1. ' The appellant/tenant has filed the appeal under section 21 of the Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) against the order dated 24-7-1999 passed by learned Rent Controller IVth, Karachi East, in R.C. No,497 of 1996, whereby the application filed under section 16(2) of the Ordinance was allowed and-the appellant was directed to hand over vacant possession of the premises to the respondent within 60 days of the order.
2. ' The facts leading to the appeal are that the respondent is the landlady-of the premises situated on Plot = No,DP=6, Sector 21, Korangi Township, Korangi. Industrial Area, Karachi admeasuring 1000 sq.Yds. (hereinafter referred to as the premises) which was rented out to the appellant, a private limited Company, under registered tenancy agreement dated 27-2-1994 effective from 1-1-1994 for three years at the agreed rate of rent of Rs,17,900 per month. It was further agreed that the rent would be enhanced to Rs,18,950 per month w,e,f, 1-1-1995 and at the rate of Rs,20,000 per month w,e,f, 1-1-1996. It was case of the respondent that the rent was payable in advance by 5th of every calendar month. It was her case that the appellant turned to be'a chronic defaulter in payment of rent and during 1994 paid rent at the rate of Rs,17,000 per month instead of agreed rate of Rs,17,900 after defaulting to pay rent for several months and never paid rent on fixed dates in the agreement. The total amount of rent paid by the appellant during the year 1994 was Rs,1,36,000 instead of Rs,2,14,800 leaving unpaid amount of Rs,78,800. During the year 1995, the appellant was required to pay rent at the rate of Rs,18,950 per month but he continued to pay at the rate of Rs,17,000 per month and made shortage of Rs,1,950 in payment of every month. The total amount of rent paid during the year 1995 was Rs,85,000 instead of Rs,2,27,400 leaving unpaid balance of Rs,1,42,400. It was also her case that during the year 1996, the appellant paid nothing by way of rent and after numerous requests he paid only a sum of Rs,40,000 on 2nd July, 1996 though he was liable to pay -at the rate of Rs,20,000 per month w,e,f, - 1-1-1996 thus failed to pay balance amount of Rs, 1, 00 ,000 as rent due from 1-1-1996 to 31-7-1996.
3. ' The respondent also alleged violation of the agreement alleging that the appellant has caused structural alteration by disturbing roof of measuring 8' x 6' which has caused and diminished the value and utility of the premises. It was also alleged that possession has been handed over to some unauthorised person without permission and consent thus the appellant has sub-let the premises. On the above facts, the application under section 15 of the Ordinance was filed.
4. ' The appellant contested the application by filing written statement, and controverted the allegations. He admitted the tenancy agreement dated 27-2-1998 but maintained that on 15-8- 1994, the respondent executed another agreement with the appellant on the terms and conditions and covenant contained therein and also let out small portion of the premises and also delivered the possession in consideration thereof by receiving a sum of Rs,2,50,000 for which separate receipt was executed by the respondent and the rate of rent of whole premises was also increased and fixed at Rs,20,000 per month. The appellant became tenant of entire premises. It was denied that the appellant ever committed any default in payment of rent. It was pleaded that the statement of rent due per Annexures B-1, B-2 and B-3 are false, frivolous and incorrect. The respondent throughout regularly received rent up to 15-8-1994 at the rate of Rs,17,900 and thereafter w,e,f, 15-8-1994 up to September, 1996 at the rate of Rs,20,000 per month and issued such receipts. On 2-7-1996 the respondent received rent for the month of July, 1996 and September, 1996 amounting to Rs,60,000 from the appellant. The respondent demanded further a sum of Rs,2,50,000 as additional deposit and increase in rent at Rs,25,000 w,e,f, October, 1996. The said demand of the respondent being illegal and unreasonable the appellant refused to accept the same. It was their case that in the first week of October, 1996, the appellant tendered rent but was refused. Thereafter the appellant has started depositing rent since October, 1996 in-MRC No,629 of 1996 and rent has been deposited up-to-date and there is nothing due on account of- rent.
5. ' During the proceedings, the respondent-landlady moved an application under section 16(1) of the Ordinance for direction to appellant for deposit arrears of rent as well as future rent by alleging that the appellant has failed, avoided and neglected to pay the rent as detailed in Annexures B-1 to B-3 to the application and has fallen into huge arrears as under:-- "(i) Paid rent at Rs,17,000 p.m. Instead of the agreed rent of Rs,17,900 p.m. For 8 months only in 1994 and leaving an unpaid balance of Rs,78,800 from January to December, 1994.
