' 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/1, 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 Nos. 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 defendants 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 defendants Nos. 2 and 3 which has been filed with plaint as Annexures `P-3' and T-4' respectively.
2. It is the case of the plaintiffs that the defendants paid rent till November, 1986 and then out of mala 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 Cantonments Rent Restriction Act before the Rent Controller, Cantonment Board, Clifton, Karachi. This case was numbered as 51/87. 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 abovesaid order of the Rent Controller, Clifton, Karachi, the defendant No,1 preferred a first rent appeal before this Court which was numbered as F.RA. No, 84/88.
Defendants Nos. 2 and 3 preferred another first rent appeal which was numbered as F.RA. 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 the 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 10-11-1993 after a delay of nearly four years. Fresh notices were ordered to be issued to the parties to reargue 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 finally 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 Ataullah Malik v. Rasheed and another (PLD 1972 Kar. 273). For proper appreciation of the contention raised by Mr. A. Rashid, it will be advantageous to reproduce 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.RA. 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 of 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 (Rupees one lac sixty-eight thousand) towards the arrears of rent.
' 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. Particia 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 February 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 from 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 further averred by the plaintiffs in their plaint that the First Rent Appeal bearing No, 84/88 and F.RA. 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 16 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 of rights by the Rent Controller or Appellate Court. On the proposition that the rent orders are tentative in nature and not final, reference may be made to a case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), Abdul Ghafoor v. Ahmed Khundi (PLD 1969 SC 424) and the case of Mushtaq Hussain v. Muhammad Shafi (1979 SCMR 496). In one of the recent case, Supreme Court of Pakistan held that an order under section 16 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 Ali Agha (PLD 1988 SC 190). Now the question remains to be answered is whether right to sue or recover arrears of rent will remain suspended during final 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 and 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 their Lordships of the Supreme Court in Ashfaqur Rahman v. Ch. Muhammad Afzal (PLD 1968 SC 230), 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 arrears 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 an evacuee, property and under section 16 of the Pakistan (Administration of Evacuee 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. Canal Petrol Service, Larkana v. M/s. Pakistan Burmah Shell Oil Storage & 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 (sic) questioned the amount of rent and commission outstanding against the defendant. After considering the entire evidence of the case, it was held by Mr. Saiduzzaman 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 the reported case:-- "... It is, therefore, 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 plaintiffs themselves closed this issue vide its letter dated 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 institution of the suit..."
10. In another case reported as Anwarul Haq v. Messrs Standard Eastern Inc. (1988 MLD 1170), it was held by Mr. Ajmal Mian, J. (as he then was) that a suit for recovery of arrears of rent is maintainable, if filed within three years after the 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 then the cause of action will arise for the recovery of rent for each month when the rent becomes due and payable for the month concerned."
11. In the case of Anwarul Haq, the effect of acknowledgment 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 acknowledgment. In the present case, there is no acknowledgment 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 of rents. Therefore, the plaintiff has no basis to say that there was an acknowledgment and that the time will run from the date of last acknowledgment. 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 stop 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 Ashfaqur Rehman v. 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 carry the connotation of 'due in law' or recoverable in an action at law."
13. In another case, this Court has also considered the words "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 MLD 1514). The same proposition of law was also held in the case of Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh (1980 CLC 664) by Mr. Zaffar Hussain Mirza, J. (as he then was).
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 27-41989. The last rent outstanding was for the month of March, 1989. The rent for the month of November, 1986 became due on the 1st day of December, 1986. According to section 17(2)(i) of the Cantonments Rent Restriction Act, 1963, a tenant is obliged to pay the monthly rent within fifteen days of the expiry of the time fixed in the tenancy agreement. Therefore, the time available to the plaintiffs for claiming rent for the month of November, 1986 expired on 15-12-1989. Similarly, the period for claiming rent for the month of March, 1989 expired on 15-4-1992. In these circumstances, time available to the plaintiffs for filing suit for recovery of rents against tenants was up to 5-4-1992 but the suit was filed on 10-1-1993. In view of the facts and law discussed hereinabove, this suit is liable to be dismissed, although the question of limitation was not set up as a defence.
15. Suit is dismissed with no order as to costs.