' This First Rent Appeal is directed against the order 23-1-1993 passed by the Vth Senior Civil Judge and Rent Controller, Karachi-East, whereby the defence of the appellant was struck off and he was directed to hand over the vacant possession of the rented premises to the respondent within a period of 3 months from the date of the order.
2. The facts leading to the filing of this appeal are that Mst. Surraya Sultana is the owner/landlady of the premises in dispute viz. Construction on Plot No, D-72, Block-7, Gulshan-e-Iqbal, Karachi, which were rented out by an agreement dated 15-6-1988 to the appellant Dr. Shafiq Ahmed, executed and signed'by the respondent Mst. Surraya Sultana, and the appellant, personally. The monthly rent was settled to be Rs,6,500, which was payable by 5th day of each month in advance.
Mst. Surraya filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, seeking ejectment order against the appellant/tenant Dr. Shafiq Ahmed in the Court of II Senior Civil Judge and Rent Controller, Karachi-East on 7-11-1990. The grounds for ejectment were that the tenant had committed default in payment of the rent and that he was in arrears to the tune of Rs,107,905 at the time of filing of the Rent Application. The appellant/tenant contested this application and filed his written-statement on 2-2-1991. In his written statement, the tenancy was admitted. The rate of monthly rent was also not disputed but the appellant/tenant disputed that he had not committed any default in payment of the rent. It was, however, pleaded that in fact the agreement dated 15-6-1988 produced by the landlady was not the real agreement and that the agreement in reality was another one, executed by one Muhammad Sulleman acting as an attorney of Mst. Surraya Sultana, on the same date of execution, viz. 15-6-1988. This agreement showed that sum of Rs,2,50,0C 3 was paid by the tenant to the landlady as an advance, to be treated as fixed deposit, refundable on vacation of premises. The appellant also claimed that he had incurred expenses on construction of two servant quarters within the premises in dispute with the permission of the landlady. The appellant also claimed that he had paid a sum of Rs,23,405 to Muhammad Sulleman, the alleged attorney of landlady against the receipt. Similarly many other sums were paid by him to Muhammad Sulleman, the alleged attorney of the landlady, against receipts. A sum of Rs,19,500 was claimed to have been deposited in the bank account of the husband of the landlady. Thus the appellant claimed to have paid uptodate rent to the attorney of the landlady. The landlady by her affidavit and other pleadings denied that she had appointed Muhammad Sulleman as her attorney. She said that she did not know any Muhammad Sulleman, and that the document was a piece of forgery and the receipts executed by said Muhammad Sulleman were not binding on her. An application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed by the landlady. In the said application, the landlady claimed the following arrears and requested the Court to pass an order for deposit of the same in Court:--
(a) Amount of balance of rent for the months of December, 1988 (after adjusting Rs,2,595) Rs,3 905
(b) Amount of rent for 22 months from January, 1989 to 31st October 1990 (both months inclusive) .... Rs .1,43,000 Total:- Rs,1,46,905 ' In this application it was also claimed that a sum of Rs,39,000 was deposited in the Bank in the Bank account of the husband of the landlady by the tenant, therefore, it was allowed to be adjusted and it was claimed that a final sum of Rs,1,07,905 was payable as arrears. Notice of this application was directed to the tenant appellant but he did not file any objections or counter- affidavit to this application. However, the counsel for the appellant argued before the Rent Controller and after hearing the arguments of both the parties, the Rent Controller passed an order on 6-8-1991 directing the tenant to tentatively deposit the arrears of the rent within 2 months of the order. The relevant portion of the order is reproduced as follows:-- "However, I tentatively direct the opponent to deposit arrears of rent for the month of December, 1988, after adjusting Rs,2,595 and from the month of January, 1989 up to the month of October, 1990 @ Rs,6,500 per month, after adjusting Rs,39,000, which were deposited by the opponent in the bank account in this case within two months from the date of this order. He is further directed to deposit the arrears of rent from the month of November, 1990 up to this month at the same rate within two months from the date of this order. He is further directed to deposit future monthly rent at the same rate, from the month of September, 1991 on or before 10th day of each calendar month in this case.