(ii) Paid rent at Rs,17,000 p.m. Instead of the agreed rent Rs,18,950 p.m. For 5 months only in 1995, leaving an unpaid balance of Rs,1,42,400 from January to December, 1995.
(iii) Paid lump sum of Rs,40,000 i,e, only 2 months rent Rs,20,000 on 2-7-1996, accumulating the unpaid balance of Rs,1,00,000 for 5 months during January to July, 1996.
(iv) Unpaid arrears of rent from-1-8-1996 to 30-11-1996 (4 months) @ Rs,20,000 p.m. In the sum of Rs,80,000 for the months of August to November, 1996.
6. ' As such it was claimed that the appellant is in arrears of rent in total sum of Rs,4,01,200 till 31st November, 1996 and the direction was sought in the following terms.
7. "(a) to deposit the said aggregate amount in the sum of Rs,4,01,200 (rupees four lac one thousand two hundred only), being the arrears of rent up to 30-11-1996;
(b) to continue to deposit monthly rent @ Rs,20,000 for and from December, 1996 in Court, on or before the 10th of each month following the month to which it relates;
(c) to withdraw the amounts so far deposited in Miscellaneous Rent Case No,629 of 1996 and re- deposit the same in this case.
8. ' The appellant contested the application by filing objections supported by affidavit wherein it was pleaded by the appellant that initially rate of rent of tenement up to 15-8-1994 was Rs,17,900 per month and the appellant has regularly paid rent at the said rate up to 15-8-1994 for which the respondent issued rent receipt to the appellant. Photocopy of the receipt for the month of January to 15-8-1994 was also annexed as A-1 to A-5. It was further pleaded that on 15-8-1994 an agreement was executed between the parties and the respondent received a sum of Rs,2,50,000 as deposit and issued separate receipt and rent was increased at the rate of Rs,20,000 per month.
9. It was pleaded that the rent at the rate of Rs,20,000 per month has been paid regularly up to September, 1996 for which the applicant has issued receipts which were also annexed as Annexures C-1 to C-11. The respondent refused to receive onward rent of the tenement w,e,f, October, 1996. Under these circumstances, rent is being deposited in above MRC from October, 1996 and the rent is paid uptodate and there is nothing due. Copies of challan were also annexed as Annexures D-1 to D-7.
10. ' Rejoinder to the counter-affidavit of the appellant was filed wherein the respondent has denied the execution of second agreement or receipt on 15-8-1994 or on any other date. It was asserted that the said agreement has been fabricated and her signature has been forged thereon. She also maintained that tenancy agreement dated 272-1994 is registered and not liable to be varied, modified, altered, superseded or annulled by unregistered document of doubtful, validity and genuineness. She maintained that office of the opponent has been issuing vouchers receipt acknowledging delivery of rent receipt. These were signed by her husband S.Rizwan Ali and never by her. A debit voucher dated 13-8-1995 acknowledges receipt of rent for the month of November, 1994. She further denied that the appellant has paid rent up to November, 1996 as alleged. It was maintained by her that the application for deposit of rent was filed on 17-12-1996 and objections were required to be filed on 4-1-1997. The appellant took 9 adjournments, during the period of four months and said period, however, appears to have been utilised for unfair document, stamp paper, fabricated agreement and false receipt forging her signatures and fraudulent attestation.
11. ' Learned Rent Controller after considering the respective contentions, by order dated 15-7-1998 allowed the application and directed the appellant to deposit arrears of rent amounting to Rs,4,01,200 within 90 days from the date of order and the respondent was not allowed to withdraw the rent so deposited till final disposal of the main application. The rent deposited w,e,f, October, 1996 at the rate of Rs,20,000 per month and onward was deemed as the rent deposited in this case.
