1. ' This is First Rent Appeal under section 24 (1) of the Cantonments Rent Restriction Act, 1963 (hereinafter called Rent Act) directed against an order dated 30-8-1995 passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No, 66/94, Juzer Fakhruddin and others v. Waseem Shah whereby an application under section 17(9) of the Rent Act filed by the respondent/landlord was allowed thereby defence of the appellant/tenant was struck off with the direction to hand over the vacant possession of demised premises to the respondent/landlord within 30 days hence the present appeal.
2. ' Brief facts of the case are that the respondent/landlord filed an application under section 17 of the Rent Act against the appellant/tenant in respect of shop called Cafe Oasis situated on the ground floor building known as 'Al-Ibrahim' constructed on plot No, 42-C, Stadium Lane No, 3, Off.
3. Khayaban-e-Mujahid, Phase-V, Defence Offices Housing Authority on the ground that the appellant/tenant has committed default in the payment of monthly rent of Rs,8,000 per month from the month of June, 1984 and has also failed to pay electricity and gas charges amounting to Rs,37,292 and Rs,21,687 up to July, 1994. The appellant/tenant filed written statement wherein he stated that the rate of rent was Rs,4,000 and not Rs,8,000 per month and the tenancy agreement filed with the ejectment application was a forged document and that he has paid an amount of Rs,1,58,000 as security deposit and further that he was not defaulter in the payment of rent a s he has paid rent in advance up to September, 1994 and has also paid gas and electricity charges up to October, 1994. The Additional Controller of Rents on 29-4-1995 passed an order under subsection
(8) of section 17 whereby the appellant/tenant was directed to deposit rent. The operative part of the order runs:-- "In view of the above discussion, I tentatively hold that the rate of rent is Rs,8,000 per month and as such the opponent is liable to pay the monthly rent at the rate of Rs,8,000 I accordingly, direct the opponent to deposit the rent.At the rate of Rs,8,000 per month for the period from June, 1994 to March, 1995 on or before 31-5-1995 and further direct the opponent to deposit the rent for the month of April, 1995 before 5th of May, 1995 and subsequent months' rent before the 5th of each succeeding month. However, the applicant is restricted to withdraw the rent from June, 1994 to September, 1994 till disposal of the case. The applicant is allowed to withdraw the rent at the rate of Rs,4,000 per month from October, 1994 to ownwards, so deposited by the opponent. As regards the recovery of arrears of electric and gas charges outstanding against the opponent, it is stated these charges do not form part of rent under Cantonments Rent Restriction Act, 1963, therefore, the applicant may sue the opponent at appropriate forum for recovery of these arrears."
4. ' The respondent/landlord filed an application under section 17(9) of the Rent Act on 28-6-1995, a copy of which was received by the appellant's counsel on 5-7-1995 praying therein that appellant/tenant has failed to deposit rent due before the specified date, i,e, 31-5-1995 and also filed to deposit monthly rent for the month of May due on 5-5-1995 therefore his defence be struck off. The Court Accountant Clifton Cantonment as per his report dated 11-7-1995 stated: "As per rent order dated 29-4-1995, the opponent was required to deposit the rent at the rate of Rs,8,000 per month from June, 1994 to March, 1995 on or before 31st May, 1995. The opponent was further directed to deposit the rent at the rate of Rs,8,000 per month for the month of April, 1995 before 5th of May, 1995. The opponent has not deposited the arrears of rent as well as current monthly rent. But, he has deposited the rent for the month of May, 1995 of Rs,4,000 on 4-6-1995 and also deposited the rent for the month of June, 1995 of Rs,4,000 on 4-7-1995."
5. ' The appellant/tenant has not filed any counter-affidavit to contradict the affidavit of respondent/landlord filed in support of application under section 17 (9) of the Rent Act as well as to the report of the Court Accountant in respect of nonpayment of rent in terms of the order dated 29-4-1995. Learned counsel for respondent appeared on 30-8-1995 but the appellant/tenant and his learned counsel remained absent when the Rent Controller passed the impugned order.