Applicant is not allowed to withdraw the rent for the disputed period till further order. Application is disposed of accordingly."
3. In response to the above order for deposit of rent the appellant/tenant did not deposit in Court any amount. An application for passing orders under section 16(2) of the S.R.P.O. Was filed by the landlady on 7-10-1991 in the Court of Rent Controller after expiry of the 2 months' period. The order on the application for striking off the defence was passed on 23-1-1993 and the tenant was directed to vacate the premises within 3 months. Against this order, the present rent appeal has been filed. Learned counsel for the appellant has argued that the impugned order is bad in law because:--
(i) the order is vague inasmuch as no fixed amount has been ordered to be deposited;
(ii) no summary enquiry was made before passing of this order, hence the order was illegal.
4. While arguing the first ground, the learned counsel for the appellant laid stress on the contents of the order for deposit of the rent and contended that the Court has left the point of calculation to the parties and has not given the exact figure of the amount to be deposited hence the order for deposit of the rent was liable to be set aside. Learned counsel for the appellant, in support of his argument, has relied upon a case of Habib Bank Ltd. v. Noor Ahmed, reported in 1990 CLC 1170. In this case, it has been held that the order for deposit of the rent has to be certain, free of vagueness and must have an element of definiteness. It has also been held in this case, where calculations were left for tenant to make or for him to confirm from another set of proceedings, such order would involve departure from statutory requirement and fail to qualify prescribed test for invocation of penal consequences of striking off defence.
5. There can be no cavil with the proposition of law laid down in the above authority but after going through the impugned order of the deposit of rent dated 6-8-1991, it is clear that nothing is left by the Rent Controller to find out the actual amount of rent to be deposited, except the exercise of actual mathematical calculation which is not difficult at all. Nothing has been left to be confirmed from another set of proceedings to arrive at the actual amount to be deposited, therefore, this authority does not appear to be of help to the appellant under the circumstances of the present case. The next case cited by the learned counsel for the appellant in support of his contention is Muhammad Aslam v. Muhammad Umar, PLD 1982 Karachi 107. In this case also the direction of the Rent Controller in respect of the deduction of the amount, which was deposited by him in the Court was found that it was a direction of ascertaining the amount deposited in the Miscellaneous case.
Such ascertainment from a Miscellaneous case was found to be against the spirit of provisions of section 13(6) of the Rent Restriction Ordinance and, therefore, it was held that in that case the calculation and determination of the amount of rent due was left to the appellant. In this case the facts are at a little variance as in this case, nothing has been left to be determined but only an exercise of mathematical calculation, which can be made -within a few minutes time, has been left over by the Rent Controller. I do not find, therefore, that the order of the deposit of rent in this case violates any spirit of the authority laid down in this case also. .6. The next case relied upon by the counsel for the appellant is Anwar Ahmed v. Muhammad Sharif, 1991 MLD 701, in which also the appellant had been left with the calculations to be done by him in respect of the adjustment of rent already deposited by him in Miscellaneous rent case, amount of which was not specified. There can be no cavil to this proposition of law that such direction is vague but at the same time in this very case it was held that the second part of the direction in respect of the deposit of future rent, if not complied with, the Rent Controller could strike off the defence of the tenant. As I have observed earlier in this case, I do not consider that the tentative rent order passed by the Rent Controller in this case was vague, and the second part of the order viz. Deposit of the future rent, was also a valid direction and non-compliance of that direction alone renders the appellant liable to striking off the defence and ejectment. The second part of the argument of the learned counsel that a summary enquiry should have been held before passing of a tentative order also does not appeal to mind in this case to render the order of the Rent Controller ineffective. The reasons for this conclusion in the present case are that although the order for deposit of tentative rent was passed on 6-8-1991 the final order for striking off the defence has been passed on 23-1-1993 i,e, nearly 1-1/2 years after the first order. During the intervening period of about 1-1/2 years the appellant had been contesting for review of the passing of the tentative rent order and also for its stay. Therefore, it can be said that the appellant had the opportunity to produce the evidence before the Rent Controller, which could show that he was not liable to make such deposit of the tentative rent. Above all, the order for deposit of the rent was tentative in nature and the Rent Controller had ordered that the landlady shall not withdraw the rent from the Court. This shows that Rent Controller had also safeguarded the interest of the tenant and that if the amount was proved to have been paid in excess, the tenant could have succeeded in getting back the same or a portion thereof, when he could prove that it was recovered from him unnecessarily. But here the conduct of the tenant is such that during the period of 2 months' time which he was allowed for depositing of arrears of rent, he did not take any action at all and the first application, which he made before the Rent Controller for reviewing the order and for staying the proceedings was moved after the expiry of two months' time. On top of that, the tenant could have conveniently started depositing the rent, which was not in dispute i,e, the rent of the future months.
