The appellant who is a tenant has 'assailed an order, dated 30th April, 1994 by virtue whereof ejectment was ordered under section 16(2) of the Sindh Rented Premises Ordinance, 1979 and directed to vacate and hand over peaceful possession within sixty days from the date of the impugned order.
The tentative rent order was passed in the following circumstances:
1. That on 24th January, .1993 an application was filed under section 16(1) of Sindh Rented Premises Ordinance, 1979 seeking directions to the opponents to deposit the rent in the Court w.e.f.
December, 1986 uptodate.
2. It is significant to point out that directions were sought against the opponents and not a single opponent. Said application was dismissed on 2-8-1993 on the grounds that the relationship of landlord and tenant was yet to be determined. Such an order was valid as regards respondent No. l who has all along stated that he was only a surety, but such order as against appellant was not correct. It is pertinent to point out that no other point/ground was urged against appellant who was opponent No.2 and joined the proceedings pleading that she is tenant after the intervention of Court. However, that order is being referred for the purpose of subsequent application.
3. Within a month another application was filed under section 16(1) of the Sindh Rented Premises Ordinance, 1979 and in that application order was passed by the same Rent Controller on 23-1- 1994. The operative part is as follows: "After hearing the arguments of learned counsel for the parties and after perusal the record. I am inclined to say that there is no bar to file second application on the same ground, under same section. The previous application was dismissed due to some technical error. Because surety is not bound or liable to pay the rent. Mst. Parveen Akhtar Begum who is the widow of Late Karim Bux the actual tenant admitted in her application under section 12(2) read with Order 1, Rule 10, C.P.C. Which is available on record. That her husband Karim Bux was the original tenant of the applicant till his death on May, 1984 and he was regular in payment of rent with the applicant. He also admits that she had not paid the rent at the rate of Rs.75 p.m. Since December 1986 because according to her applicant had refused to accept the rent when tendered by her through money order. By the admission of the applicant it is clear that he has not denied the relationship of landlord and tenant Habib Gul was only the surety of Karim Bux, therefore, he is not bound and liable to pay the rent as required and recovered by the applicant. Mst. Parveen Begum admitted that she has not paid the rent since December, 1986 and she hasgiven the application that applicant had refused to receive the rent, but her explanation is not justified in the light of record as available on the file of the Court.
She is defaulter in Payment of rent from December, 1986 to onwards. She is directed to deposit the rent in Court at the rate of Rs.75 p.m. From December, 1986 to onwards, as an arrears of rent within 30 days. She is further directed to pay the future rent at the same rate on-or before 10th of each calendar month.--- On 23rd February, 1994 a sum of Rs.7,200 was deposited by the appellant which was stated to be the arrears of rent from December, 1986 and future rent up to December, 1994.
5. On 9th March, 1994 an application was filed under section 16(2) of Sindh Rented Premises Ordinance, 1979. The application reads as follows:-- "It is prayed on behalf of the applicant above named that this Honourable Court may be pleased to strike off the defence of the opponent and the opponent Mst. Parveen Begum or any person/persons found in occupation and possession of the shop in question may be directed to handover the peaceful vacant possession of the same to the applicant as the opponent Mst.
Parveen Begum had violated and disregarded the Rent Order passed on 23-1-1994 and she has wilfully and deliberately failed to deposit the arrears of the rent within 30 days from the date of order. Under the well-settled principle of law, even one day default is sufficient for striking off the defence."
6. From the above application it will be noticed that no specific period was mentioned in relation to which the compliance of order dated 23-1-1994 was not made and specifically no mention has been made that the rent for the month of March, 1994 has not been deposited. In the impugned order before me it is stated by the Rent Controller as follows: "I have heard the learned advocate for the parties and perused the relevant record, specifically the report of Nazir and the tentative order dated 23-1-1994 in which the opponent was directed to pay the rent arrears from the month of December, 1986 to onwards within thirty days but the opponent deposited rent arrears of Rs.7,200 on 23-2-1994 and he has failed to deposit in main rent case for the month of March, 1994.
Nazir report also shows that the opponent remained fail to comply the tentative order as mentioned above. No explanation has been given by ,, the opponent for delay."
7. The learned Rent Controller has not even bothered to calculate as up to which period the sum of Rs.7,200 was deposited. She came to the conclusion that' the rent for month of March, 1994 was not deposited which was even not pleaded by the landlord, nor the Nazir in his report silted so. He only stated the amount.
8. Learned counsel appearing for the appellant has assailed the impugned order on the following pleas:
(a) That after passing an order on 2-8-1993 dismissing the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, subsequent application, dated 8th September, 1993 has been filed to review the orders passed earlier and the power to review is not available with the Rent Controller and by reviewing its orders the learned Rent Controller exercised the jurisdiction not possessed by him under the law.
