1989 PLP 1285 (CLC)

Meanwhile on 15‑2‑1988 the present respondent riled an application under section 16(2) of the Ordinance for striking off the defence on the ground that compliance of the order dated 14‑1‑1988 was not made. The notice of this application was given to the other side who filed their objections taking the same pleas and in addition it was stated that the Advocate Mr. A. Kalam had advised them to deposit the monthly rent only at Rs.3,000 and they had been depositing the rent in Court through their Advocate and that they have already filed a criminal case against their advocate. The learned Rent Controller after hearing the arguments of the Advocates of the parties was pleased to pass the impugned order striking off the defence of the appellant which has now been challenged in this appeal. I have heard Mr. Ashraf Khan Tanoli, Advocate for the appellant, he has mainly argued on the following points:‑

1. That the rent is Rs.3,000 per month for the housing unit while Rs.2,500 per month as the charges for fixtures and fittings and, therefore, the order dated 14‑1‑1988 passed by the learned Controller is without lawful authority and is not maintainable in law. The non‑compliance of the said order is not to be visited with the penalty.

2. The default if any was on the ground of the conduct of the counsel who did not inform the appellant and that he did not deposit the rent in Court although he had been receiving the same from the appellant. As far as the first point is concerned Mr. Ashraf Khan Tanoli, has drawn my attention to the agreement of tenancy, the terms and conditions of which according to him continue to bind the parties. 1t will be advantageous to reproduce some of the contents of the agreement which reads as under:‑ "Whereas the Lessor has agreed to let out and the Lessee has agreed to take on lease Housing Unit No.l‑A in Hassan Homes on Plot No.FL‑3, Block‑5, Clifton Karachi, consisting of three bedrooms, with attached baths, drawing, dining, kitchen, garage, one servant quarter, alongwith lawn (hereinafter referred to as "the said Housing Unit") for office premises. Now, therefore, this agreement witness as follows:‑ (1) The term of the lease shall be for eleven months commencing from..‑‑At the expiry of the term of the lease, i.e. after eleven months thereafter, the lease may be renewed only if the Lessor agrees in writing and only on such terms and conditions as may be agreed to between the Lessor and the Lessee. (2) The rent :or the said Housing Unit shall be Rs.3,000 (Rupees Three thousand only) per month and Rs.2,500 (Rupees two thousand five hundred only) will he for fittings and fixtures, payable for the full eleven months in advance." From this he emphasises that the rent for the housing unit being Rs.3,000 he was liable to pay only that much, as regards the remaining Rs.2,500 which are according to him monthly charges for fixtures and fittings which were never provided to the appellant and, therefore, appellant is not liable to pay the same. He has also referred to a legal notice allegedly issued on 1‑12‑1986 by the appellant to the respondent in which the above position was reiterated and it was claimed that the fixtures and fittings were never supplied although the appellant had been paying the charges upto 31‑10‑1986. He has emphasised that these are .the charges for something which was not the integral part of the premises in dispute but something additional just like furniture etc. and as the same not have been supplied to him, he was not liable to pay. It is very surprising to note that the tenancy was got entered into by the agreement dated 6‑8‑1985 and the objection with regards to non‑supply of fitting and fixtures was raised for the first time on 1‑12‑1986 i.e. almost 15 months thereafter and it can hardly be conceived that the appellant would go on paying for the said charges in such case for that long period. Mr. Kazim Hasan appearing for the respondent has admitted to receive the said notice on 11‑12‑1986 i.e. 3 days after the filing of the; present case. The learned counsel for the appellant has, therefore, argued that it is open for the appellate Court to examine the validity and legality of the orders of the Rent Controller with regards to determination of the tentative rent and the direction to make the deposit. In support of the contention he has relied on the case of Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 which reads as under:‑ "There is no serious difference on question No.3.It is not denied that under the present law also there is no provision for filing an appeal against an interim order under section 16 fixing the rent tentatively and making direction for its deposit. It cannot, however, be said that the tenant is remedyless with regard to the tentative determination under this section. He can obviously challenge the same when filing an appeal against the final order if it is passed against him. Therefore, when an appellate Court is examining the validity of an order of striking off of the defence of the tenant under section 16, the questions relating to the determination of the tentative rent and the direction to make the deposit, can be examined with a view to affirming or setting aside the order striking off the defence. "Thus, it can safely be said that the rent laws permit all covenants in agreements, alive or expired which are permissible under the general law and not inconsistent with or repugnant to that special law; and enforces the same accordingly whenever it is so required under that law. In addition, they also remain operative for other purposes permitted by the general law. The fourth question is answered in the negative:" Mr. Kazim Hasan, Advocate for the respondent repelling the above arguments has drawn my attention to paragraph 7 of the written statement filed by the appellant in which he has himself contended that he had filed Misc. Rent Case and was depositing the rent in Court. He has also referred to the three rent receipts produced by the appellant himself in the lower Court. The first receipt is dated 10‑1‑1987 for Rs.5,500, the second receipt is dated 20‑12‑1986 also for Rs.5,500 while the 3rd receipt for Rs.16,500 being the rent for three months. He has argued that these documents themselves go to show that even on appellant's own contention in Misc. Rent Case No.1512/1986 the monthly rent was Rs.5,