6. ' I have heard learned counsel for parties and perused the record and proceedings of the case and the case-law cited.
7. ' Learned counsel Mr. Agha Faqeer Muhammad for appellant/tenant has argued that the appellant was to pay monthly rent at the rate of Rs,4,000 per month and the agreement of tenancy filed with the ejectment application was forged therefore the order dated 29-4-1995 under section 17(8) of the Rent Act was not legal, hence the same was not complied with. He has further argued that he was not in arrears of rent therefore he was not bound to deposit the rent in terms of the order dated 29-4-1995. He has not stated that he has made compliance of the order dated 29-4-1995.
8. ' Learned counsel Mr. Imran Ahmad for respondent has argued that the Controller in case of disagreement on the amount due has to determine the same approximately and the same order would be a provisional one therefore the appellant/tenant was bound to deposit rent in terms of the order passed under section 17(8) of the Rent Act and the grounds raised now challenging the rate of rent and the amount of arrears would have no merit. He has placed reliance upon Niaz Khalil v. Sh. Muhammad Shafique (1995 SCM R 791) and Abdul Malik Shamsi v. Muhammad Shamim (1986 CLC 540) in support of his contentions.
9. It is admitted position that the appellant tenant has not deposited arrears of rent and also not deposited rent for the month of April, 1995 before 5th May, 1995 and rent for the month of May, 1995 was deposited as the rate of Rs,4,000 instead of Rs,8,000 on 4-6-1995 and rent for the month of June, 1995 was deposited at the rate of Rs,4,000 instead of. Rs,8,000 on 4-7-1995. Learned counsel for the appellant has not contradicted the report of Court Accountant. In the instant case, the only point for consideration would be whether defence of the appellant/tenant could be struck off for non-compliance of the order passed under section 17(8) of the Rent Act when the rate of rent was disputed and that the tenancy agreement was stated to be forged.
10. ' Section 17 (8) of the Rent Act runs:- "C n the first hearing of proceeding under this section or as soon thereafter as may be put before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately."
11. ' Perusal of the above provision would show that the Controller has to pass a provisional order determining the approximately amount due while passing order under section 17(8) of Rent Act.
12. The said order is not final in nature. Subsection (9) of section 17 of Rent Act has provided that in case tenant failed to deposit amount of rent before the specified date in terms of the order passed under subsection (8) of section 17 of Rent Act if he was tenant his defence would be struck off and the said provision did not state that in case where there was disagreement as to rate of rent or as to arrears of rent or there was any other defence of the tenant, the penalty provided under subsection (9) of section 17 would not be imposed. If the arguments advanced by the learned counsel for appellant are to prevail then the provision of subsection (9) of section 17 would become nugatory. It has been specifically stated that under subsection (9) of section 17 of Rent Act that in case of failure to deposit amount before specified date, the defence of the tenant shall be struck off under subsection (9) of section 17 of the Rent Act. Mere fact that the appellant/tenant has disputed the rate of rent and has stated that the tenancy agreement was forged one, would not exempt him from making the compliance of the order passed under subsection (8) of section 17 of the Rent Act. In this respect, reference is made to Malik Mahmood v. Muhammad Yousuf Khan (1988 CLC 675) wherein learned Judge in Chamber observed: "Thus, his reliance upon the aforementioned receipts apart from appearing to be an afterthought may, at best, be considered a defence plea which, however, was not enabled by tenant himself to be entertained or inquired into on account of his failure to faithfully comply with the Rent Controller's order, dated 1-4-1986 and such a failure of compliance had to be visited with the penal consequences as is laid down in Abdul Qayyum Paracha v. Ghulam Hussain etc. 1985 SCM R 580 which also holds that the legality of the order or the quantum of rent cannot be brought under challenge in a proceeding confined to an inquiry relating to default in compliance of the order relating to the deposit of arrears and future rent. Tenant's reliance on the two receipts allegedly issued by the landlord is actually irrelevant in the context of compliance of order relating to deposit in Court which, even upon accepting those receipts to be genuine, remains defaulted at least to that extent. Once a failure to deposit rent strictly in accordance with the terms of the order passed by the Controller is established, he is not left with any discretion in the matter of striking off defence.