12. The appellant was further directed to continue to deposit monthly rent in MRC at the rate of Rs,20,000 per month in the name of the respondent on or before 10th the ok calendar month till disposal of the case. The learned Controller adverted the respective contentions, concluded as under:-- "Reverting to the application under section 16(1) of S.R.P.O. 1979, regarding the arrears of rent which according to learned counsel for the applicant have accumulated at Rs,4,01,200 up to 30-11-1996 and further a sum of Rs,1,00,000 as fallen due for the period from 1-12-1996 to 30-4-1997 (5 months) giving rise to the arrears of rent to a total sum of Rs, 5,01,200 as arrears of rent up to 30-4-1997. The opponent has relied upon the rent receipts filed with his objections with regard to payment of monthly rent from January, 1994 to 15-8-1994 at the rate of Rs,17,900 per month and after the execution of alleged agreement and receipt also relied upon the rent receipts w,e,f, 16-8-1994 to 30-9-1994 at the rate of Rs,20,000 per month and further rent receipts from October, 1994 to September, 1996 at the rate of Rs,20,000 per month. It is further plea of the opponent that from October, 1996 applicant refused to receive the monthly rent and rent was deposited in RC No,629 of 1996 in Court at the rate of Rs,20,000 per month and the said challan receipts have been placed on record as Annexures D-1 to D-7 and according to learned counsel for applicant there is no dispute regarding payment of rent from October, 1996 to onward at the rate of Rs,20,000 p.m. But the opponent has managed false rent receipts and forged the signature of the applicant on agreement and receipt of Rs,2,50,000 allegedly executed on 15-8-1994 and according to learned counsel for applicant the mode of payment was debt voucher an applicant did never issue any rent receipt(s) as alleged and placed on record and further prayed that the arrears of rent may be ordered as prayed and applicant may be forbidden from withdrawing the same."
13. ' The appellant filed an application under section 20 of the General Clauses Act for review of the order dated 15-8-1998 whereas the respondent filed an application under section 16(2) of the Ordinance for striking off the defence of the appellant. By the impugned order the learned Controller allowed the application under section 16(2) of the Ordinance and dismissed the application under section 20 of the General Clauses Act. The learned Controller was of the view that the appellant has failed to comply with the order dated 15-7-1998 by not deposit of the arrears and consequently defence of the appellant was struck off. Hence the present appeal.
14. ' I have heard the learned counsel for the parties at Katcha Peshi stage for final disposal of the appeal.
15. ' Learned counsel for the appellant has canvassed three grounds in support of the appeal (i) that the appellant has produced rent receipt for the entire period from January, 1994 to September, 1996, which was orally denied by the landlady without producing any documents evidencing the rent or non-tender of rent. Under the circumstances, the rent receipt produced for the period of default alleged could not be ignored and no observation has been made by the learned Controller about the genuineness or otherwise of the receipt produced by the appellant. He further contended that learned Rent Controller was required to hold summary inquiry before passing the order which was not undertaken by the learned Controller, (ii) the payment of rent for the month of January 1994 is proved through registered tenancy agreement produced by the respondent wherein receipt for the month of January, 1994 was acknowledged and under no circumstances the rent for the month of January, 1994 can be said to be due and (iii) the rent for the month of October, 1996 to November, 1996 deposited by the appellant was treated to be valid tender of rent, that the learned Rent Controller without giving adjustment of the said period (January 1994, October, 1996) directed the appellant to deposit arrears of Rs,4,01,200 inclusive of rent for the months of January, 1994, October and November, 1996, thus the rent order dated 15-7-1998 was vague and uncertain order, thus illegal and non-compliance thereof would not entail any penal consequences and the defence of the appellant cannot be struck off in non-compliance of the order which is illegal and contrary to law. '
16. ' Adverting to the first contention raised by the learned counsel for the appellant that the tenant has produced the receipt of entire period from January, 1994 to October, 1996. This fact was orally denied by the respondent without producing any receipt of rent of the said period. The learned Controller, without recording any tentative finding on the receipts, has directed the appellant for deposit of rent, thus, has failed to pass the judicious order. To support his contention, he placed reliance on (i) Nasir Kamal Pasha v. Muhammad Ismail Khan PLD 1983 Kar. 129 and Muhammad Ayub Khan v. Mst. Shama Khalid 1994 CLC 1522. In former case it was held that the discretion vested in the learned Rent Controller to pass tentative rent order is judicious discretion, which must be exercised in accordance with the material facts on record after holding summary inquiry as he may deem fit to determine the arrears of rent due. The summary inquiry envisaged by section 16(1) of the Sindh Rented Premises Ordinance does not empower the Rent Controller to ignore documentary evidence brought to his notice without coming to the conclusion that such documentary evidence was prima facie false.
17. ' In above case the appellant had produced rent receipts said to be issued by son of the respondent, who according to the appellant, used to collect the rent from him, as such mere denial of the respondent that the said receipts were not issued by him was not sufficient to ignore the said receipt completely without affording the appellant to prove the said receipts.
