1. ' This appeal is directed against the order dated 17-2-1998 passed by the Learned VIth Senior Civil Judge and Rent Controller Karachi (South) whereby the Respondent No,1 's Application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Ordinance) was allowed and upon the Appellant's defence being struck off thereto, he was directed to handover vacant and peaceful possession of the demised permises to the respondent within one month of the date of the order.
2. ' The brief facts of the matter are that admittedly the appellant was put into possession of the demised premises by respondent No,1 vide Lease Agreement dated 31-10-1994 at the agreed rent of Rs,7,000 per month for a period of six months effective from 1-11-1994. No advance rent was paid by the appellant, however, an amount of Rs,13,500 was paid to the respondent as Security Deposit which was to be refunded to the Appellant upon vacation of the demised permises, Thereafter, as stated in the memo. Of appeal, the parties entered into an Agreement to sell dated 26-11-1994 whereby allegedly the respondent agreed to sell the demised premises to the appellant for a sum of Rs,16,00,000 and accordingly a sum of Rs,4,00,000 was paid as earnest money to the respondent by the Appellant. It was mutually agreed between the parties that the balance of the amount of the sale price i,e,, Rs,12,00,000 would be paid by 26th of February, 1995. Thereafter, the appellant contained to pay the monthly amount to the Respondent up till July 1996 and during this period kept on asking the Respondent to execute the registered sale-deed which was avoided by the latter on one pretext or the other. Finally the Respondent with mala fide intentions filed Rent Case No,1084 of 1996 before the VIth Senior Civil Judge and Rent Controller Karachi (South) seeking the appellant's ejectment from the demised premises on the basis of non-payment of rent for the period January 1995 to March 1996 and also on the ground of personal requirement. A Written Statement was filed by the appellant wherein it was stated that he had paid the rent upto July 1996 and pursuant to the Agreement to Sell between the parties he had also paid a sum of Rs,4,00,000 only to the respondent as part payment of the full sale consideration of Rs,16,00,000. Thereafter, an application was filed under section 16(1) by the Respondent praying that the arrears of rent from the month of January 1995 to July 1996 in the sum of Rs,1,33,000 be deposited with the Learned Rent Controller in reply to which the stand taken by the appellant was that he in fact had paid rent upto July, 1996 in support of which rent receipts were attached in which case the- instant application was not maintainable. The learned Rent Controller however, vide order dated 31st March, 1997 directed the Appellant to deposit the arrears of rent amounting to Rs,1,89.000 from June 1995 to March 1997 at the rate of Rs,7,000 per month and also to deposit further rent from July 1997 at the same rate on/or before the 10th of every calendar month. However, it was specifically ordered by the Rent Controller that the disputed amount of Rs,1,33,000 i,e,, being rent from January 1995 to July 1996 would not be withdrawn by the Appellant till disposal of the rent case.
3. ' Thereafter, the respondent moved an Application under section 16(2) of the Ordinance whereby he prayed that the appellant's defence be struck off as he had failed to comply with the terms of the Rent Order and consequently vacant and peaceful possession of the demised premises may be given to him i,e,, the Respondent. In reply thereto, the appellant pleaded that the interest on the amount of Rs,4,00,000 lying with the respondent since November 1994 may be applied towards his obligation in terms of the rent Order passed by the learned Rent Controller and future rent may also be adjusted from the deposited amount. Similarly an application was filed by the appellant praying that the Rent Order may be modified on the basis that the deposited amount of Rs,4,00,000 be adjusted towards the appellant's obligation in terms of the rent order.
4. ' However, as mentioned above, the learned Rent Controller rejected the pleas of the appellant and allowed the respondent's application under section 16(2) of the Ordinance.
5. ' I have heard both the Learned counsel and my conclusion are as follows:-- ' In a nut shell the issues before this Court are as to the powers of a Rent Controller and the limits of the inquiry to be carried out by him while passing a Rent Order under section 16 (1) of the Ordinance. The other issue is whether in the circumstances of the case the relationship of Landlord and Tenant existed between the parties.
