' This first appeal is directed' against the order of the learned Rent Controller VIII, Karachi South, in Rent Case No,453 of 1993 (Mst. Rukhsana Kiran v. Budha Suria), dated 16-5-1996, under section 16(2) of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance), whereby the learned Rent Controller struck off the defence of the appellant/tenant for non-compliance of the order dated 26-3-1995 under section 16(1) of the Ordinance.
2. The facts germane to these proceedings are based on the application filed by the respondent seeking eviction on the ground of (i) default of payment of rent from 1-7-1991 to 28-2-1993, (ii) personal and bona fide need of the respondent's husband to establish his own business. The respondent claimed as owner/landlady of Shop No,a-3/B (1-A) ground floor on Plot No,25/1, Sheet No, AM Artlery Maidan, Frere Road, Karachi (hereinafter referred to the premises). She acquired the said premises by way of gift by her mother made on 30th June, 1991. The premises was under the tenancy of the appellant at monthly rental of Rs,225. The appellant was informed by donor viz previous landlord by letter dated 30-5-1991 intimating the transfer in favour of the respondent by way of gift. The respondent also served notice on the appellant under section 18 of the Ordinance requiring him to pay the rent to respondent. The said notice was served on 29-8-1991. The appellant failed to pay the rent with effect from July, 1991. The rent w,e,f, 1-7-1991 to 28-2-1993 was due at the time of filing the application which was filed on 22-3-1993. The premises was also required for personal and bona fide need of the respondent's husband to establish his own business of type writer repairs and its allied business.
3. That the appellant in his written reply, maintained that he is tenant in the premises in terms of the agreement dated 31-7-1988 at monthly rental of Rs, 175 with Mst. Amina with fixed deposit of Rs,4,00,000. He has no knowledge if the shop in question has been gifted to anyone. He maintains that rent was enhanced at Rs,225 w,e,f, March, 1990. He denied the default as alleged in the eviction application as well as personal and bona fide requirement. He maintained that further enhancement of rent was demanded by the respondent/appellant under the compelled circumstances, he was constrained to send the rent for the months of July, August, 1991 through money order, but applicant refused to accept the same thereafter he started depositing the rent in Miscellaneous Rent Application No,1215 of 1991.
4. On 1-9-1993 affiit-in-evidence was filed with documents on behalf of the respondent on the same day i,e, 1-9-1993. An application under section 16(1) of the Ordinance was filed for an order directing the appellant to deposit the rent in Court w,e,f, 1-1-1991 to 31-8-1993 at the rate of Rs,225 p.m. And also future monthly rent.
5. The application was opposed by the appellant, the plea taken by the appellant was that ownership of the premises was disputed/doubtful whether it ,tood in the name of Mst. Amina Sheerin (previous owner) and/or Mst. Rukhsana Kiran (respondent) for want of the documents and the enhancement of rent was also sought from Rs,225 to Rs,500 p.m. Under the compelling circumstances and as a safety measures, he started depositing the rent in M.R.C. No,1215 of 1991 with Nazir at 225 p.m. w,e,f, July, 1991 and maintained that he is regularly depositing the rent in Court. He denied that he is in arrears.
6. The learned Rent Controller by order dated 26-3-1995, passed under section 16(1) of the Ordinance, directing the appellant for deposit of arrears of rent w,e,f, 1-7-1991 to 30-11-1994 within 30 days, future monthly rent before 10th of each calendar month. The operative of the order reads as under:-- "In these circumstances, I, therefore, direct the opponent to deposit Rs,9,225 towards the rent for the period from 1st July, 1991 to 30-11-1994 at the rate of Rs,22'5 per month within 30 days from the date of this order. I further direct that the rent for the November, 1994 be deposited before 10th of December, 1994 and thereafter the opponent should continue to deposit the monthly rent on or before 10th of each calendar month.
7. The respondent moved an application under section 16(2) of the Ordinance, on 16-5-1995, with the request that defence of the appellant be struck off as he neither deposited the arrears of rent within 30 days of the order nor deposited the future tent in Court on or before 10th of every month.
8. The appellant in opposition to the application has reiterated the same ground, which he had taken while opposing the application under section 16(1) of the Ordinance. He further maintainect that he has already deposited the rent in the name of Mst. Rukhsana Kiran (respondent) in M.R.C.
No,1215 of 1991 in compliance of the e-under section 16(1) of the Ordinance; the. Denied the non- compliance of the order dated 26-3-1995.
9. The learned Rent Controller after hearing the learned counsel for the parties, - struck off the defence of the appellant on account of non-compliance of the order and directed the appellant to vacate and hand over the peaceful vacant possession of the premises to the respondent within 120 days from the date of the said order viz. 16-2-1996. The concluding part of the order is reproduced as under:-- "So far as argument advanced by the learned counsel for the opponent that he is depositing rent in M.R.C. As such he has not committed default has no merit in this respect it is suffice to say that rent order was passed after hearing and considering the objection filed by the opponent, therefore, the direction contained in the rent order was in the specific knowledge of the opponent as such there was no justification for opponent to continue depositing the rent in M.R.C. In doing so, the opponent has acted in his own will and complete disregard of the order of this Court dated 26-3-1995.
