1. ' This appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter referred as the Ordinance) is directed against eviction order dated 1-11-1994 passed by learned Controller, Karachi-South directing eviction of the appellant in Rent Case No, 3418 of 1984, striking off his defence for noncompliance with the order dated 22-9-1987 passed under section 16 (1) of the Ordinance directing the deposit of arrears of rent and future monthly rent in respect of the rented premises.
2. ' Appellant is the tenant of the respondent Trust in respect of a shop situated on Dr. Daudopta Road, Saddar, Karachi for the last about 40 years at a monthly rent of Rs,100.
3. ' Respondent trust sought his eviction from the demised premises on the ground that he had changed the nature and status of business from individual tenancy to partnership firm without the consent of the Trust which would constitute unauthorised subletting.
4. ' In his written statement appellant admitted the tenancy but he denied the allegation relating to subletting.
5. ' On an application under section 16 (1) of the. Ordinance moved by the respondent, after notice to appellant and taking into consideration his objections, learned Controller by his order dated 22-9- 1987 directed the deposit of arrears of rent from 1-1-1985 to 30-9-1987 amounting to Rs,3,300 within one month and to deposit future monthly rent from October, 1987 at Rs,100 per month on or before 10th of each successive month. By the same order learned Controller observed that the amount of rent deposited by the appellant in M.R.C. No,967 of 1983 shall be adjusted towards the arrears of rent and treated as deposit in this case. It appears that the appellant had already deposited the arrears of rent in the Miscellaneous Rent Case and no rent was due against him but even after passing of the order under section 16(1) of the Ordinance he continued depositing rent in the said case instead of depositing it in Rent Case No,3418 of 1984.
6. ' Respondent accordingly filed an application under section 16 (2) of the Ordinance seeking to strike off the defence of the appellant owing to his default in payment of rent. A notice of this application was issued to the appellant who filed his objection stating that there was no default on his part; that he had already deposited the rent in Miscellaneous Rent Case; that on the date of order i,e, 22-9-1987 respondent had mala fide contended that he was in arrears of rent w,e,f, 1-1- 1985. He added that he continued to deposit rent in the said case for the period ending 30-11-1994 in advance.
7. ' Upon hearing learned counsel for the parties and on consideration of reports of the Nazir, learped Controller by the impugned order held that the .Appellant had failed to comply with rent order passed under section 16 (1) of the Ordinance and thereby committed a wilful default. Accordingly his defence was struck off and his eviction ordered.
8. ' At the stage of Katcha Peshi this appeal was dismissed for non-prosecution while learned counsel for appellant moved an application for readmission of the appeal, Mr. Abdul Aziz Khan filed an application on behalf of the respondent with prayer for audience before re-admission of the F.RA.
9. After hearing, appeal was readmitted and Mr. Abdul Aziz Khan permitted to advance his arguments at the stage of Katcha Peshi.
10. ' Mr. N.K. Jatoi, learned counsel for the appellant vehemently contended that learned Controller was not justified in passing an order for deposit of rent in a case in which no default was alleged against the appellant. He further submitted that there being no arrears of rent learned Controller acted without jurisdiction in passing an order for deposit of rent under section 16 (1) of the Ordinance. It is true that the ejectment of the appellant was not sought on the ground of default but plain reading of section 16 (1) of the Ordinance would indicate that in each case for eviction of a tenant, the Controller on an application made by the landlord and after a summary inquiry, as deemed fit, is obliged to determine the arrears of rent due and direct the tenant to deposit the same within such period as he may fix in that behalf and further direct the deposit of monthly rent regularly on or before the 10th of every month until final disposal of the case. I am, therefore, of the considered view that learned Controller acted within the scope of his authority when he proceeded to pass an order in relation to deposit of rent due as well as future monthly rent. The only requirement for passing such order is that he shall hold a summary inquiry as deemed fit on receipt of an application from the landlord and would not act suo motu. In the present case respondent had moved an application under this provision of law seeking a direction for deposit of rent w,e,f, 1-1-1985 to 31-1-1986. On service of notice appellant in his objections had stated that the respondent having refused to accept the monthly rent w,e,f, January, 1983 he had started depositing monthly rent with the Nazir of the Court in Miscellaneous Rent Case No,967 of 1993. He further stated that no rent was outstanding against him as he had deposited rent up to date.
11. Before passing the rent order learned Controller had heard both the parties and passed a qualified order allowing adjustment of the rent deposited in miscellaneous Rent Case towards the arrears of rent tantatively deterniined in his order. It would appear that at the time of passing this order learned Controller had before him only application for deposit of rent made by the respondent and objections filed by the appellant without the rent account and the receipts for payment or the report of the Nazir. It was contended that in order to determine whether the appellant was in arrears of rent, learned Controller ought to have sent for a report from the Nazir with regard to deposit of rent in Miscellaneous Rent Case, which was not called for. Be that as it may, by not calling for a report from the Nazir, learned Controller neither acted illegally nor without jurisdiction.