(b) The power of review can only be exercised when the Legislature specifically confers such powers on the Court. According to him no power of review has been conferred on the Rent Controller, therefore, he had no jurisdiction and the order passed is patently void order.
(c) Even otherwise the tribunal has gone outside the jurisdiction in passing impugned order, as there was no default was committed by the appellant and the tentative rent order was complied by the appellant.
9. As against these contentions Mr. S. A.I Ahmed Tariq, learned Advocate for the respondent No.2 has urged that the Rent Controller can review the order under section 16 (1) of the Sindh Rented Premises Ordinance, 1979 if there is a technical mistake, however, he specifically conceded if there is no technical mistake the Rent Controller has no jurisdiction. According to him there was a technical mistake in its order passed on 2-8-1993, therefore, there was no bar in filing second application, nor there was any embargo on the Rent Controller to pass fresh order of tentative rent.
According to him there was one day default in compliance with the order dated 23-1-1994.
10. I have given anxious consideration to such pleas advanced by the parties. It will, therefore, be necessary to go into the facts of the case and find out whether the plea urged by the parties are tenable.
11. While going through the record I find that the first application was filed and directions were sought against the opponents and not specifically opponent No.1 who has denied the relationship of landlord and tenant. Grounds which were urged in the subsequent application were available to the landlord before the Rent Controller but not urged. Since it is admitted on the face of record by the opponent No.2 (appellant) that she is tenant, therefore, such orders could be passed against her but were not passed while disposing of the application on 2-8-1993 as such there were no bases for filing the second application. On the face of record since in the first application orders were sought against opponents which were refused, therefore, even there is no technical error as urged by the learned counsel for the respondent No.2 which may warrant review. Admittedly the subsequent order dated 23-1-1994 and the power to review (even on technical errors) is not available to the Rent Controller under the Sindh Rented Premises Ordinance, 1979. It is well- established (and in fact conceded by the learned counsel for the respondent No.2) that if there is no technical error order 'cannot be reviewed. This legal position is time honoured and is firmly embedded in our system of administration of justice.
12. On the facts of case admittedly on 23-1-1994 the order of the deposit was passed and the appellant was called upon to deposit the rent within one month. Learned counsel for the respondent No.2 stated that there is one daydefault. It is well-settled law that the day on which order is passed is not to be counted. In this case the limitation would start from 24-1-1994 which will come to an end on 23-2-1994 and the deposit was made on 23-2-1994 as such the default of one day as urged is not available on record as such contention of learned counsel for the respondent No.2 is not valid.
13. It is surprising that the learned Rent Controller on her own came to the conclusion that the rent for the month of March, 1994 has not been deposited. She even did not calculate the amount deposited in the Court in the compliance with the order. It was also not prayed that the default has been committed for the month of March, 1994. Learned Rent Controller is a judicial officer, and it is expected that all judicial officers shall pass the orders after applying their mind and do not give mechanical findings, which are based upon surmise or conjecture. Even otherwise when the application was filed on 9th March, 1993 learned counsel for the respondent No.2 specifically conceded that he could not have mentioned that the appellant has not deposited the rent for March, 1994 as for such period rent will be due by 10th April, 1994. The mechanical findings based upon surmises and conjectures are not warranted in law as the Courts, created under the law and rules, are bound to pass judicial orders and their findings must be sustainable on record. They are servants of the law and they have to act within the parameters of law and the rules, which create and vest authority in such Courts. If they pass wrong orders in such eventuality they travel outside the jurisdiction arid act as despots and such course is not permissible in our system of dispensation of justice.
14. According to the learned counsel for the appellant he has deposited the I rent up to December, 1994 such statement has not been controverted by the learned counsel for the respondent No.2.
The findings of the Rent Controller that there was a default as rent for the months of March, 1994 was not deposited is only imaginary and not borne on record.
15. Lastly, the learned counsel for the respondent No.2 urged that the appeal is time-barred.
Needless to say that I have already held that the order of review is not available to the Rent Controller as no power of review has been conferred on her The orders, therefore, on the face of it are void orders and it iswell-settled legs; principle that the limitation does not run against the void orders.
Consequently, therefore, this appeal is allowed and it is held that no default has been committed by the appellant and the order passed by the Rent Controller on 23-1-1994 and the ejectment order dated 30-4-1994 are void orders which are set aside and it is further held that no default has been committed by the appellant. The case is remanded back to the Rent Controller for the decision on merits.
Since the matter is an old matter, it is expected that the Rent Controller shall proceed with the matter expeditiously after due notice to the parties.