P L D 1983 Karachi 192 (PLP)

The appellant above-named, being aggrieved by order dated 15-10-1980 of the learned 1st Rent Controller, Karachi, passed in Rent Case No. 357/79, by which the appellant's defence was struck off and he was directed to vacate the premises in his occupation and hand over its possession to the respondent, has filed the above appeal on the following facts and grounds :

2. That the respondent above-named is the landlord of the single-storeyed house built and constructed on Plot No. 52-T, Block No. 2, P. E. C. H. S., Karachi, and the appellant is his tenant with respect to the said premises at a monthly rental of Rs. 325.

3. That the respondent above-named filed ejectment application against the appellant for his eviction from the above-said premises on the grounds of default and personal requirement. As regards the default, it was alleged, that the appellant was in arrears of rent since July, 1976, and that he had failed and neglected to pay the said arrears of rent. On the ground of personal requirement, the respondent stated, that he required the case premises in question for the use and occupation of his son Perwaiz Iqbal, whose marriage was scheduled to take place soon.

4. That in the written statement, filed by the appellant the allegations of the respondent were denied and it was submitted, that appellant was regularly paying the rent upto June,'1979 at the rate of Rs. 350 per month, as per agreed terms between the parties, and that he was in possession of the Receipts of payment of rent made to the respondent and his son, whoever came to collect the rent. It was further submitted, that actually the respondent wanted to increase the rent from Rs. 350 to Rs. 600 per month and on not acceding to his request, the respondent had filed the said ejectment application. It is further submitted that as per the established practice between the parties, the said rent receipts ace for cumulative 2 to 4 months,

5. That thereafter on an application under section 16(1) of the Sind Rented Premises Ordinance, 1979, filed by the respondent, the learned Rent Controller by his order dated 21-5-1980 was pleased to direct the appellant to deposit the arrears of rent at the rate of Rs. 325 per month, from July, 1976 to May, 1980, amounting to Rs. 15,275, as claimed by the respondent, within 3 months of the said order and further to continue- to deposit the future monthly rents with effect from June, 1980 before 10th of each succeeding month. While passing the above-said orders, according to appellant, the learned Rent Controller completely failed to take into consideration the plea set up by the appellant in his written statement and in the objection to the respondent's application under section 16(1) of the said Ordinance and further completely denied any opportunity to the appellant to adduce evidence to prove the genuineness of the said rent receipts, as the same were disputed by the respondent.

6. That thereafter the appellant moved an application for review of the above-said rent order dated 21-5-1980 on the ground, that since the genuineness and authenticity of the said rent receipts had not been challenged by way of counter-affidavit or otherwise by the respondent, it would not be in the interest of justice to order the appellant to pay the rent again for the same period. However, by orders dated 25-8-1980, .the learned Rent Controller, dismissed the above-said review application filed by the appellant.

7. That during the pendency of the review application the wife of the appellant gave a sum of Rs. 325 to the learned Advocate for deposit towards the rent for the month of June, on or before 10-7-1980, but the said Advocate failed to deposit the same under the bona fide belief, that the review application was still pending and non-compliance of the rent order dated 21-5-1980, would not entail any penal consequences for the appellant.

8. That thereafter on an application under section 16(2) of the Sind Rented Premises Ordinance, 1979 filed by the respondent above-named, the learned Rent Controller by his order dated 15-10-1980, was pleased to strike-off the defence of the appellant on the sole ground, that the appellant had not furnished any explanation as to what was the pressure and the circumstances which prevented him from complying with the tentative rent order dated 21-5-1980, and as such the discretion could not be exercised in his favour.

9. The appellant above-named being aggrieved by the impugned order dated 15-10-1980 has filed the above appeal, on the ground mentioned in the memo of appeal.

10. The learned Advocate for the appellant in rent order, which is the basis of the impugned order in question cannot legally be sustained, as the learned Rent Controller failed to take into consideration the receipts of payments, made upto July, 1978 and as such non-compliance of the said order on this ground alone is liable to be set aside. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1961 Lah. 410.

11. The learned Advocate for the respondent on the other hand submitted, that there was a clear non-compliance of the tentative rent order and as such the learned Rent Controller was fully justified in passing the impugned order. In support of this contention the learned Advocate for the respondent relied upon case reported in P L D 1978 Kar: 79. 12. 1 have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned order in question, and orders passed on respondent's application under section 16(1) of the Sind Rented Premises Ordinance, 1979 dated 21-5-1980.

13. The main contention of the learned Advocate for the appellant before me was, that the tentative rent order dated 21st May, 1980 cannot legally be sustained as the learned Rent Controller without any cogent reasons and without giving any opportunity to the appellant to prove the rent receipts in his possession in respect of the payment of rents upto July, 1978, on the mere denial of the respondent, that he had not issued the said receipts, directed the appellant to deposit arrears of rents from July, 1976 upto 30th June, 1979 has great force. In- this connection, in my opinion the discretion vested in the learned Rent Controller to pass a tentative rent order is a judicial descretion, which must be exercised in accordance with all 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 Sind Rented Premises Ordinance, 1979 does not empower the learned Rent Controller to ignore the documentary evidence brought to his notice, without coming to the conclusion, that the said documentary evidence was prima facie false. In the present case the appellant had produced rent receipts duly issued by the son of the respondent, who according to the appellant, used to collect rents from him and as such mere denial of the respondent that the said receipts were not issued by him, was not sufficient to ignore the said receipts completely, without affording opportunity- to the appellant to prove the said receipts. In the present case it is obvious that the learned Rent Controller, accepted the word of the respondent in preference to the documentary evidence produced by the appellant, which in my opinion was not justified, specially as there was vast difference between the period of arrears as claimed by the respondent and as admitted by the appellant. The monthly rent of the premises is Rs. 325 per month and consequently en account of this difference between the parties, a substantial amount was ordered to be deposited by the appellant, which in fact left no option with the appellant, but to make himself liable for ejectment on account of non-payment of amount mentioned in the tentative rent order. In this connection the reasoning given in case reported in P L D 1961 Lah. 410, for fixation of tentative rent orders is fully applicable to the present case, in my opinion. The case relied upon by the learned Advocate for the respondent, no doubt supports the contention of the learned Advocate for the respondent, but in the said case there was no dispute regarding either the quantum or the period of the arrears of rents and as such the facts of the said case are completely different from the facts of the present case and therefore in my opinion the case relied upon by the learned Advocate for the respondent is not applicable to the present case at all.

14. Therefore, in view of my above conclusions, I set aside the impugn order dated 15-10-1980 as well as tentative rent order dated 21st May, 198 of the learned Rent Controller and remand back the case to the learned Rent Controller to pass fresh orders under section 16(l) of the Sind Rented Premises Ordinance, 1979, after giving full opportunity to the appellant to adduce evidence in respect of alleged payments of rents made by him to they respondent upto July, 1978 on the basis of the rent receipts, which are in? his possession and thereafter to pass the necessary orders on respondent's application under section 16(1) of the Sind Rented Premises Ordinance, 1979, after taking into consideration all the deposit of rents that may have been made by the appellant, after filing of the ejectment application in question.

15. The learned Rent Controller is further directed to pass orders on respondent's application under section 16(1) of the Sind Rented Premises Ordinance, 1979 within 6 weeks from the receipt of the copy of this order and to dispose of the main ejectment application thereafter on merits in accordance with law, within 4 months from the receipt of the copy of this order. In view of the facts and circumstances of the above appeal, I pass no order as to costs. M? Y. H. Case remanded.