12. By allowing adjustment of the amount of rent deposited in Miscellaneous Rent Case towards the arrears and treating the said deposit as deposit in this case learned Controller acted in a just, proper and fair manner to which no exception could possibly. Be taken.
13. ' It was next contended on behalf of the appellant that by continuing to deposit rent in miscellaneous rent case instead of depositing rent in the ejectment application, appellant did not commit any default and noncompliance, if any, was technical in nature which could not be visited with penal consequences. Learned counsel referred to the judgment in the case of Major (Rtd.)
14. A.S.K. Samad v. Lt.-Col. (Rtd.) Hussain and another (1987 SCM R 1013) in which the view taken was that since rent was being regularly deposited by tenant in earlier proceedings and amount was being withdrawn by wife of landlord who was also a co-applicant in subsequent ejectment proceedings, tenant could not be condemned for having been guilty of disobedience of order of Rent Controller so as to entail penalty of his eviction from demised premises. Default in deposit of rent, if any, was technical in nature, the Supreme Court observed. Appeal in this case was decided on 30-1-1984 whereas in a subsequent appeal decided on 23-4-1985 by the Supreme Court in the case of Muhammad Bashir v. Mst. Mubina Begum (1988 SCM R 427) in which the tenant continued to deposit rent in a wrong name in the Miscellaneous Rent Case filed by him even after passing of rent order, by the Rent Controller, it was held that failure to comply with specific direction of Rent Controller to deposit rent entailed liability of eviction from the demised premises under section 16
(2) of the Ordinance. It would appear that this case is distinguishable on facts inasmuch as tenant had insisted on depositing rent in the name of husband of the landlady who was not the landlord even after specific direction by the Controller to deposit arrears as well as future rent in the rent case filed against him and allowing him to withdraw rent already deposited in a wrong name.
15. ' Learned counsel for the respondent, however, referred to latest judgment of the Supreme Court in the case of Hussain Trading Company, Karachi v. M/s. Jalal Brothers (Pvt.) Ltd., Karachi (1994 SCM R 159). In this case defence of the tenant was struck off for non-compliance of order of Rent Controller. High Court on appeal not only found that tenant had deliberately failed to deposit rent in ejectment application in spite of clear direction of Rent Controller, but it also found that he had also committed default in depositing rent according to tentative rent order by short depositing the rent. The view taken by the High Court was upheld by the Supreme Court as it did not suffer from any infirmity. Facts of this case are identical to the facts of the case in hand and by reason of Article 189 of the Constitution judgment of the Supreme Court is binding on this Court. There is thus no illegality and impropriety in the order passed by the learned Rent Controller striking off the defence of the appellant which is not open to an exception.
16. ' There is, however, another aspect of the matter. Learned counsel for the respondent had filed a summary in respect of deposit of rent by the appellant in the Miscellaneous Rent case before passing of rent order as well as thereafter. Learned counsel has referred to the deposits made by the appellant on 29-1-1989, 1-2-1990, 14-1-1991 and 15-11-1992 which would clearly show that rent for the month of December on each occasion had been deposited beyond the date fixed by the Controller as well as the statute. Appellant has failed to account for this default and the learned counsel had no alternative except to say that the learned Controller having not considered this default in the payment of future monthly rent, this Court could not consider the same and only course left to the appellate authority under the Ordinance is to remand the case to the Controller for a fresh decision on this point. I am not at all impressed by this argument inasmuch as subsection (3) of section 21 of the Ordinance empowers this Court sitting as appellate authority to make further inquiry for a just decision of the appeal. Since the rent account and the dates of deposit of rent and the period for which the rent was deposited are available on the record of the lower Court, in all fairness this Court can take into consideration these circumstances which are further supported by the various reports of the Nazir and not controverted by the appellant.
17. Appellant having committed wilful default in the deposit of future monthly rent cannot be allowed to urge that since learned Controller had not taken into consideration this default on his part, this Court could not consider the same for decision of the appeal.
18. ' Remand of the case determining default in deposit of future monthly rent in this case would neither be just nor equitable as it would only add to the agony of the respondent Trust who has been litigating against the appellant for the last more than 10 years.
19. ' In the circumstances, I find no merit in this appeal which is dismissed in limine but in view of commercial nature of the business and old tenancy of the appellant, I would allow him 120 days to vacate the shop premises failing which a writ of possession shall issue against him without any notice.