1. ' Appellants Muhammad Asghar and Muhammad Saddique have file'd R.SA. No, 862/88 against an order dated 16-7-1988 passed by I-Senior Civil Judge and Rent Controlter, Karachi South in Rent Case No, 1073/87 and F.RA. No, 538/91 against an order dated 15-8-1991 by IVth Senior Civil Judge and Rent Controller, Karachi South in Rent Case No, 966/87. Both the appeals would be disposed of under this order.
2. ' Rent Application No, 966/87 and No, 1073/87 were filed by respondent Khola Din for eviction of the appellants from a Godown No, AK7B-12S-5, situated near Crown Cinema, Mauripur Road, Karachi.
3. ' Admittedly godown in litigation is in possession of the appellants who got possession of the same from the respondent in pursuance of an agreement of lease dated 2-1-1979. Respondent claimed rent of the godown to be Rs,700 p.m. And the appellants to have paid rent at said rate to the respondent for the period ending February, 1984.
4. ' In Rent Case No, 966/87, eviction of the appellants was prayed on the grounds of default in payment of rent since 1-3-1994 and for subletting of the premises to New Jubilee Transport. In Rent Case No, 1079/87 the only ground for eviction of the appellants was that they had defaulted in payment of rent in August, 1985 to July, 1986. In both the rent cases the appellants challenged maintainability of the rent application and jurisdiction of the Rent Controller. They also pleaded bar of Sindh Rented Premises Ordinance (hereafter mentioned as the Ordinance), C.P.C. And General Clauses Act. Pleas of waiver, acquiescence and estoppel were also taken and it was added that the property in litigation was standing in K.P.T. Land. Prior to this there was another Rent Application No, 2334/84 between the parties.
5. ' In Rent Case No, 966/87 the Rent Controller under the impugned order dated 15-8-1991 ordered eviction of the appellants on the ground of default after discussing the evidence that had come on the record and after formulating the issues. In Rent Case No, 1073/87 the Rent Controller under the impugned order dated 16-7-1988 ordered eviction of the appellants from the premises in litigation after holding that relationship of landlord and tenant existed between the parties and that the appellants had committed wilful default in payment of rent. This order was assailed in F.RA. No, 862/88.
6. ' In F.RA. No, 862/88, the respondent moved an application (CMA 219/89 under section 16(1) of the Ordinance, for deposit of monthly rent and arrears of rent. On said application learned Single Judge of this Court ordered on 19-4-1989 that the appellants shall deposit future rent at the rate of Rs,700 p.m. And they shall deposit rent from time of filing of the appeal within one month and future monthly rent be deposited on or before 10th of every succeeding month. Subsequently the respondent moved an application (CMA 212/92) under section 16(2) of the Ordinance for striking off defence of the appellants on the ground that the appellants had defaulted in deposit of rent and had not complied with the order dated 19-4-1989 passed under section 16(2) of the Ordinance. The application (CMA 212/92) was accepted on 16-8-1992 when defence of the appellants was struck off and they were directed to vacate possession of the premises in litigation within one month. The appellants moved an application (CMA 946/92) for review of the order dated 16-8-1992.
7. Application (CMA 946/92) was re-called and application (CMA 212/92) moved under section 16(2) of the Ordinance was required to be re-heard and decided. There were also arguments by learned counsel on the merits in both the appeals.
8. ' Mr. Abdul Sattar Usman Memon, learned counsel for the appellants argued that the order passed under section 16(2) of the Ordinance was coram non judice because the Rent Controller had no jurisdiction in the matter as the property involved in the litigation was owned by K.P.T which was exempted from operation of the Ordinance. In this respect learned counsel for the appellants referred to a Notification No, VIII(3) SOJ/75 dated 15-3-1981 issued by the Government of Sindh Home Department under subsection (2) of section 3 of the Ordinance. Under the said Notification the Government of Sindh exempted the premises belonging to Karachi Port Trust from the application of the Ordinance. Learned counsel for the appellants further argued that the agreement dated 2-1-1979 was signed by the appellants on the misrepresentation of the respondent that he was sole and absolute owner of the premises in litigation. It was added that the appellants were not bound by terms of the said agreement as it was result of fraud played upon them when they had signed the same. The respondent was said to have admitted in his cross- examination that the disputed property belonged to KPT. In support learned counsel cited the cases of:
(i) Mrs. B.S. Khan v. Pakistan State Oil Co. Limited (1989 SCMR 75).
(ii) Pakistan State Oil Company Limited v. Khaliq Raza Khan (1994 CLC 1866).
(iii) Malik Sher Mast Khan v. Muhammad Diyar Khan and others (1988 SCMR 1186).
(iv) Hazur Bux v. Jethanand and others (1988 MLD 2018).
(v) Ghulam Hussain v. Abdur Rehman and others (PLD 1982 Lah. 519).
