1. ' This is an appeal under section 24 of the Cantonments Rent Restriction Act, 1963 (hereinafter called Rent Act) directed against an order dated 29-3-1995 passed by Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No,48/94, Mst. Abida Yasmin v. Tanveer Ahmad, whereby the learned Additional Controller of Rents struck off the defence of the appellant for non- compliance of order dated 4-2-1995 passed under section 17, clause (8) of the Rent Act, hence the present appeal.
2. ' Brief facts of the case are that the appellant/tenant was directed as per order dated 4-2-1995 to deposit arrears of rent (inclusive of hiring charges) at the rate of Rs,3,200 per month from 7-10-1993 to January, 1995 on or before 1-3-1995 and future rent at the rate of Rs,3,200 per month from February, 1995 and thereafter to continue to deposit rent before 5th of each succeeding month subject to condition that respondent/landlady would not withdraw the rent for the period from 7- 10-1993 to December, 1993 till the disposal of the case, however', the respondent/landlady was allowed to withdraw the rent from January, 1994 onwards. The respondent/landlady moved an application on 18-3-1995 under subsection (9) of section 17 of the Rent Act stating therein that appellant/tenant has failed to deposit rent for the month of February, 1995 in accordance with rent order dated 4-2-1995, therefore, defence of the opponent be struck off. The learned Additional Controller of Rents ordered notice to the other side on 18-3-1995 on the application moved by the respondent/landlady and also in the diary sheet it was ordered that the accountant to submit his report on the said application and the matter was adjourned to 29-3-1995 for filing affidavit-in- evidence by the applicant/further action/order.
3. ' The matter was put up on 29-3-1995 when impugned order was passed when the appellant's attorney was not present, hence this appeal has been preferred.
4. ' I have heard Mr. Habibur Rehman, learned counsel for appellant's attorney and Mr. Iftikhar Javed Qazi, learned counsel for respondent and perused the record and proceedings of the case and the case-law cited by the parties' counsel.
5. ' Learned counsel Mr. Habibur Rehman, for appellants attorney has argued that impugned order has been passed without affording opportunity to the appellant/tenant and further the tentative rent order dated 4-2-1995 passed under subsection (8) of section 17 of the Rent Act was illegal as the same was passed without determining the amount of total arrears to be deposited by the appellant/tenant. He has referred to diary sheet dated 18-3-1995 and also impugned order dated 29-3-1995 and the bailiff's endorsement at page 11 of the second part of the R & P and has also placed reliance upon Muhammad Nasir Farooqi v. Mst. Zubaida and 2 others (1992 CLC 1086), Habib Bank Ltd. v. Noor Ahmad (1990 CLC 1170), Ali Jan v. Shujauddin (PLD 1985 Kar. 698, Syed Ahsan Ali v. Jaffar Ali and 4 others PLD 1964 (W.P.) Kar. 418 and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi (1986 M LD 2980) in support of his contentions.
6. ' Mr. Iftikhar Javed Qazi, learned counsel for respondent has argued that the order dated 4-2-1995 is legal and proper considering that it consisted of two parts one part dealing with the deposit of arrears of rent from 7-10-1993 to January, 1995 to be deposited before 1-3-1995 and the second part consisted of the directions for the deposit of future rent from February, 1995 before 5th of each calendar Month. He has argued that so far the arrears of rent of the first part of order is concerned, the appellant/tenant has made compliance of the same by making deposit of rent for the sum of Rs,40,800 on 22-2-1995 and sum of Rs,6,400 on 28-2-1995 but so far the second part of the order, i,e, rent for the months of February and March, 1995 which was to be deposited before 5th of March and 5th of April, 1995 respectively was deposited on 19-4-1995 therefore there was non- compliance of the order dated 4-2-1995 as per certified copy of statement of the payments made in the office, the Additional Controller of the Rent, Clifton Cantonment, filed with the memo. Of appeal. He has further argued that Raja Nasir Mehmood is the legally constituted attorney of the appellant and he has been pursuing the proceedings before the Rent Controller as well as has filed the present appeal in this Court who did not receive the notice in respect of application moved under section 17(9) of the Rent Act by the respondent/landlady from the process-server (bailiff) who made endorsement on oath that he went to the address of the opponent who was not there but his brother Nasir Mehmood was present who told him that appellant/tenant was not present therefore the notice could not be served. Learned counsel in view of the endorsement of the bailiff contended that Mr. Nasir Mehmood should have accepted the notice of the appellant being his attorney therefore it could not be said that appellant's attorney had no notice of the application or that he was not given opportunity of hearing. He has further argued that the amount in terms of subsection (8) of section 17 is to be determined in respect of arrears of rent but in the instant case the appellant/tenant has made non-compliance of deposit of the future rent, of which there has been no justification for the appellant/tenant's attorney not to make deposit the same and to make non-compliance of the order, therefore, the impugned order striking off the defence of the appellant was legal and proper. He has placed reliance upon Ramz Ali Sangi v. Kamal Ahmed Nomani (1987 CLC 563); Abdul Malik Shamsi v. Muhammad Shamim (1986 CLC 540); Sheikh Ghulam Irfan v. Raheela Fayyaz (1994 M LD 789); Asad Ahmad Siddiqui v. Mst. Wilayati Begum (1990 M LD 2247); Maqbool Elahi v. S. Anwer Tauheed (1984 CLC 626); M/s. Crescent Publicity Service v. S.M.
