1988 PLP 1297 (MLD)

This Re‑,7sion Petition is directed against the judgment dated 30‑7‑1987 and decree dated 12‑8‑1987 passed by District Judge, Karachi East whereby he affirmed the judgment dated 24‑12‑1986 and decree dated 4‑1‑1987 passed by the VIIth Senior Civil Judge, Karachi East. The facts leading to the filing of the above revision are that the respondent is the owner and landlady of a house No.1081, P‑I.B. Colony, Karachi and the petitioner was a month to month tenant in respect of western portion thereof at the monthly rental of Rs.225. The respondent filed suit being No.2441 of 1984 against the petitioner for recovery of Rs.13,

275. The respondent pleaded in her plaint that the petitioner had not paid rent since August, 1979. The respondent stated that he had filed rent case No.3182 of 1980 against the petitioner on the grounds of default; subletting and personal requirement. The petitioner filed written statement in that rent case wherein he denied the allegations of default, subletting and personal requirement. The petitioner took a plea that the rent of the premises in his possession was Rs.125 per month. The Controller allowed the eviction application vide order dated 7‑4‑1984. The Controller determined the rate of rent at Rs.225. The petitioner filed First Rent Appeal being No.470 of 1984 in this Court. During the pendency of the appeal the petitioner files, a statement that he had vacated the premises m his possession on 1‑6‑1984. On the basis of this statement the appeal was dismissed on 16‑9‑1984 as having become infructuous. The petitioner filed written statement wherein he took the plea that the rate of rent was Rs.125 per month. It was further alleged that he was depositing rent at the rate of Rs.125 in Miscellaneous Rent Case No.3521 of 1980. The learned Civil Judge framed appropriate issues, and found that the rent was payable from August, 1979 till 30th June, 1984 at the rate of Rs.225 amounting to Rs.13,

275. The petitioner being aggrieved against the judgment and decree of the trial Court preferred Civil Appeal No.9 of 1987. The learned District Judge taking into consideration the arguments advanced by the learned counsel for the parties dismissed the appeal vide judgment dated 30‑7‑1987. The petitioner filed the present revision application. I have heard the learned counsel for the parties. The point of law which arises for determination m this revision is whether the respondent can take advantage of section 14 of the Limitation Act, 1908 by reason of earlier proceedings (Rent Case No.3127/81) and thereby save the limitation. The respondent instituted suit No.2441 of 1984 (new No.112 of 1985) presented on 8‑7‑1984 for recovery of Rs.13,

275. The case in the plaint was inter alia that the petitioner paid rent upto 31‑7‑1979 and thereafter he failed. neglected to pay the rent from 1‑8‑1979 and onward to the respondent. The respondent filed Rent Case No.3182 of 1980 against the petitioner on the ground of default. The petitioner filed written statement in that rent case wherein he took the plea that he was tenant at the rate of Rs.125. The learned Controller found that the petitioner was a defaulter as having failed to pay rent from 1‑8‑1979 and determined the rate of rent at Rs.225 vide eviction order dated 7‑4‑1984. The petitioner filed F.RA. No.470 of 1984. During the pendency of the appeal, the petitioner handed over the possession of the premises to the respondent. The appeal was dismissed by order dated 16‑9‑1984 as having become infructuous. It is contended that no part of the respondent's claim is barred by limitation as the respondent had been prosecuting an earlier proceeding with due diligence and good faith. Mr. Abdul Karim Siddiqui, the learned counsel for the petitioner has submitted that the proceedings must have failed on the ground of want of jurisdiction or other defect of like nature. On a careful consideration of the respective contentions of the parties I find that the Controller decided the eviction application on merits. In my view the claim of the respondent in the prior eviction application has been adjudicated upon and disposed on merits. It can hardly be said that the eviction proceedings filed in 1982 were altogether misconceived or that the jurisdiction of the Controller was under any infirmity or there was any defect of jurisdiction or any defect of like nature which prevented the Controller from entertaining the eviction application. A Division Bench of this Court in the case of Nasim Ahmad v. Senior Civil Judge and Rent Controller and another P L D 1982 Kar.210 held that, section 16 of Sind Rented Premises Ordinance, 1979 provides for a summary enquiry as the Controller deems fit for determination of the arrears of the rent due. It was further held that: "The final determination of the rate of rent and the arrears are to be decided after the entire evidence of the parties has been led and arguments have been heard. It would be incorrect to say that section 16 being mandatory in terms requires the Controller to finally determine the arrears of rent due by making only summary enquiry during the pendency of eviction proceedings. Such an interpretation will work contrary to the provisions of law. There are instances where in ejectment case the main dispute relates to the rate of rent and the period of default. For such cases a proper procedure has been provided under section 19 of the Ordinance." It also appears to me that the cause of action in the suit being a claim for arrears of rent by itself is separate. There will be a decree in favour of the respondent/plaintiff for Rs.8,

000. The learned counsel for the petitioner submits that the petitioner has deposited a sum of Rs.6,000 in Miscellaneous Rent Case No.3521 of 1980. The petitioner is directed to deposit Rs.2,000 with the Nazir of this Court within a fortnight from today. The petitioner is also directed to withdraw the rent deposited by him and deposit with the Nazir of this Court within one month from today. In the result, the revision is disposed of on terms stated above. In the circumstances of the case the parties shall bear their own costs. M.Y.H./A‑321/K Order accordingly.