1988 PLP 101 (MLD)

Aggrieved by the order-dated 9‑1‑1983 whereby 12th Senior Civil Judge and Rent Controller Karachi struck off the defence of the appellant in the Rent Case No.3039‑ of 1978, the appellant has preferred this appeal.

2. Briefly stated the facts of the case are that the respondent, Jamia Masjid Hanafia Orangabad: Nazimabad being the owner of the‑ disputed quarter No. 8 which the appellant is occupying as tenant, filed ejectment application seeking the appellant's ejectment from the said quarter on the ground of default in payment of rent. The .appellant resisted the application denying the allegations of the default. Pending disposal of the ejectment application, the learned Rent Controller, on motion of the respondent, passed a tentative order dated 1‑12‑1981 requiring the appellant to deposit rent arrears amounting to Rs.2200 on or before 10th January 1982and future monthly rent on or before 10th of each calendar month. This order was however modified on application of the appellant who brought it to the notice of the learned Rent controller that the mount of Rs. 480 which he had already deposited in the D.W. Application No. 337 of 1978 filed by the respondent against him had not been taken into account while calculating the rent arrears. According to the revised order dated 2‑1‑1982 the appellant was required to deposit Rs. 1,760 instead of Rs. 2,200 within the time limit fixed in the earlier order. Although the appellant deposited the rent arrears in lump sum by the due date, he failed to comply with the tentative order in respect of further monthly rent. Consequently the learned Rent Controller by the impugned order dated 9‑1‑1983 struck off his defence directing him to deliver the possession of the disputed quarter to the respondent forthwith.

3. Mr. Zahid Marghoob who was head iii support of the appeal attacked the impugned order on several grounds. It was first contended by the learned counsel that the impugned order is a nullity as it is based on the order passed on 1‑12‑1981 which was not in force at the time of striking off the appellant's defence. I am afraid, I cannot agree with this argument. It was by the order-dated 1‑12‑1981 that the appellant was initially called upon to deposit the rent arrears and future monthly rents. No doubt this order was amended by the order dated 2‑1‑1982 but the only amendment that was introduced was that in the original order dated 1‑12‑1981 the amount of Rs. 2,200 would be read as Rs. 1,

760. Thus the original order was left inact in other respects. This being the position the amendment in the said order could not be construed to have the effect of washing off the original order completely.

4. The next contention of the learned counsel for the appellant was that as envisaged by section 16(1) of the Sind Rented Premises Ordinance 1979 (hereinafter referred as the Ordinance) no summary enquiry was held before passing of the tentative order dated 1-12‑1981. To re‑inforce his argument he referred to the amount of tr;. 2,200 initially fixed by the learned Rent Controller as rent arrears which had to be substituted by revised amount of Rs. 1760 by the subsequent order, In this connection he has also referred to the following authorities: Murntazuddin Ahmad v. Sultan Jahan Begum, P L D 1981 Karachi 329; Ibrahim Ismaf v. Brig. (Rtd.) S. H. A. Gardazi (P L D 1981 Karachi 622) and Ikramuddin v. S. Mehboob Ali, P L D 1978 Karachi

145. The subsection (1) of section 16 of the Ordinance reads as under: "Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.

5. It is clear from the above provision that summary inquiry is discretionary. It is left to the discretion of the Controller to make such summary inquiry as he deems fit to make. The summary inquiry is obviously intended to determine the arrears of the rent due. For the purpose of determining the rent arrears, it is necessary to ascertain the rate of rent, the period for which the rent has not been paid and such other incidental factors. In the instant case there is no dispute with regard to rate of rent and the period for which rent is irk arrears. This is clear from the appellant's own admission in Para 4 of his application dated 16‑12‑1981 by which he sought the modification of tentative order dated 16‑12‑1981. The para 4 of his application reads as under: "That as per rent acxunt of the opponent, the rate of rent and the period is admitted but the arrears are not admitted. It is submitted that the applicant had already deposited an amount of Rs. 480. in D.W. Application No. 337 of 1978 filed by the applicant against the opponent. This amount is to be adjusted. The applicant ought to have pointed out such error."

6. The appellant's own assertion in the above para clearly shows that there is no controversy with regard to rate of rent and the period for which the arrears are due. The appellant's only grievance is that white calculating the rent arrearc, the, amount of Rs. 480 that he had already deposited in the D.W. Application No. 337 of 1978 filed by him against the respondent was not taken into account. It appears that this objection of the appellant was taken care of by the learned Controller in his sub‑sequent order wherein the necessary adjustment on account of the above amount was made and the tentative order was revised accordingly. After the modification of the initial order the appellant was required to comply with the revised order. Thus the error that had crept in the initial tentative order stood cured and it could not be held to have still prejudiced the appellant's case in any manner. Consequently it was not open to the appellant's counsel to argue that the initial tentative order which was subsequently revised suffered from any legal because of not holding the summary inquiry.

7. Coming to the case law referred by the learned counsel for the appellant, it appears that in the case of Mumtazuddin Ahmad attempt has been made to define the meaning and scope of summary inquiry. The manner in which such B enquiry is to be held has also been indicated in the said case. It was held: " ... ... it is clear that even when the principle of natural justice is pressed into service the manner of holding of an inquiry or conducting of the proceeding is entirely left to the Authority concerned. However what is required is that the affected party should be given a .fair opportunity."

8. All that emerges from the above authority is that the party concerned should be afforded fair and reasonable opportunity to project his case. It further shows that it is entirely left to the authority concerned to give such opportunity or in other words hold summary inquiry in the manner it deems fit. In the instant case as soon as the opponent moved the Rent Controller for amendment of the initial tentative order, he lost no time to amend the order in the light of appellant's aversions. Thus not only opportunity was given to the appellant but also the order already passed was changed in the light of appellant's contentions. The omission to hold summary inquiry at the time of passing initial tentative order was accordingly rectified. The authority referred to above is therefore of no assistance to the appellant. For the same reasons the case of Ibrahim Ismail relied upon by the learned counsel for the appellant cannot be invoked in the aid of the appellant's case. The case of 1kramuddin is also of no help to the appellant, because the amount of Rs. 480 which was not reflected in the earlier order was duly adjusted in the revised order. Consequently the impugned order cannot be held to have been based on factually incorrect tentative order.

9. As per Nazir's report dated 6‑11‑1982, in pursuance of the tentative order the appellant deposited Rs.1,800 on 7‑1‑1982 which obviously included the monthly rent Rs. 40 for the month of December, 1982. Thereafter, he is shown to have deposited two sums of Rs. 80 each on 3‑4‑1982 and 2‑8‑1982. If the amount paid on 3‑4‑1982 is taken to be the rent for the months of January and February 1982, the appellant has obviously failed to pay the rent for the month of March, 1982. It would appear that even the rent for the months of January and February has not been paid in, time i.e., on or before 10th of the following month. The second sum of Rs. 80 on 2‑8‑1982 appears to be the rent for the two months immediately preceding the date of payment i.e., June and July 1982. If so at least the rent for June has not been paid in time. It is also clear that the appellant has committed to pay the rent for the month of April and May 1982.

10. In view of the factual position stated above, the learned Rent Controller has rightly held that the appellant failed to comply with tentative order and accordingly he was justified in striking off the appellant's defence. The appeal has already been dismissed by short order dated 10‑8‑1983. Above are the reasons for the said order. The appellant has been given six months' time to hand over the possession of the disputed premises to the respondent. M.Y.M./1675/K Appeal dismissed.