It is observed in this case that the tenant did not care to deposit future rent even for a single month in the Court. The next contention of the learned counsel for the appellant is that the main application under section 15 of the S.R.P.O., has been filed through Mr. A.R. Suhurwardi, attorney of the landlady Mst. Surraya Sultana. The copy of the Power of Attorney, which has been placed on the record, does not show that it has been authenticated by a Notary Public or a Magistrate. As per the contention of the learned counsel for the appellant, the application is, therefore, not moved before the Rent Controller in accordance with law and, therefore, entire proceedings are an exercise in futility and are nullity in the eyes of law. In support of his contention, learned counsel has relied upon the case of Munir Hussain v. Mst. Mehrunnisa, PLD 1982 Karachi 71. In this case the power of attorney did not contain the recitation, which authorised the attorney to sign, verify and present the ejectment application against the appellant. Not only this, but in the above case, no evidence was produced showing that the executant had actually executed the said Power of Attorney authorising the attorney to act on her behalf, therefore, it was held in the above case that the ejectment application was not validly instituted. But in the present case after the application was filed in the Court of the Rent Controller, Mst. Surraya Sultana, the landlady/executant of the Power of Attorney, had filed an affidavit of her own on 16th October, 1991 by which it was confirmed that she was confirming the filing of the ejectment application through her attorney. The relevant words in the first paragraph of this affidavit are reproduced as under:- "1. That I am the applicant in the above case am fully conversant with the facts of the case. The ejectment application in the above case was filed by me through the attorney as at relevant time I was in Musqat and I have now permanently come down to Karachi."
Thus the facts in this case are different from the facts of the above case, in which it was held that the application was not validly instituted. The filing of the affidavit of the applicant has confirmed and validated the execution of the Power of Attorney through whom the application was filed and, therefore, it cannot be said that the application was not properly instituted and it cannot be termed as a nullity in the eyes of law. Learned counsel for the respondent/landlady contended that the order of depositing of tentative rent was passed after considering the pleas of both the parties and keeping in view the interest of justice and, therefore, the contentions of the learned counsel for the appellant that the receipts of the rent produced by him having not been considered, the order was improper and arbitrary, is not correct. He has relied upon a case of Chaudhry Rahimuddin v.
Chaudhry Jamaluddin, reported in PLD 1991 SC 484. In this case it has been observed by the Supreme Court that while passing the tentative rent order, the Rent Controller had taken into consideration the versions of both the parties and ordered the deposit of arrears, with the proviso that appellant would not be allowed to withdraw rent till disposal of the case to certain extent. It was held that it could not be urged that the Rent Controller had not taken into consideration the respondent's plea as to the rate of rent. It was also held that this order purported to protect the interest of the tenant by disallowing the landlord to withdraw the rent. As such, tentative order was found not to be improper or arbitrary. Finding myself in respectful agreement with this case of the Supreme Court, I feel that the present order for deposit of tentative rent does not suffer from any illegality and to me it appears to be just. The conduct of the appellant in not complying with the directions of this order should render him liable to ejectment. I, therefore, do not find any merit in the present appeal. Therefore, F.R.A. No,139/93 is dismissed without any order as to costs. However, the appellant is given a period of 3 months from the date of this order to hand over the vacant possession to the respondent/landlady.