500. He has further referred to a letter dated 19‑11‑1986 written by the appellant to the respondent, showing that the rent for three months of August, September and October, 1986 amounting to Rs.16.500 was refused by the respondent. He has also drawn my attention to the certified copy of the application moved by the respondent in Rent Case No.1512/1986 in which the appellant in paragraph No.5 has stated "that the applicant even had agreed to an increase of Rs.200 per month to the said agreed amount of rent of Rs.5,5tk7 on basis of goodwill to establish report with the opponent and the opponent was not entitled to such increase as per mandatory provisions." According to him all the above said documents clearly show that even the appellant himself knew that the monthly rent of the premises was Rs.5,500 and not Rs.3,

000. He has further argued that the word fixture and fitting as used in the agreement did mean the ones which were provided in the premises and it did not mean furniture or any additional articles. He further argued that the Rent Controller was quite competent to determine tentatively the monthly rent as per the material available on record and it was, apart from the other material on record, the very admission of the appellant as given in Rent Case No.1512/1986, that the tentative rent was determined and the order dated 14‑1‑1988 was passed. The principles laid down by the Hon'ble Supreme Court in the case of Mrs. Zarina Khawaja are not disputed and I have examined the order of Rent Controller and I did not find any defect in the said order. This order was passed on the material available on record as said above. I would follow the law as laid down by the Hon'ble Supreme Court as relied upon by Mr. Kazim Hasan in the case of Mst. Akhtar Jahan Begum v. Muhammad Azam Khan PLD 1983 SC 1 wherein it is held by the Hon'ble Supreme Court:‑ "The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has not to determined the question of quantum or rate of rent, finally if the same is in dispute, but to determine such amount "approximately". This is the clear import .of the words underlined above. Further this excludes final adjudication of this question. In the premises the consequence of non‑compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non‑compliance by striking off the defence and passing the order of eviction." He has also relied on a case of Ziaullah Shah v. Syed Riaz Ahmad 1981 SCMR 538:‑ "The scheme of the Ordinance appears to be that in the first instance, the Rent Controller must fix the tentative rent on the basis of the material produced before him and that the tenant must comply with the said order subject to the adjustment of the amount paid when the rent is finally determined on the decision of the merits of the case as will appear from subsection (6) itself which refers to the determination mentioned in its earlier part as 'approximates' 'while "finally determine" is the expression used in the latter part of the subsection. A determination to this effect will only be possible if the tenant defends the ejectment proceedings. If he fails to comply with the order under section 13(6) he is forbidden to contest the proceedings as his defence is liable to be struck off under the law. However we may observe that when the rate of rent was specified in the rent note, the contention raised by the petitioner that the rent was in fact, Rs.300 per month and the amount mentioned in the rent note was incorrect, is patently a dishonest plea to which no importance can be attached. No ground for interference has been made out in the petition which, therefore, fails and is hereby dismissed:' I would therefore, hold that not only the order of the Rent Controller determining the rent tentatively at Rs.5,500 per month was justified but non‑ A compliance of the same would call for the striking off the defence of the tenant which was rightly done in the present circumstances. This principle was also held! in case of Muhammad Aslam v. Abdul Habib 1987 CLC

682. Taking up the other grounds raised by Mr. Ashraf Khan Tanoli, Advocate, I am not in agreement with his contention. The mere fact that the appellant was not informed by his counsel about the payment of rent or that his g counsel did not deposit the rent himself in Court, although received from the appellant, would not absolve the appellant of the penalty incurred under section 16(2) of the Ordinance. Mr. Ashraf Khan Tanoli, has argued that the appellant's counsel was negligent and did not prosecute his case prudently as was expected of a lawyer and that the appellant has already filed a criminal case against his lawyer. Well, this is something between the appellant and his lawyer and the appellant may seek any remedy, by way of criminal prosecution or suit for damages against him. But the penalty that has been incurred cannot be waived for the above reason. Mr. Kazim Hasan has relied on the two cases of this Court in support of above contention. In case of Malik Aman v. Abdul Aziz 1987 CLC 425 Hyder Ali Pirzada, J., has held:‑ "Mr. Iftikhar has contended that the appellant should not be allowed to suffer on account of the negligence of his Advocate and that the previous Advocate was responsible for the appellant failure to deposit rent, the appellant could not be said to have committed default within the meaning of section 16(1) of the said Ordinance. I am not able to accept this contention. The appellant was acting through his Advocate. He cannot plead ignorance of manner of the conduct of the case by him. If his Advocate had not informed him of the proceedings or the passing of the tentative order and he had grievance against his previous Advocate he would have sought his remedy against .him. The appellant would not escape the consequences of the negligence of the counsel. The appellant had not explained the reason for the non‑compliance of the order." In the second case Ghulam Hussain v. Mst Roshan Bibi. Mr. Zahoorul Haq, J, as he then was, he also held the similar views. It is obvious that the appellant cannot claim any excuse for not having complied with the orders of 14‑2‑1988. 1, therefore, hold that the order passed by the Rent Controller as regards to the determination of the tentative monthly rent and direction to deposit the same was quite lawful and reasonable on the basis of material available on the record and that the appellant having failed to comply with the same, therefore, their defence had to be struck off. therefore, find that there is no substance in the present appeal which is dismissed with costs. The appellant is directed to vacate the premises in dispute within 30 days from the date of this judgment. A.A./L‑28/K Appeal dismissed.