' MUHAMMAD BASHIR JEHANGIRI, J.---This judgment will dispose of Civil Petitions Nos. 530 of 1998 and 532 of 1998 filed by the petitioner against the respective respondents whereby these two petitions were dismissed by a common judgment dated 12-3-1998 passed by a learned Judge in Chambers of the High Court of Sindh at Karachi.
2. The dispute relates to the Shops Nos. 5 and 7 situated on Plot bearing No, BC-10, Block 9, Scheme No,5 Kehkashan Clifton, Defence Housing Authority, Karachi (hereinafter referred to as the demised premises) at the rent of R8.8,000 per mensem excluding electricity, telephone and conservancy charges. The respondents filed ejectment applications under section 24 of the Cantonment Rent Restriction Act (XI of 1963) (hereinafter called as the Act) on the grounds of default in payment of rent, personal bona fide requirement and impairing the utility of the demised premises. The petitioner-Corporation traversed these assertions in their written replies. During the pendency of the petitions before the learned Rent Controller, the respondents sought the striking off the defence of the petitioner-Corporation by way of an application under section 17(9) of the Act on the assertion that the petitioner-Corporation had deliberately and intentionally violated the order for depositing tentative rent dated 1-3-1997. The learned Rent Controller who was seized of the matter allowed the application for striking off the defence of the petitioner-Corporation.
3. Feeling aggrieved, the petitioner-Corporation preferred an appeal. It was contended on behalf of the petitioner before the learned Single Judge in the High Court that a sum of Rs,440 out of agreed rent of Rs,9,680 per mensem used to be deducted by the petitioner-Corporation on account of withholding tax as required by section 50(7)(b) of the Income Tax Ordinance (XXXI of 1979)
(hereinafter referred to as the Ordinance) and that, therefore, the petitioner-Corporation was not guilty of default in payment of rent.
4. The learned Single Judge in Chambers of the High Court after hearing the learned counsel for the parties and reviewing the case-law cited before him, dismissed the appeal filed by the petitioner before him on the following reasoning: "On careful consideration I find no force in the submissions of the learned counsel for the appellants. The impugned order particularly the tentative rent orders cannot be termed as void because the learned Rent Controller had the jurisdiction to pass the same and he had not acted in a manner inconsistent with due process. Furthermore, in order to avoid the consequences of penal provisions appellant could have taken advantage of sectipn 85(2) of the Income Tax Act, 1979 by making proper application regarding payment of tax instead of violating the tentative rent order which was binding on them. In the judgment reported as Mrs. Hazarbai Merchant and another v.
Muhammad Ismail (1984 SCM R 406) it was held by a Full Bench of the Hon'ble Supreme Court as follows:-- 'Without going into other controversies raised by the learned counsel it is sufficient for present purpose to mention that admittedly the petitioners did not deposit all the rent due for a period of three.Years but deducted an amount of Rs,1,409.68 claimed by them as having paid towards Government and K.M.C. Taxes in respect of the premises. In our view, the petitioners were not entitled to deduct this amount and did so at their risk and peril inasmuch as the claim of the petitioners for refund of the amount was subject to adjudication by a competent Court or authority.
The law clearly required them to deposit all the rent due in order to escape the consequences of ejectment by the Rent Controller.'
' In Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others (1987 SCM R 25) the Hon'ble Supreme Court did not interfere with the decision of striking off the defence of the petitioner/tenant when he failed to comply with the orders of the Rent Controller to deposit rent as directed. (See also Raja Aurangzeb v. The Additional Rent Controller, Lahore Cantonment and 2 others (1985 SCM R 876) (1985 SCM R 876).
' The upshot of the above discussion is that these appeals having no merits are dismissed. The appellants are directed to hand over vacant possession of the demised premises within 90 (ninety) days but that will be subject to payment of rent regularly as directed by the learned Rent Controller."
' Hence, these two petitions for leave to appeal.
