1983 PLP 1152 (SCMR)

Date of hearing :15th August, 1983. NASIM HASAN SHAH J: In pursuance of the petition for ejectment filed by the respondent‑landlord against the petitioner herein, the Rent Controller passed an order of deposit under section 16(1) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to the Ordinance), which to the extent relevant is reproduced hereunder :‑‑ "Both the parties counsel are present. The applicant has claimed arrears of rent w.e.f. June, 1980 up‑to‑date @ Rs. 2,000 p.m. From the other side rate of rent is disputed. The period is not disputed It is only contended by the learned counsel for the opponent that rate of rent is Rs. 1,000 p.m. From the other side, the letter from opponents have been produced which reveals that rate of monthly rent is Rs. 2,

000. The matter requires evidence to be brought on the contentions of the parties. In view of the above reasons, and with consent of the opponents counsel, I direct the opponents to deposit arrears of rent from June, 1980 to May, 1981 i.e. for 12 months amounting to Rs. 24,000 @ Rs. 2,000 p.m. within three months of this order. The opponent is further directed to deposit monthly future rent commencing from June 1981 on or before 10th July, 1981 @ Rs. 2,000 p.m. and so in future till final disposal of the case. However, looking to the contention of the opponent the applicant is only entitled to withdraw amount @ Rs. 1,000 p.m. and rest of the amount is withheld till further orders." The tenant having failed to comply with the terms of the above order his defence was struck off by the learned Rent Controller vide his order, dated 12‑1‑1983 and he was directed to hand over vacant possession of the disputed premises to the landlord within a period of one month. The appeal filed against the said order before the High Court having failed, hence this petition for leave to appeal. Mr. Mansoor Ahmad Khan, learned counsel for the petitioners submitted before us that subsection (3) of section 16 of the Ordinance contemplates the final determination of the rate of rent and the arrears of rent which are in actual fact payable after the close of the entire evidence and arguments. Since, according to him, the agreed monthly rent of the premises was Rs. 1,000 p.m. and the petitioners had been depositing Rs. 2,000 p.m. there was no default and that the amount deposited in Court did not only cover the rent, to which the landlady was entitled but was in excess of her entitlement. It is contended that both the Rent Controller and the High Court erred in law in holding that the default had been committed within the meaning of section 16(2) of the Ordinance and in any case the provisions of subsection (2) of section 16 of the Ordinance should be read along-with the provisions of subsection (3) of section 16, which, as earlier submitted, contemplate final determination of the rate of rent and arrears after close of the entire evidence and arguments. Any other construction of subsection (2) of section 16, it is added, would amount to nullifying of subsection (3) of the same section, inasmuch as if the defence of the tenant is struck off and he is ejected from the premises before the close of the case on merits and before the final determination of the rate of rent and arrears, the opportunity of any final determination of the rate of rent and the arrears as contemplated in subsection (3) of section 16 would not arise. It is further submitted that to consider this contention this Court has already granted leave to Nasim Ahmad v. Senior Civil Judge Rent/Controller No. 1, Karachi and another C. P. S. L. A. No. K‑152 of 1981 and the said order is reported in 1983 S C M R

204. We have heard Mr. K. A. Wahab, learned. counsel ‑ for the Caveator, in reply. We feel that although the question raised is, no doubt, of some importance on the legal plane but the same does not really arise in the facts and circumstances of the present case and that, in any event, this is not a fit case for grant of leave to appeal. We find that the order under section 16(1) of the Ordinance was passed with the consent of the parties ; that in point of fact there was really no dispute about the. rate of the rent, which was Rs. 2,000 p.m. and that ever-since the application for striking off the defence of the petitioner was filed by the respondent‑landlady the petitioner has not deposited any rent at all. As for the legal question raised, the same is under consideration of this Court and will be decided therein which appears to be more apposite case, in which the question raised, needs to be decided. In conclusion, this petition must fail and is, accordingly, hereby dismissed. . S. Q. Petition dismissed.