18. ' In the later case somewhat in similar circumstances, learned Single Bench of this Court held that the appellant had produced photocopies of three receipts issued by the respondent and as such mere denial of the attorney of the respondent that the said receipts were not issued by the respondent or the signature of the respondent was forged was not sufficient to ignore the receipts completely without affording opportunity to the appellant. The observation of the learned Controller that the matter requires consideration and this question also requires consideration if the opponent was in arrears from January, 1986 when he comes with case that the amount was not filed in the year 1986 or 1987 or 1988, thus, the order of the rent was found to be vague and uncertain order.
19. ' Conversely, learned counsel for the respondent's submission was that the learned Refit Controller has considered the receipts, no procedure for summary inquiry has been laid down and the Rent Controller under section 16 of the Ordinance is empowered for summary inquiry as the Controller deems fit to make. Thus sufficient discretion has been vested in the Controller without specifying the procedure for determining the rent by the summary inquiry. Once the Rent Controller has referred the receipts, it will amount to considering the receipts for the purpose of summary inquiry and contended that the learned Controller was within the right to ignore the receipts produced by the appellant, which were denied by the respondent. To support his contention regarding summary inquiry, he referred the case of Naseem v. Senior Civil Judge and Rent Controller PLD 1982 Kar.
210. He further contended that the order passed by the learned Controller was tentative in nature and he was not required to determine the quantum or rate of rent finally if the same was disputed but was required to determine such amount approximately.
20. ' It has also been canvassed by the learned counsel for the respondent that the Supreme Court in Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 has determined the nature of order passed under section 16(1) of the Ordinance as tentative and approximate after examining the provisions of section 16 of the Sindh Rented Premises Ordinance in the following words:-- "It is true that some unnecessary change has been made in the use of words in section 13(6) ; of the repealed Sindh Rent Restriction Ordinance, 1959, but for the present discussion no practical difference has been made in the re-enacted law. The determination of the rent under section 16 also has to be tentative and approximate. Firstly, it is for a temporary purpose of the Controller regulating rent payment during the proceedings only. It has no effect on the prior period or the period after the rent proceedings including the appeal stages. Secondly, its determination is in a summary manner. Thirdly, if the Controller embarks upon the full trial of the issue regarding.
21. Rate/arrears of rent without which final determination would not be fair or even possible, it would frustrate one of the purposes of this provision of the law itself, viz. The speedy disposal of the cases.
22. In that event a considerable time would be consumed on this issue without it in the meanwhile the Controller having any power to regulate the payment of rent by the tenant. And lastly, the final determination of the rent has been made possible by subsection (3) of section 16. It is not correct to say that this provision deals only with the disposal but also beneficial to the parties. There are no barring words indicating that the Controller will not be able to determine the due rent finally, after the stage of the tentative determination. The use of the words like: 'determine' and 'due' in the above light do not lead to the conclusion that it is in the context of finality necessarily and not 'tentativeness' . The omission in this behalf can legitimately be supplied as the intention is very clear and the omission seems to be inadvertent. First question is answered accordingly."
23. ' Mr.Rehanul Hasan Farooqi with vehemence has contended that right from Ghulam Muhammad Lundkar v. Safdar Ali PLD 1967 SC 530 wherein the Supreme Court interpreted the provisions relating to -the default in depositing the rents in terms of a tentative rent order passed by the Rent Controller and ruled that 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.
24. ' He further contended that the Supreme Court has not changed the above view and has been reaffirmed in subsequent cases. It was contended by him that the appellant had no option but to comply with the order to get the privilege/protection as tenant.
25. No doubt the learned Controller was not required to determine the rent due finally for the purpose of deposit of rent due which could be approximate but such order should be judicious order and after considering all the material placed on record. The Rent Controller on the basis of statement which was not even maintained in the ordinary course of business, has ignored the receipts allegedly issued by the respondent without affording an opportunity to them and without recording its tentative finding regarding genuineness thereof. Applying the rule laid down in case of Nasir Kamal Pasha and Muhammad Ayub Khan (supra) I am of the view that the tentative rent order passed by the Rent Controller cannot be said to be a judicious order in terms of section 16(1) of the Ordinance. In Syed Ahsan Ali v. Jafar Ali PLD 1964 Kar. 418 the Division Bench of High Court (West)
26. Pakistan Karachi has held that if an order for deposit of rent and future rent having not been passed in conformity with the law the tenant is not liable to be evicted for non-compliance of the such defective order. The relevant observation is as under:-- "A similar question was considered by us in Second Appeal No,99 of 1964. That was a case, under West Pakistan Urban Rent Restriction Ordinance, 1959. The language of both the provisions of law being of a penal nature must be strictly followed. If orders in respect of the arrears and future rents are not passed in strict conformity with its provisions, the tenant is not liable to be evicted for not complying with a defective order."