Deposit of rent, if any by opponent in M.R.C. Contrary to the direction of this Court dated 26-3-1995 and cannot be termed as technical default as mentioned above the opponent failed to deposit arrears of rent as well as future monthly rent in terms of rent order as such the application under section 16(2) of Sindh Rented Premises Ordinance, 1979 filed by the applicant is allowed resultantly the defence of the opponent is hereby struck off."
' Hence this appeal.
10. I have heard Mr. Muhammad Iqbal Choudhry, learned counsel for the appellant and Ms. Mumtaz Sultana, learned counsel for the respondent.
11. Mr. Muhammad Iqbal Choudhry has raised manifold contentions before me. His first contention is that the learned Rent Controller could not have passed an order of deposit of rent in terms of section 16(1) (ibid) before deciding preliminary question as to the existence of relationship of landlord and tenant for want of jurisdiction as the ownership was disputed by the appellant in his written reply as well as opposing the application moved by the respondent under sections 16(1) and 16(2) (ibid). The second contention of Mr. Muhammad Iqbal Choudhry, learned counsel for the appellant is that the order passed by learned Rent Controller under section 16(1) is illegal and its non-compliance will not entail penal consequences. The third contention raised by him is that the appellant was depositing the rent in M.R.C. 1215 of 1991 in the name of previous landlord and the respondent as such non-compliance of the order under section 16(1) could be a technical default which does not warrant penal consequence of striking off the defence of the appellant. He lastly contended that the order under section 16(1) was passed without hearing the appellant and the Rent Controller could have given adjustment of the Pugree paid by the appellant.
12. As to the first contention, namely, that the preliminary issue regarding the existence of the relationship of landlord and the tenant should have been decided by the learned Rent Controller before passing the rent order. The learned counsel for the appellant contended that in absence of the decision of the relationship the order passed by the learned Rent Controller will be without jurisdiction. He referred the case of A.M. Qureshi v. Government of Sindh, 1991 SCMR 1103; wherein, it was held that once the question of relationship of landlord and tenant has been raised, the Rent Controller was bound to determine such question as a prerequisite for passing the tentative rent order. The case 'referred by the learned counsel for the appellant is distinguishable with the case in hand. In A.M. Qureshi's case, the appellant had denied the relationship of landlord and tenant whereas in the present case the appellant has admitted the receipt of letter of change of ownership but taken the same as false. Even the appellant has deposited the rent in Court in the name of the respondent as well. He himself has admitted the tenancy in respect of the premises. In such circumstances the learned Rent Controller has addressed this issue while passing the tentative rent order. The learned counsel for the respondent conversely contended that the learned Rent Controller has touched this issue while passing the order. She referred the case of Razak Mills Store v. Mian Chambers, 1993 MLD 1557, wherein it was held that when a plea of want of requisite notice under section 18 is taken before the Rent Controller, the Rent Controller may adjudicate upon it in a summary manner with or without framing a preliminary issue. The learned Rent Controller has addressed this plea in the following lines, before directing the appellant for deposit of rent:- "The opponent stating in his objection that the ownership of the premises was disputed/doubtful whether it stood in the name of Mst. Amina Shirin wife of Rashid Ahmed or Mst. Rukhsana Kiran wife of Muhammad Akhlaq for want of title documents. He further states that he is depositing the rent in MRC No,1215 of 1991 and annexed the photocopies of such deposit receipts in the name of previous landlady Mat. Amina Shirin (mother of applicant). The applicant has claimed the ownership of the property by way of gift, made by her mother. In para. 4 of the ejectment application it is stated that applicant's mother also intimated the opponent vide letter dated 30-6-1991, 'about the transfer of the property in favour of the applicant by way of -oral gift. In para. 5 of the ejectment application it is further stated that the notice under section 18 of the Sindh Rented Premises Ordinance, 1979 was also served upon the opponent. The applicant has filed the photocopies of declaration of gift, the copy of the letter of attornment, copy of the notice and even the reply of the notice dated 9-9-1991.
Notice for the change of ownership is a sufficient compliance of the requirement under section 18 of the Sindh Rented Premises Ordinance, 1979."
Non-service of notice in terms of section 18 of the Ordinance, sent by registered post acknowledgment itself will not be sufficient to hold that relationship of landlord and tenant did not exist between the parties. I am fortified in my view from cases (i) Syed Azhar Imam Rizvi v. Mst.
Salma Khatoon 1985 SCMR 24; (ii) Muhammad Yousaf v. Mirajuddin, 1986 SCMR 751 and (iii) Mst.
Kulsoom Begum v. Muhammad Siddiqi, 1991 CLC 1134.
