JUDGMENT RASHEED A. RAZVI, J. - This suit is filed by the plaintiffs for recovery of Rs. 8,26,000/- from the defendants. The case of plaintiffs is that they are joint owners of a double storey bungalow situated on Plot No. A-15 A/l, Sunset Boulevard, Phase-II, Pakistan Defence Housing Authority, Karachi, hereinafter mentioned as Bungalow in question. According to the contents of plaint,^defendant No. 1 was the tenant of the said bungalow vide tenancy agreement dated 17.9.1986 at the rate of Rs. 18,000/- per month payable in advance. Copy of the tenancy agreement has been filed as Annexure P-1 with the plaint. The defendant No. 1 was running a private school in the said bungalow. Defendants No. 2 and 3 who are maternal uncle of the defendant. No. 1, were also involved in the tenancy of the said bungalow. It is further averred in the plaint that the defendant No. 1 paid rents to the plaintiff till October, 1986 and that on 24.10.1986 the plaintiffs were informed that the defendant Nos, 2 and 3 will pay the rents thereafter to the plaintiffs. In such circumstances, a fresh tenancy agreement was executed between the plaintiffs and defendant Nos. 2 and 3 which has been filed with plaint as Annexures P-3 and P-4 respectively.
2. It is (he case of the plaintiffs that the defendants paid rent till November. 1986 and then out of India fides filed a civil suit against the plaintiffs for declaration and injunction which was subsequently dismissed, In these circumstances, the plaintiffs filed a rent case for eviction of all the defendants under section 17 of the Cantonment Rent Restriction Act before the Rent Controller.
Cantonment Board, Clifton. Karachi. This case was numbered as 31/87. On 25.10.1987 learned Rent Controller passed a tentative rent order against the defendants directing them to deposit arrears of rent amounting to Rs. 1, 57, 500/- and future monthly rent .At the rate of Rs. 18.000/-. Since the defendants failed to comply the said rent order of the Rent Controller, as such on 13.12.1987 their defence was struck out.
3. Being aggrieved with the above said order of Rent Controller, Clifton, Karachi, the defendant No. 1 preferred a first rent appeal before this Court which was numbered as FRA No. 84/88. Defendant Nos. 2 and 3 preferred another first rent appeal which was numbered as FRA No. 156/89. In both these appeals again on 22.1.1989, a consolidated rent order was passed by High Court directing the defendants to pay the arrears as well as future monthly rents. The defendants (appellants in rent appeals) failed to comply the said order of the High Court and consequently both the rent appeals were dismissed in default on 24.2.1991. In these circumstances, the plaintiffs have brought this suit for recovery of arrears of rents against the defendants. Summons of this suit were duly served on the defendants who filed their respective written statements through their advocates. On 31.10.1993, the learned Counsel for the plaintiffs pointed out to this Court that the copies of written statements filed by tire defendants were not supplied to him. Consequently, Counsel for the defendants were granted one week's time to provide copies of written statements to the advocate for the plaintiffs.
The defendants failed to supply copies of the written statements to the plaintiff till 28.11.1993 when their defence was struck off by this Court and it was ordered that the case will proceed ex parte.
Since then till 23.5.1995 (nearly for 18 months) the defendants made no efforts to get their defence restored. The plaint is sworn on solemn affirmation by one of the plaintiffs, In view of the order dated 28.11.1993, there is no defence therefore, the contents of plaints have gone unrebutted unchallenged. Besides, there are orders of High Court in rent appeals which further support contents of the plaint.
4. On 27.4.1995 after hearing Mr. Abdul Rashid and Mr. Riaz Ahmed, Advocates, the above case was adjourned for announcement of judgment but while the judgment was being dictated, it was transpired that the tentative rent order was passed on 22.1.1989 by this Court in first rent appeal No. 156/88 and the physical possession of the house in question was obtained by the plaintiff on 27.4.1989 and this suit was filed on 10.1.1993 after a delay of nearly four years. Fresh notices were ordered to be issued to the parties to re-argue the case on the question as to how this suit is maintainable in view of Article 110 of the Limitation Act? In response to the same, Mr. Abdul Rashid has again appeared and addressed this Court at length on the factual as well as legal ground.
5. Mr. A. Rashid has vehemently urged that the time for filing the suit will run from the date when the rent proceedings were final terminated between the parties. That the word "due" as used in the Article 110 of the Limitation Act means that the time will start running when the rent legally becomes due against the defendant. He has relied upon the case of Attaullah Malik v. Rasheed & another XV LTD 1972 Kar. 273). For/ proper appreciation of the contention raised by Mr. A. Rashid, it will be advantageous to re-produce order dated 22.1.1989 passed by a learned single Judge of this Court in the First Rent Appeal bearing No. 156/88 and F.R.A. No. 84/84:- "It is an admitted position that the rent has been paid to respondents/landladies up to October, 1986. It is also admitted by the parties that appellants Younus Das and Gulzar Das were in possession of the premises in dispute since November, 1986 to August, 1987, with the consent of the landladies and therefore, for this period ten months they are directed to deposit Rs. 1,80,000/- towards arrears of rent. As far as appellant Mrs. Particia was concerned, she is admittedly in possession of the premises in dispute since September, 1987 and, therefore, she was liable to pay/deposit Rs. 2,88,000/- up to 31st December, 1988. It is also admitted that she had deposited Rs.