13. So, has been held in Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 and re- affirmed in Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1. Further, in Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others 1987 SCM R 25 such a noncompliance was held to have to legitimately result in striking off the defence of the tenant. Hence, even though the genuineness of the receipts relied upon by the tenant is seriously contested, yet, nothing can turn upon his having so paid the amount to the landlord because even if this plea was to be accepted as correct it will not import a compliance of the relevant order, according to its terms. The plea thus Reference is also made to Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan (PLD 1983 SC 1) where the Supreme Court of Pakistan has at page 4 observed: "The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has not to determine the question of quantum or rate of rent, finally, if the same is in dispute, but to determine such amount 'approximately'. This is the clear import of the words underlined above. Further this excludes final adjudication of this question. In the premises the consequences of non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such noncompliance by striking off the defence and passing the order of eviction. If the argument of the respondent is accepted, then in every case the Controller would be competent to order ejectment of the tenant only on his final determination of the question as to quantum of arrears of rent or rate of rent. In the face of the clear language employed, such cannot be intent and effect of these subsections. Reference in this behalf may profitably be made to a passage from the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530). In this case the contention advanced was that the Controller was not bound to order eviction of the tenant even if any fact non-compliance of the tentative rent order was established. But could extend the benefit of section 114 of the Transfer of Property Act on equitable principles, to relieve the tenant of forfeiture of tenancy, if it was shown to him that the tenant was not in fact in arrears of rent at the time of execution of the proceedings. In construing the true import of section 13 (6) of the Ordinance, if it was observed by late Hamoodur Rehman, J.
14. (as he then was): 'Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection if not so much to afford the landlord and expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to correlatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)."
15. ' Similarly, when there was a dispute about the rate of rent between the parties, the Controller determined the rate tentatively for purposes of section 13 (6) and directed that this matter could be thoroughly proved in the main proceedings, when the parties adduced evidence in support of their respective claims. This approach of the Rent Controller was approved in Rustam G. Irani v.
16. Javed Qureshi (1975 SCM R 200). In Mushtaq Hussain v. Muhammad Shafi (1979 SCM R 496), this Court repelled a somewhat similar contention in the following words:-- "The order directing deposit of rent in its very nature under the statute aforesaid was based on a tentative view of the case and its obedience could be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
17. ' Reference is also made to Begum Capt. Mirza Ghulam Sarwar and another v. District Judge and others (1987 SCM R 25) where Supreme Court of Pakistan has observed: "The learned Judge held that the order under section 13(6) whereby the amount to be paid was fixed tentatively had to be deposited in Court subject to deducting the amount deposited in the Bank against receipts only. The question whether the petitioners were entitled to deduct any money from the rent on account of repairs and whether they had actually incurred the amount towards repairs was a plea that could only be taken finally to establish that there was no default in the payment of rent."
18. ' Admittedly the appellant has not deposited rent in terms of order dated 29-4-1995 passed under section 17(8) of Rent Act therefore there was failure to deposit amount of rent by the appellant/tenant hence no exception could be taken to the impugned order.
19. ' In view of the aforesaid reasons, facts and case law cited there is no merit in the contentions of the learned counsel for appellant and nothing has been pointed out whereby impugned order could be said to be against the provision of law therefore the appeal is dismissed in limine, consequently, CMA No, 1082/95 is also dismissed. However, the appellant is directed to hand over the vacant possession of the premises within thirty days subject to condition that he would deposit the rent with the Controller for the said period.