7. Younus and others (1980 SCM R 779) and Begum Fehmeeda Khalifa v. Salma Hameed Qureshi (1992 ALD 438) in support of his contentions.
8. ' Contention of the learned counsel for appellant's attorney that impugned order was passed without notice to him has no merit in view of following reason. Application dated 18-3-1995 under section 17(8) of the Rent Act bears the order of notice to other side passed by the Rent Controller and in pursuance of that order, notice was issued to the appellant/tenant but it was not received by Mr. Nasir Mehmood, the attorney of the appellant/tenant, and the process-server was told that the appellant/tenant was not there. Mr. Nasir Mehmood being attorney should have received the notice but he avoided to receive the same. The statement of the process-server is on oath and no reason has been assigned by Mr. Nasir Mehmood as to why he did not receive notice being attorney of the appellant from the process-server. In case the notice is sent but it is not received or avoided by a party then he could not say that he was not given notice or that he was condemned unheard. The appellant's attorney knew that the said application was filed and the process-server had brought the notice to him but he avoided to receive the same by saying that the appellant was not there. In the circumstances, it cannot be said that the appellant had no notice or was not given opportunity of hearing.
9. ' Next contention of the learned counsel for appellant is that the order dated 4-2-1995 is illegal as the Rent Controller failed to determine the total amount of arrears by calculation, therefore, in view of the case-law cited, the non-compliance of the order would not entail the penalty of eviction upon the appellant, however, learned counsel has failed to say anything as to why future rent for the months of February and March, 1995 was not deposited in terms of order dated 4-2-1995. In fact, there is no default in respect of arrears of rent but the default has occurred for the future rent for the months of February and March, 1995 which is evident from the statement of deposit made in the office of the Additional Controller of Rent, the certified copy of which has been filed alongwith the counter-objections in this appeal, the copy of which was supplied to the learned counsel for appellant's attorney and in the rejoinder the attorney of the appellant stated that the rent for the months of February and March, 1995 was deposited on 28-2-1995 but the said amount deposited would appear from the certified copy of statement of deposit of rent to be rent for the months of December and January, 1995, the receipts of which were given to the appellant/tenant's attorney as stated by the learned counsel for respondent but the same have not been deliberately filed to cover up the lapse on his part.
10. ' As regards the decision relied upon by the learned counsel for the appellant's attorney in Muhammad Nasir Farooqi v. Mst. Zubaida and 2 others (1992 CLC 1086) case, the appellant/tenant was directed to withdraw the rent already deposited by him with the Rent Controller, Karachi-South and to deposit the same before the Controller Cantonment Board before 5-9-1990 and further to deposit rent for the month of September, 1990 and for subsequent months on 5th of each succeeding month but the appellant/tenant could not withdraw rent from the Rent Controller, Karachi-South, and deposit the same with the Rent Controller, Cantonment Board, therefore, on the application of the respondent/landlady after getting the report from the accountant about the deposit of rent defence of the appellant/tenant was struck off and in the said circumstances plea was taken that the appellant/tenant was not given notice of the said application. The instant case is distinguishable to the facts of the reported case as in that case no notice of application under section 17(9) of Rent Act was given whereas in the instant case notice was issued but it was not received by the attorney of the appellant and secondly the default pertained to non-compliance of arrears of rent not in respect of future rent as would appear from the reported judgement. In Habib Bank Ltd. v. Noor Ahmad (1990 CLC 1170) case, the appellant/tenant was directed to deposit rent from March, 1984 to June, 1986 at the rate of Rs,1,000 amounting to Rs,28,000 in all, subject to adjustment of rent lying deposited in the Court, however, the appellant/tenant made a statement on 11-8-1986 that he could not deposit the rent in the pending ejectment case due to certain difficulties and he continued to deposit in Miscellaneous Rent Case therefore the respondent/landlord made an application for striking off the defence of the appellant/tenant which application was dismissed against which F.R.A. No,75/88 was filed before this Court which too was dismissed in limine on 18-2-1988 holding that the Rent Controller could only direct deposit of rent as such, and since the direction for adjustment of the deposited rent in the Miscellaneous Rent Case involved vagueness and an irregularity, defence of the appellant could not be struck off and direction was made for fresh order of deposit and thereafter fresh order was passed but the appellant/tenant did not make deposit in compliance of the order therefore his defence was again struck off on 13-4-1989, therefore, appeal was preferred before this Court wherein it was observed that the Rent Controller had committed the same error