1,20,000/- as security with the landladies and, therefore, she is liable to deposit Rs. 1,68,000/- (Ruppes one lac sixty eight thousand) towards the arrears of rent.
322 C.C. Key Law Reports 1997 I. Therefore, direct that the appellants Younus Das and Gulzar Das to deposit Rs. 1, 80,000/- towards the arrears of rent within two months........ While the appellant Mrs. Paricia is directed to deposit Rs.
1,68.000/- towards the arrears of rent within two months. She is further directed to deposit future rent from January, 1989, by Feb.. 1989, and thereafter regularly."
6. It is the case of the plaintiffs that the defendants instead of complying the above quoted order of this Court, they secretly shifted the entire movables for the house in question and abandoned the same. As property was lying vacant and abandoned: therefore, the Defence Housing Authority took over the possession of the said house. On 27.4.1989 the plaintiffs obtained physical possession of the house in question from the Defence Housing Authority. It is further averred by the plaintiffs in then- plaint that the Fist Rent Appeal bearing No 84/88 and FRA No. 156/88 were dismissed on 24.2.1991 for non-prosecution. According to the learned Counsel for the plaintiffs, the time to recover rent from the defendants will start running from this date as the tentative rent order passed by this Court on 22.1.1989 become final on this date.
7. It is settled law that the rent orders passed by Rent Controllers during pendency of the rent cases or by the Appellate court during preliminary hearings under Section I6 of the S.R.P.O., 1979 are always tentative or provisional in nature. These tentative rent orders become final at the termination of the proceedings on merits, when there is final determination or rights by the Rent Controller or Appellate Court. On the proposition that the rent orders are tentative in nature and not final, reference may he made to a case of Ibrahim V. Muhammad Hussai. Il (PLD 1975 SC 457), Abdul Ghafoor u. Ahmed Khundi (PLD 1969 SC 424) and the case of Mushtaq Hussain v. Muhammed Shafi (1979 SCMR 486) > III one of the recent cases, Supreme Court of Pakistan held that an order under Section 18 Cl) of the S.R.P.O., 1979 is always tentative and approximate and that the final determination is possible under Section 16(3) of the Ordinance, 1979. See the case of Mrs. Zarina V.
Ahmed All Agha (PLD 1988 SC 190). N ow the question remains to be answered is whether right to sue or recover arrears of rent will remain suspended during find determination of the rents before the Court of Rent Controller. More or less, such question came up before the learned Division Bench of this Court in the case of Attaullah Malik V. Rashid & another (PLD 1972 Karachi 273) wherein the term "when the arrears become due" as mentioned in Article 110 of the Limitation Act, for consideration. In this reported case. Mr. Muhammad Haleem. J. (as he then was) held as follows.
Mr. A. Rashid has vehemently relied upon this portion of the reported case.
The word 'due' has the connotation of something legally demandable and as was held by the ^lordships of the Supreme Court in Ashfaqur Rahman v. Ch. Mohammed Afzal (PLD 1968 SC 820) "the word 'due' would carry the connotation of due in law or recoverable in an action at law."
Consequently, a suit for the recovery of rent can. Only be filed when the rent becomes legally recoverable and that is in point of time when the cause of action to recover the areas accrues................................ "6. Our conclusion from what has been discussed above is that the word 'due' in Article 110 of the Limitation Act means the date on which the cause of action arises for filing a suit and in this context the rent for the entire period of 10 years and 10 months , became due on 19th November, 1990 when the Custodian upheld the order of the Additional -Custodian (Judicial), and the respondents were in law entitled to sue for the recovery of the' arrears of rent. The suit was filed within 3 years of that date and therefore it was within time under Article 110 Of the Limitation Act."
8. Facts of the reported case relied upon by the learned Counsel for the plaintiffs (PLD 1972 Karachi 273) are quite different to the facts of the present case. In the reported case, the property purchased was artefactual property and under section I6 of the Pakistan (Administration of Evacuees Property) Ordinance, 1949, it was mandatory that the sale transaction should be confirmed by the Custodian. It was under these circumstances that the rents of the property becomes due after confirmation of the sale and determination of the rents. But in the instant case when the relationship of landlord and the tenant is admitted and the premises is governed by the provisions of Sindh Rented Premises Ordinance, 1979, the term "when the arrears become due" is to be interpreted from a different angle. Article 110 of the Limitation Act has been subject matter of interpretation in other reported matters which I would like to discuss hereinafter.