5. The learned counsel for the petitioner in support of these petitions contended.
' Firstly, that the basic order for deposit of monthly tentative rent at the rate of Rs,9,680 per mensum without deduction of income tax at source was violative of and contrary to "express provisions of section 50(7-B) of the Ordinance" and, therefore, the order of deposit of the monthly rent was suffering from serious legal infirmity; ' Secondly, that the mandatory tax deduction at source, in terms of section 50(7-B) of the Ordinance read in conjunction with subsection (8)(ibid) would be deemed to have the effect of payment of tax by the payee and, therefore, the deposit of the rent "to the extent of short-fall in time by the tenant obviated the penal consequence of striking off his defence". Reliance was placed on Muhammad Amin v. Ghulam Nabi and two others (PLD 1990 SC 1201); and ' Thirdly, that 'default' if any, in the given circumstances was neither wilful nor contumacious inasmuch as the petitioner-Corporation had deposited all the deductions of withholding tax in the account of the respondent on 19-5-1997 and, therefore, the default was merely technical and deserved to have been condoned in the discretionary jurisdiction of the learned Rent Controller.
Reference was made to Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty and 2 others (PLD 1961 SC 119)
6. In the case of Muhammad Amin (supra), ratio decidendi deducible is that the object of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, (VI of 1959) is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. Further, that in interpreting 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 (IV of 1882) of evicting a tenant by merely serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. It would, thus, be noted that in this case only the object of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was highlighted and rationale beyond this provision was under-scored and nothing was held on the proposition raised before us. In the latter case of Lt.-Col. Nawabzada Muhammad Amir Khan (supra) none of the citations support the proposition raised by the learned counsel for the petitioner and both the cases are, thus, not attracted in the case in hand. The proposition agitated before us in this petition, namely, whether a tenant not depositing all rent due for period of three years but deducting certain amount claimed by him as having been paid towards Government and municipal taxes in respect of the premises is entitled to deduct was not guilty of default of complying with the order of depositing tentative rent. This proposition has been settled by this Court in the case of Mrs. Hazarbal Merchant and another v. Muhammad Ismail (1984 SCM R 406) and held as under:-- "After hearing the learned counsel at length we are inclined to agree with the concurrent finding of the two Courts below on the admitted facts of the case that the petitioners have counted default in the payment of rent due to the respondent/landlord.
' Without going into other controversies raised by the learned counsel, it is sufficient for present purpose to mention that admittedly the petitioners did not deposit all the rent due for a period of three years but deducted an amount of Rs,1,409.68 claimed by them as having been paid towards Government and K.M.C. Taxes in respect of the premises. In our view the petitioners were not entitled to deduct this amount and did so at their risk and peril 'inasmuch the claim of the petitioners for refund of the amount was subject to adjudication by a competent Court or authority.
The law clearly required them to deposit all the rent due in order to escape the consequence of ejectment by the Rent Controller. There was, therefore, clear default established against the petitioners and the order of ejectment passed against them is not open to exception. The petition, therefore, is without substance and is accordingly dismissed."
7. In view of the direct autlibrity on the proposition that a tenant who did not deposit the rent due for a period of three years in compliance with the order of tentative rent but deducted certain amount claimed by him as having been paid towards Government or municipal taxes in respect of premises would not be enough to absolve him from the penal consequences of section 17 of the Act.
8. Another plea advanced on behalf of the petitioner that short deposit in the monthly tentative rent had occurred due to the bona fide apprehension of penal consequences in case of non- deduction of withholding tax at source which ought to have been condoned. Similar plea raised in Raja Aurangzeb and others v. The Additional- Rent Controller, Lahore Cantonment and 2 others (1985 SCM R 876) was repelled by a learned Division Bench holding as under:-- "The first plea advanced before us was not even raised by the petitioners before the Rent Controller. In fact, as pointed out by the High Court in the impugned judgment petitioners did not show 'any valid ground acceptable in law as to why the rent directed has. Been short-deposited'. It was not the case of the tenants that the tentative order was not properly conveyed or understood by them. It was also not the case that the tenants were prevented from making the deposit on any ground beyond their control. In this view of the matter, the default clearly stood proved and in the absence of any satisfactory explanation offered in support of admitted short-deposit, the Courts below acted with competence and well within jurisdiction in striking off the defence of the present petitioner's."
9. This being the case of the petitioner-Corporation before us, we find no substance in these petitions and, therefore, dismiss both of them.
10. At this stage, learned counsel for the petitioner-Corporation prays that at least nine months' time may be granted to the petitioner-Corporation to seek alternate accommodation for their business and vacate the demised premises.
11. On the peculiar facts of this case, we are impressed with this plea. We, therefore, direct that warrant of petitioner-Corporation's eviction from the demised premises shall not issue for nine months from today provided the petitioner-Corporation deposits all rent due and also future rent for nine months in advance in Court. On his failure to hand over the premises to the landlord after nine months, he shall be evicted with police-aid without further notice.