directing that amount deposited be adjusted but had not quantified and had directed amount deposited be transferred to the ejectment case. It was further held that where calculations are left to the tenant to make or for him to confirm from another set of proceedings, such order involves departure from statutory requirements and fails to qualify the prescribed test for invocation of penal consequences. The said reported case is distinguishable to the facts of the instant case as there was a question of adjustment of rent earlier deposited in the Court but in the instant case there was no such question but the question was that the appellant/tenant failed to deposit future rent for the months of February and March, 1995 in terms of the order dated 4-2-1995. The case of Ali Jan v. Shujauddin PLD 1985 Kar. 698, cited by the learned counsel for the appellant's attorney supports the case of the respondent. In the said case the appellant was directed to deposit arrears of rent from July, 1977 to August, 1979 at the rate of Rs,100 per month amounting to Rs,2,600 in the Court before 12th of October, 1979 and future rent from September, 1979 at the rate of Rs,100 per month till the disposal of the case before the 15th of each calendar month and further that amount of rent deposited in any Miscellaneous Application in the name of the respondent till the date of order be adjusted against the amount of arrears of .Rs,2,600 but the appellant failed to comply with the above order therefore his defence was struck off. In the said case it was pleaded that the order under section 13(6) of the Sindh Urban Rent Restriction Ordinance, 1959 was not in accordance with the provisions under which it was passed and therefore its non-compliance would not result in the striking off the defence of the appellant as instead of determining the amount of arrears of rent, the Controller left it to be determined by the appellant/tenant though under the law Rent Controller was required to determine it. In the said circumstances, it was observed: "The rule laid down by the learned Judges of the Supreme Court in the aforesaid case is in our opinion not applicable to the order passed by the Controller for the direction given by the Controller for deposit of future rent is not based on the earlier order as to deposit of arrears of rent.
11. The Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all that his order as a whole would be illegal. It is not disputed that the Controller had jurisdiction to pass the second direction as to deposit of future rent as contained in the order, dated 23-9-1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though that may be contained in one order for the reason that there may be cases where there may not be any arrears of rent to be paid. In such cases there will not be any order by the Controller for deposit of arrears of rent. There will be an order only for deposit of future rent and in such case there could be a default in respect of future rent only. We may consider the question from another angle. Assuming the Controller had passed the order of deposit of arrears of rent according to law and also the order of deposit of future rent again in accordance with law and the appellant had complied with the order of deposit of future rent, still, the tenant would have been liable to be evicted from the premises. Thus, we are clear in our mind that the two directions which are required to be given by the Controller are independent of each other."
12. ' In Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi, (1986 M LD 2980) case, the appellant/tenant was directed to deposit arrears of rent as well as future rent subject to adjustment of the rent already deposited in Miscellaneous Rent Case till the date of order and future rent to be deposited before 10th of each calendar month. The respondent/landlord filed application for striking off the defence on the ground that balance of arrears of rent as well as future rent was not deposited in time. This Court after hearing the counsel for parties observed that statement of account including Nazir's report as well as amount of rent due against the appellant would show that appellant had deposited much more than the amount of rent which was due to him, therefore, there was no default in deposit of future rent as well. The instant case in the circumstances is distinguishable to the facts of the said reported case. In Syed Ahsan Ali v. Jaffar Ali and 4 others (PLD 1964 (W.P.) Kar.
13. 418) case,, the appellant/tenant was directed to clear off Rs,1,200 as arrears of rent till January, 1963 in two equal instalments payable before 5th February and 5th March, 1963 and continue paying the rent at the rate of Rs,100 per month till decision of the case. It was contended in the said case that "if orders in respect of the arrears and future rents are not passed in strict conformity with its provisions, the tenant is not liable to be evicted for not complying with a defective order". In the instant case nothing has been said as to how the tentative rent order with regard to the deposit of future rent was not in conformity with the provisions of law or that how the appellant was justified from not making compliance of future rent for the months of February and March, 1995.
14. Accordingly, the said case cited is distinguishable to the instant case.
15. ' Now remains the case-law cited by the learned counsel for the respondent. In Ramz Ali Sangi v.