9. The first case which is close to the facts of this case is the case of M/s. CanaI Patrol Service, 8 Larking v. M/s. Pakistan Burmah shell Oil Storage and Distillation Co. Ltd., Karachi (PLD 1982 Karachi 121 >. In this reported case, plaintiff filed a suit for recovery of certain amount against the defendants for damages, rental of site, arrears of rent and unpaid commission, one of the issues involved in the reported suit questioned the amount of rent and commission outstanding against the defendant. After considering the entire evidence of the case, it was held by Mr. Saeeduzzaman Siddiqui, J. (as he then was) that the part of the claim for recovery of arrears of rent was time- barred as it was filed after a lapse of three years. Following is the relevant portion of two reported case:- "...... It is, there FIR-e, rightly contended by the counsel for defendant that a major part of the claim of plaintiff for arrears of rent is clearly beyond time. The learned counsel for the plaintiff was unable to point out any acknowledgement by the defendant after 1965 whereby the defendant admitted its liability to pay this amount. On the contrary the plaintiff themselves closed this issue vide its letter date of 25.2.1965 (Exh. P/24). The suit was filed on 7.1.1971 and as such the plaintiff can only maintain its claim for arrears of rent for the period from 1.1.1968 to 31.7.1969. The arrears of rent prior to 1.1.1968 had become time-barred on the date of institutional the suit..... "
10. In another case reported as Anwarul Haq v. Messrs Standard Eastern Inc. (1988 MLD 1170), it was held by Mr. Amal Mian, J. (as he then was) that a suit for recovery of arrears of rent is maintainable, if filed there the years after (rhe rent became due. In this reported case, it was a suit filed by the plaintiff for recovery of Rs. 65,000/- as arrears of rents from 1.1.1952 to 30.11.1962 which was filed on 27.5.1969. Many issues were framed including issue of limitation as well as issue on the question of legal rights of the plaintiff to claim the rents. Case of Attaullah Malik (PLD 1972 Karachi 273) was also considered. It was held by this Court as follows:- "...... It is, therefore, evident that the suit is barred by limitation if -I were to compute the period even from the last date of the period for - which the arrears of rent is claimed. I may observe that Mr. Nasim Farooqi, learned counsel for the defendant has rightly pointed out that when a plaintiff claims rent month to month than the cause of action will arise for the recovery of rent for each 1 month when the rent becomes due and payable for the month concerned."
11. In the case of Anwarul Haq, the effect of acknowledgement for the purpose of limitation as provided in section 19 of the Limitation Act was also considered and it was held that withdrawal of the suit does not amount to acknowledgement. In the present case, there is no. Acknowledgement of outstanding arrears by any of the defendants. The rent appeals were dismissed due to default in appearance of the counsel for the appellant. There was no final determination of the rate and period or rents. Therefore, the plaintiff has no basis to say that there was an acknowledgement and that the time will run from the date of last acknowledgement. It is pertinent to note that section 9 of the Limitation Act, 1908, provides that once the time has begun to run then no subsequent disability or inability to sue will soap it.
12. The term "rent" due has been discussed in several case laws. The term "all the rent due" in reference to the section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 came up for consideration before the Honourable Supreme Court of Pakistan in the case of a Sulfaquinoxaline Rehman u. Muhammad Afzal (PLD 1968 SC 230) wherein it was held that a tenant cannot be deprived to take a legal defence under the general law that if the rents unpaid cannot be recovered in view of the law of limitation through a Civil Court, then he cannot be made liable for eviction, following is the relevant portion of this reported judgment: "..... Though the word "lawfully" is not added to "all the rent due"
In section 13(6) yet the effect remains the same. When rent is sought to be recovered by a legal process be it before a Court or a Tribunal the word 'due' would cany the connotation of "due" in law or recordable in an action at law."
13. In another case, this Court has also considered the word "rent due" and after following the law laid down, by the Supreme Court in the case of Ashfaq-ur-Rahman, it was held by Mr. Saleem Akhtar, J. (as he then was) that the expression "rent due" should mean the rent which has remained unpaid and is legally recoverable under the law. It was further held by the learned Judge that "It is well-settled that a landlord cannot recover the rent beyond a period of three years." (For reference please see Mst. Hashmi Begum 'v. Mst. Alya Zohra Begum, 1985 MtD 1514). The same proposition of law was also held in the case of Muhammad Ahmed u. Mrs. Qamar Anwar Sheikh (1980 CLC 664) by Mr Zafar Hussain
14. In the present case, the plaintiff is claiming rent for the period November, 1986 till March, 1989.
The landlord/plaintiff received the physical possession of the premises on 27.4.1989. The last rent outstanding was for the month of March, 1989. The rent for the month of November, 1986 became due on the lst day of December, 1986. According to section 17 l2)
15. Suit is dismissed with no order as to costs.