the nature of continuation of proceedings before the Controller, similar powers are exercisable at the level of such appeal and a direction to deposit rent under section 16(1) of the Ordinance can be issued even at the appellate level and non-compliance can be met by striking off the tenant's defence in the same manner as if the powers were being exercised at the level of the Controller. I respectfully concur in these views, adding only that the procedural powers of this Court are not merely those resulting upon continuation of proceedings at this level but such are powers of an already existing Court on which has been conferred an additional jurisdiction under the Rent Ordinance. In consequence, the rules of practice and procedure, already applicable to such Court, would continue to apply also in these proceedings, the rule being that where a pre-existing Court is conferred an additional jurisdiction, without saying more it continues to follow and apply the same principles of procedure as hitherto applicable to it: Hussain Bux v. Settlement Commissioner PLD 1970 SC 1, approving the House of Lords' decision in the National Telephone Co. v. Postmaster General, 1913 AC 546. The principle has been adhered to by the Supreme Court, subsequently, also in rent disputes.
16. ' This, however, does not conclude the question of law, which is posed here. Frequently enough, upon admission of an appeal under section 21 of the Sindh Rented Premises Ordinance, co- extensive with grant of stay, an order of deposit is made and such usually comes to transpire without any application of landlord-respondent under section 16(1) of the Ordinance and indeed without reference to that provision. In such cases, subject to the actual terms of the order, the directive to deposit can only be a condition of stay. Noncompliance in situations of that character should normally result in merely vacating the stay, its condition remaining unfulfilled. There is a contrary observation as to this of Ibadat Yar Khan, J., in the case of Abdul Sattar ibid. But the opinion of Salahuddin Mirza, J., on the point in Re: Nauroz Khan is more pertinent to the construction of the 1979 legislation and to this I respectfully subscribe. Such view, on general principles, is also supported by the ratio in Manzoor Hussain v. Nawazish Nazir Hussain, PLD 1976 Lah. 637, a case under the 1959 Ordinance, where, as said the requirement even of making application for deposit at the instance of the landlord is not a prerequisite.
17. This brings up the further question whether, in the instant case, the power of the Court was exercised in terms of the Section 21 alone or under that section as read with section 16(1) of the Sindh Rented Premises Ordinance. It is no doubt correct that, at the outset, when this appeal was admitted, an order of stay, conditional upon deposit, was passed in pursuance of section 21 aforesaid but that order remained ineffective in that the appellant-tenant never complied with it. It is another matter that no formal order recalling the ad interim stay granted on the abovementioned date was recorded by the Court. The fact, however, remains that the respondent- landlady was later compelled to file a separate application under section 16(1) of the Ordinance whereupon, as said earlier, an order of deposit in terms was passed on 1-12-1992 and default in compliance thereof resulted, in the submission of due application under section 10(2) ibid. On 15-3- 1993.
18. ' I have, therefore, on facts no hesitation in saying that for our purposes here it is not merely an order of stay under section 21 of the Ordinance, which is required to be vacated or otherwise dealt with for non-observance of its conditionality's. As said, it is a distinct order of deposit under section 16(1) of the Ordinance, which, in this appeal, was obtained duly by the landlady herself on 1-12-1992 and breach whereof is sought to be visited with the penalty in terms of the application under section 16(2). Non-compliance with an order of 146 reel deposit under section 16(1) of the Sindh Rented Premises Ordinance is to be met with the defence of the tenant being struck off. At the appellate stage, the prayer of an appellant-tenant can be such defence. If breach is established, by way of defence being struck off, an appeal can, commensurate with the requirement, be dismissed or allowed, as relevant.
19. ' The foregoing being the position on the factual plane and default being an admitted fact, both the above applications stand disposed of in that the order of deposit already stands passed and the appellant's defence in consequence of non-compliance is struck off, culminating in his appeal being dismissed.