9. ' Mr. Azizul Hassan, learned counsel for the respondent strenuously argued that since the appellants had failed to comply with the order dated 19-4-1989 passed under section 16(1) of the Ordinance, hence their defence was to be struck off under section 16(2) of the Ordinance. It was further argued that the appellants had failed to deposit any of the rent after 31-5-1989. In support learned counsel for the respondent cited the cases of:
(i) Crescent Publicity Service v. S.M. Younus and others (1980 SCMR 779).
(ii) S.M. Younus and others v. M/s. Crescent Publicity Service (1980 CLC 441).
(iii) Abdul Qayoom Ansari v. Salahuddin Qureshi (PLD 1974 Kar. 10).
(iv) Nazir Ahmed v. Holaram (1985 CLC 41).
(v) M/s. Asniat Agencies v. M/s. Shaikh Yousufally Sons Limited (1983 CLC 2088).
(vi) Muhammad Iqbal v. Mrs. Syed Habiba Rizvi (PLD 1994 Kar. 227).
(vii) Mushtaq Hussain v. Muhammad Shall (1979 SCMR 496).
(viii) Mst. Akhtar Jehan Begun' and others v. Muhammad Azam Khan (PLD 1983 SC 1).
(ix) M. Nazir v. S. Shaukat Ali (1982 SCMR 985).
(x) Muhammad Yousaf and others v. Mst. Rashida Zohra (1977 CLC 444).
(xi) Roshan Din v. S.M. Badruddin (PLD 1969 Kar. 546).
10. ' In (ii) above a learned Single Judge of this Court took view that in case an order of deposit of rent was made by the High Court in second appeal under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, then for non-compliance of such an order defence can be struck off. Said judgment was challenged in the Supreme Court of Pakistan which under the judgment mentioned at (i) above, maintained the same and held that High Court was competent to strike off defence of the tenant on his failure to comply with High Court order in second appeal to deposit rent. Similar view was also taken in (iii), (viii) and in (ix) above. In (iv) above the view taken was that the provisions of section 16(2) of the Ordinance are mandatory and the default must result in summary disposal of case without taking any other proceedings. In (v) above the tenant conduct exhibited gross negligence in compliance of the order under section 16(1) of the Ordinance and cause for condonation of default was not impressive and it did not appear to be correct and order of the Rent Controller directing eviction of the tenant on the ground of default in payment of rent and for non-compliance of order for deposit of tentative rent was not maintained. In (vi) above the view taken was that directions to deposit rent can be issued at the appellate stage and non- compliance to deposit rent could be met by striking off tenant's defence. In (vii) above the Supreme Court of Pakistan observed that obedience of an order passed under section 13(6) of West Pakistan Urban Rent Restriction. Ordinance, cannot be shelved on the ground of a regular finding be given about the actual amount due and that compliance of the direction under section 13(6) of said Ordinance is a condition precedent for requiring the Rent Controller for examining the bona fide or correctness of the defence pleas.
11. ' The most important point in this case is about competency of the Rent Controller to entertain the rent application in respect of the property alleged to be belonging to KPT. It is pertinent to note that the respondent during his cross-examination in Rent Case No, 966/87 admitted that plot of the property in litigation belongs to KPT. He admitted that he had no title documents of said property but he claimed to be possessing documents about his possession. Even in Rent Case No, 1073/86 the respondent stated in grounds that he had no title documents of the premises in litigation but he claimed to have raised the structure. He admitted that the construction raised over the disputed plot was without obtaining permission from K.M.C. Or any other department. He admitted that twice the premises were demolished by K.M.C., but he re-occupied the premises. He also admitted that the premises are situated on K.P.T. Land and it was within the boundary of K.P.T. In view of clear admission by the respondent there is no difficulty in considering the point whether the Rent Controller had jurisdiction in the matter.
12. According to subsection (2) of section 3 of the Ordinance, the Government of Sindh may by notification exclude any class of premises, or all premises in any area from operation of all or any of the provisions of this Ordinance. In pursuance of such provisions the Government of Sindh had issued a Gazette Notification dated 15-3-1981 by which it has exempted the premises belonging to Karachi Port Trust. Said Gazette Notification was considered in the case of Mrs. B.S. Khan v. Pakistan State Oil Co. Ltd. (1989 SCMR 75) where it was held that it is property itself and not any particular relationship concerning it which was exempted from purview of the Ordinance. In the case of Pakistan State Oil Company v. Khaliq. Raza Khan (1994 CLC 1866) the view taken was that -where the demised premises were built by the landlord on the property owned by the Federal Government, the Ordinance would not apply to such land and the ejectment application filed in respect of such property was not maintainable and the Rent Controller had no jurisdiction to entertain the same. In this context it was observed in same case that the legislature did not intend to exempt the relationship of landlord and tenant, but intended to confer on the premises owned by Government in immunity from operation of Sindh Rented Premises Ordinance. In view of this discussion it is clear that the Rent Controller had no jurisdiction to entertain the Rent applications filed by the respondents.
13. ' Consequently I have no alternative but to accept both these appeals and set aside the impugned orders and order disposal of the appeals.