16. Kamal Ahmed Nomani (1987 CLC 563) case, the appellant was directed to deposit arrears of rent from April, 1985 to June, 1986 at the rate of Rs,1,100 per month and Rs,400 being arrears of rent of March, 1985, amounting to Rs,16,900 after deducting Rs,4,800 if he had paid the decretal amount, and the said amount was to be paid within 30 days of the order and the appellant was, however, directed to pay future monthly rent of Rs,1,100 per month from July, 1985. The respondent filed an application that the appellant/tenant has not deposited rent since March and has failed to deposit arrears of rent by 13-8-1986 as required to pay rent of July before the 10th of August and has failed to deposit two decretal amounts of Small Causes Court, therefore, salary has been attached. The Rent Controller struck off the defence and the appeal before this Court also failed. In Sheikh Ghulam Irfan v. Raheela Fayyaz (1994 M LD 789) case, the appellant was directed to deposit a sum of Rs,29,133 as rent arrears till 24-11-1993 and future monthly rent at the rate of Rs,3,200 per month before 5th of each calendar month. The rent for the month of October, 1993 was payable before 5th of November, 1993. The respondent submitted an application under section 17(8) of the Rent Act on 31-11-1993 for striking off the defence of the appellant/tenant on the ground that neither arrears of rent were paid nor rent for the month of November, 1993 was deposited before the 5th of next month. The Rent Controller struck off the defence against which appeal was filed before this Court which also failed. In Asad Ahmed Siddiqui v. Mst. Wilayati Begum (1990 M LD 2247) case, the appellant/tenant was directed to deposit arrears of rent from July to November, 1989 and to continue to deposit future rent w,e,f, Ist December, 1989 before 10th of the following months. The appellant did not comply with the order and on 20th January, 1990, the respondent applied under section 16(2) of the Ordinance for striking off the defence against which appeal was preferred wherein it was pleaded that the Rent Controller should have first determined the relationship of landlord and tenant between the parties, hence, the tentative rent order passed was not legal and this Court held that the tentative rent order to be perfectly valid and dismissed the appeal filed by the appellant/tenant. In Maqbool Elahi v. S. Anwer Tauheed (1984 CLC 626) case, the Rent Controller directed the tenants to deposit arrears of rent at the rates claimed by the respondent with the condition that disputed portions of rents shall not be withdrawn by the respondent till the final disposal of the case. The respondent filed application under section 16(2) of the Rent Ordinance to which objections were filed by the tenants and Rent Controller struck off the defence of the tenant and ordered ejectment. The plea was raised by the counsel for the tenant that enquiry was required to be made by Rent Controller before passing tentative rent orders as it was not made therefore the orders passed were illegal. It was held by this Court that it was not necessary to record evidence by the Rent Controller and the tentative rent orders were legal. In M/s. Crescent Publicity Service v. S.M. Younus and others (1980 SCM R 779) case, their Lordship upheld the decision of High Court holding that even single' default would be sufficient to bring the case within the mischief of section 13(6) of Rent Ordinance. In Begum Fehmeeda Khalifa v. Salma Hameed Qureshi, (1992 ALD 438) case, it was held at page 408 that: ' This is apart from the fact that according to the definition of the building given in the Cantonments Rent Restriction Act, 1963, the fittings and fixtures in the building also fall within the definition of building and has been treated to be part of building. This being so even if the rent was fixed separately for the main building and the fixtures and fittings through different agreements, the total amount payable through these two agreements for both building and fixtures could safely be construed to be the rent for the building."
17. ' In Abdul Malik Shamsi v. Muhammad Shamim (1986 CLC 540) case, it was held by this Court that failure of tenant to comply with the tentative rent order would attract the provisions of section 17(9) of the Rent Act, therefore, defence was liable to be struck off.
18. ' From the perusal of the facts and the case-law, it would appear that first part of order dated 4-2- 1995 is defective to the extent that approximate amount in respect of arrears of rent was not mentioned though the same could have been easily calculated and, in fact, it was complied with by the appellant/tenant's attorney by making deposit on two different dates and, thus, there was no default so far the arrears of rent was concerned. So far the future rent, it is clear from the record and the certified true copy of statement obtained from the register of the Cantonment Board that the appellant/tenant failed to deposit rent in time towards the future rent for the months of February and March, 1995 and was, in fact, deposited on 19-4-1995 and thus there was clear non- compliance of the tentative rent order. I have heard at length the learned counsel for appellant/tenant's attorney but he could not convince me that the rent for the months of February and March, 1995 was deposited. I do not find in the circumstances to remand the case to the Court below for further enquiry only on the ground that total amount of arrears was not determined by the Rent Controller whereas appeal would also fail as appellant has failed to deposit future rent for the months of February and March, 1995 in terms of order as no evidence would be available to the appellant which could be adduced in support of his contentions made before this Court considering that it would be mere wastage of time and energy of the parties. Reference is made to Syed Abdul Hakim and others v. Ghulam Mohiuddin (PLD 1994 SC 52). I do not find any substance in the contentions of the appellant's counsel hence the appeal has no merits which is hereby dismissed in limine. Consequently, C.M.A. No,792/95 is also dismissed. The appellant is given thirty days' period to vacate the premises.