6. ' As to the issue regarding relationship of landlord and tenant between the parties Learned counsel for the appellant has submitted that the agreement to sell between the parties had been produced before the learned Rent Controller therefore, this relationship stood established by virtue of section 53 (a) of the Transfer of Property Act and as such the Appellant's title as transferee of the premises should have been accepted by the learned Rent Controller in which event there could have been no question of passing the impugned order and the rent case should have been dismissed. On the other hand learned Counsel for the respondent has argued that as regard this issue, it was very faintly pleaded in the written statement filed in the Trial Court by the appellant and in fact given up by him as evidenced by his reply filed to the application under section 16(1) of the Ordinance and in his Application to modify the rent order in which it was specifically prayed that the alleged amount of Rs,4,00,000 lying with the respondent be adjusted towards the appellants obligation in terms of the rent order. In my opinion learned Counsel is correct in the assessm ent of these documents as in the Written Statement itself as per para. 1 thereof only a passing reference has been made to the allegation that the parties have entered into a sale transaction regarding the rented premises. Even in the prayer clause the appellant has desired that his tenancy be continued. So also in his reply to the application under section 16(1) of the Ordinance and for modification of the rent order the appellant has prayed that the interest on the deposits plus the amount itself may be adjusted towards his obligation under the rent order. In my view this sufficiently establishes that this issue was never seriously raised by the appellant and I consequently hold that the parties were in the relationship of landlord and tenant at the relevant time.
7. ' As regard the next issue whether the Rent Order was lawfully passed by the learned Rent Controller, learned counsel for the appellant submits that the rent receipts produced by the appellant before the Rent Controller were ignored by him and consequently the Rent Order suffers from a patent illegality. Alternatively the learned counsel for the appellant has stressed that in any event the learned Rent Controller should have allowed the appellant's application for modification of the Rent Order to the extent of allowing the amounts so far paid to the Respondent against the alleged sale transaction to be adjusted against the Appellant's liability to pay the requisite amount as per the Rent Order. In this regard learned counsel for the appellant has relied upon M.Q.
8. Industries v. Bapai Kailkhusro (PLD 1968 Karachi 589), Ikramuddin v. Syed Mahboob All (PLD 1978 Kar. 145), Mst. Rasheed Jehan v. Muhammad Ashfaque (1991 MLD 2619).
9. ' On the other hand learned counsel for the respondent has maintained that in the facts and circumstances of the case no exception can be taken to the Rent Order passed by the learned Rent Controller particularly when he had disallowed the Respondent/Landlord from withdrawing the amounts which according to the Appellant/Tenant had been tendered as rent to the respondent.
10. Consequently learned counsel has again fully supported the impugned order passed under section 16(2) of the Ordinance whereby the appellant was directed to vacate the rented premises by the learned Rent Controller. In support of his contentions learned counsel has relied upon, Dr. Arshad Kamal Khan v. Mrs. Saeeda Khalid Kamal Khan and others (1993 SCMR 1360); Dr. Shafique Ahmed v. Mst. Surraya Sultana (1996 CLC page 399); Abdul Aziz v. Yahiya and 4 others (1993 MLD 1447); Naseem Ahmed v. Senior Civil Judge and Rent Controller and another (PLD 1982 Karachi 210); Chaudhry Rahimuddin v. Chaudhry Jalaluddin (PLD 1991 SC 484).
11. ' After having reviewed the case-law submitted by both the learned counsel and having heard their arguments I have come to the conclusion that in the circumstances of the case the learned Rent Controller came to the correct conclusion when he passed the tentative Rent Order particularly as he did not allow the Respondent/Landlord to withdraw the disputed amount of rent from the Court. It would be seen that the inquiry, conducted by the Rent Controller before passing an order under section 16(1) of the Ordinance is at best a tentative one and the final determination of the rate of rent and arrears has to be decided after the close of the entire evidence and arguments. The nature of this summary inquiry differs from case to case and dependents entirely on the facts and circumstances of each case. However, it was entirely in his discretion to determine as to what type of summary inquiry he would make. Nevertheless such inquiry has to be conducted after giving a fair hearing and in a judicious manner. The facts of the present case were totally disputed i,e,, the Respondent/Landlord had denied both the receipt of rent as well as alleged sale of the property to the appellant/Tenant. Consequently, in my view the learned Rent Controller passed a fair rent order after hearing both the sides and no exception can be taken to the same. In this regard reference can be made to the case of Chaudhry Rahimuddin v. Chaudhry Jalaluddin.
12. (Supra).
13. As regards the order under section 16 (2) directing the appellant to vacate the premises for not complying with the earlier Rent Order, in my opinion too no exception can be taken. I have earlier held that in the circumstances of the case the tenant cannot challenge the relationship of Landlord and tenant between the parties and hence was bound by the tenancy Agreement brought on the record. Consequently the appellant should have complied with the tentative Rent Order particularly in view of the fact that it was an admitted position between the parties that no rent was paid after July 1996. In my view, therefore, this appeal has to be dismissed and I accordingly do so with directions to the appellant to hand over vacant possession of the rented premises to the respondent within one month from today.