27. ' It may also be pointed out that in Maula Bux v. Muhammad Hussain 1983 CLC 277 the learned Single Judge of this Court ruled that tenant whose defence has been struck off on account of non- compliance of the order in deposit of rent is entitled to show that the order was invalid and, therefore, its non-compliance cannot result in his eviction. It is also well-settled that no appeal lies against the interlocutory order passed by the learned Controller but it will be open to the termt to challenge such order fin appeal and there is no estoppel against the appellant to raise plea that the order for deposit of rent being illegal and without jurisdiction its noncompliance will not result in eviction.
28. ' Learned counsel for the appellant has also assailed the tentative rent order that the rent for the month of January, 1994 was acknowledged and the rent for the months of October, 1996 to November, 1996 deposited by the appellant was treated to be valid tender of rent by the learned Controller thus direction to the appellant to deposit arrears of rent of Rs,4,01,200 inclusive of rent for the months of January, 1994, October and November, 1996 as well without giving adjustment in respect of the aforesaid period renders the order as defective and not in conformity with law. He referred Aftab Ahmed v. Zaibun Nisa 1998 SCM R 2085, wherein it was held as under:- "There was another element in the order of tentative deposit, which needs to be addressed here.
29. Such comprised of the fact that, while the learned Controller allowed credits for the deposits in the miscellaneous rent case, she (because it was Mrs.Akhtar A.Chaudhry who was the then incumbent) did not work out the actual deposits then available in the miscellaneous rent case. In that behalf As well the tentative rent order was defective and could not be made the basis of striking off the tenant's defence. Such orders are required to quantify the amounts lying deposited in miscellaneous or other proceedings and nothing is to be left to the vagaries of chance or the follow up uncertainties of calculation."
30. ' Learned counsel for the respondent has fitstly denied that the rent for the month of January, 1994 was not tendered but when his attention was drawn to the Registered \Rent Agreement, wherein the respondent has acknowledged the receipt of the rent for the month of January, 1994, then he abandoned this plea and contended that since the tentative rent order was approximate, it could be less or more and if the Rent Controller directed the appellant to deposit rent for the months of January, 1994, October, 1996 and November, 1996, it will not make the order defective nor the appellant can plead that he is not required to comply such order. In my view the contention of the learned counsel for the respondent is not tenable. Learned Controller was required to give adjustment in respect of rent already paid and deposited in Court which has not been done. As such it cannot be said that the order is unexceptional.
31. ' It could be argued that the appellant could have complied with the order of deposit of arrears of rent by excluding rent for the months of January, 1994, October and November, 1996 to avoid default. In my view the order cannot be bifurcated as held in Moheenul Haq v. Zulekhan 1979 CLC 650.
32. ' In my view the tentative rent order passed by the learned Controller directing the appellant to deposit arrears of rent w,e,f, January, 1994 to November, 1996 completely ignoring the receipts produced by the appellant without affording the opportunity to the appellant on mere demand by the respondent accepted the statement which was not maintained in ordinary course of business.
33. Secondly, without giving adjustment of the rents already paid and acknowledged for month of January, 1994 and deposited in. MRC No,629 of 1996 for the months of October, 1996 and November, 1996, directed the appellant to deposit the arrears of rent as such the order under section 16(1) is not only vague, jmproper but defective as well non-compliance thereof would not entail the penal consequences.
34. The provisions of subsection (2) of section 16 of the Ordinance are penal in nature. Non- compliance of the order passed under subsection (1) of section 16 entails penalty by way of summary ejectment. In these circumstances, it is well-settled that the order passed under this provision should be in strict compliance with the provisions of subsection (1) of section 16. Any deviation or departure from the said provision will disentitle the landlord from seeking ejectment for non-compliance. No penalty can be imposed on tenant for noncompliance of an order which has not been passed in accordance with the provisions of law.
35. For the aforesaid discussion, the order of the Controller passed on 18-7-1998 is a vague order and is accordingly set aside. Consequently, the order dated 24-7-1999 passed by the learned Controller is also set aside. I will, therefore, remand the case to IVth Rent Controller Karachi East to pass fresh order under section 16(1) of the Ordinance. Resultantly, the appeal is allowed, however, the parties are allowed to bear their own costs.