13. Second contention canvassed before me by the learned counsel for the appellant is that the learned Rent Controller has committed illegality while passing the tentative rent order directing the appellant to deposit future rent before 10th of each succeeding month. He contended that learned Rent Controller has no jurisdiction to curtail a single day. He further contended that by directing "before 10th" learned Rent Controller has curtailed a day thus the illegality committed by the learned Rent Controller will not be of penal consequence, as the appellant was not required to comply the direction being illegal and void. He also referred the case of Ali .Jri v. Shujauddin, PLD 1985 Karachi 698. The contention raised by the learned counsel for the appellant is fallacious and devoid of any force. The operative part of the tentative rent order has been reproduced by me in para. 5 ante, it contains direction to deposit (i) arrears of rent and (ii) future rent. The learned Rent Controller directed the appellant to deposit the arrears of rent for the period from Ist July to 30-11- 1994 within 30 days from the date of the order. Further, direction for the deposit of arrears of rent for the month of November, 1994 by 10th of December, 1994. For future rent, the learned Controller directed the appellant to deposit the monthly rent on or before 10th of each calendar month. At the most it could be said that the Rent Controller has not given direction for arrears for the months of December, 1994 to February, 1995. The defect pointed out in the order of Rent Controller is not such, which could render the whole of the order as void so that its non-compliance could be ignored. The observations of Saeeduzzaman Siddiqi, J. In case of Sheikh Fazal Din v. Dawoodur Rehman and others 1983 CLC 470, may be referred, wherein, the contention was raised that as the first part of the order of Rent Controller relating to arrears of rent was not in accordance with law, the whole order should be held defective. The contention was repelled: "As best the result of failure on the part of the Court to specify the date for deposit of the arrears of rent by the Rent Controller would be that in the event of default of tenant in depositing the arrears of rent in Court, the defence of the tenant could not be struck off for such noncompliance but for that reason the non-compliance of a valid direction of Rent Controller with regard to payment of monthly rent could not be ignored."
14. The third contention raised by the learned counsel for the appellant is that the appellant was &positing retire in M.R.C. No,1215 of 1:91 in the name of previous landlord as well as the respondent, as such it is a technical default, the same has to be ignored.
15. The learned counsel for respondent has contended that the appellant has failed to comply with the tentative rent order passed by the Rent Controller, as such the noncompliance of that direction alone would render the appellant liable to have his defence struck off. In support of her contention, she referred the case of (i) Ghulam Hussain v. Mst. Roshin Bibi 1986 SCMR 1714; (ii) Hussain Trading Co. v. M/s. Jalal Brothers (Pvt.) Ltd., 1994 SCMR 159 and (iii) Dr. Shafiq Ahmed v. Mst. Surraya Sultana 1996 CLC 399.
16. In the cases of Ghulam Hussain and Hussain Trading Co. The Hon'ble Supreme Court refused to grant special leave to appeal on the plea that the tenant was depositing rent in the M.R.C. Filed by him though no rent was deposited as directed under the provisions of section 16(1) of the Ordinance.
17. In the last case, a learned Single Judge of this Court held that non-compliance of the tentative rent order of the Rent Controller, the tenant renders himself liable to be ejected and the appeal was dismissed. In the present case, the appellant even after the tentative rent order passed by the learned Rent Controller failed to comply with the direction and has not deposited the rent in the case under appeal though he continued to deposit the rent in M.R.C. Filed by him, as such the appellant has not complied with the directed passed by the Rent Controller under the provisions of section 16(1) of the Ordinance, as such the default cannot be termed to be a technical one and the same is not condonable. It was further contended by the learned counsel for the appellant that the appellant had deposited a sum of Rs,4,00,000 and the same could not have been adjusted by the learned Rent Controller and in support of his contention he referred the case of Munawar Begum v.
Mst. Alqab Begum 1983 CLC 1548, wherein the deposit was adjusted and the default was condoned.
The case referred by the learned counsel for the appellant is distinguishable with the facts of the present case. In the aforesaid case the deposit was admitted and after giving adjustment, there was no default on the part of the landlord. So far as in the present case, the deposit is not admitted by the respondent.
18. On the last leg, it has been contended that the appellant was not able to comply with the direction, as he had no notice of the order passed under section 16(1) of the Ordinance. This plea has no leg as for the first time it has been taken at the appellate stage. Even such plea was not taken before the learned Rent Controller, as from the perusal of the order passed by the Rent Controller, it appears that order under section 16(1) was passed after hearing the learned counsel for the parties.
19. None of the foregoing objections to the tentative order of the deposit of rent, therefore, appears to have been validly taken rendering the order under section 16(1) of the Ordinance to be unlawful so as to nullify the consequence of the order for striking off the defence under section 16(2) of the Ordinance.
20. For the aforesaid reasons, I find no justification to interfere with the impugned order. The appeal is, therefore, dismissed. The appellant/tenant is allowed six months' time to vacate the premises provided he deposits rent during the last period as already required.