1997 PLP 2103 (MLD)

(i) Abdul Hafeez v. Mst. Zubeda Khatoon 1992 CLC 471; (ii) Shamsher Ali v. Shaikh Ahmed Din and 5 others 1992 CLC 1762; (iii) Hasham Bhai v. Muhammad Farooq 1982 CLC 2; (iv) A.S.K. Samad v. A. Hussain 1983 SCMR

773. On the other hand Mr. Wahid Bux Baloch counsel for the respondent argued that rent application was filed by respondent before the Rent Controller on the ground of reconstruction of premises being in dangerous condition and for personal use thereafter. It was not filed on the ground of default. According to him the landlord is competent to file an application under section 16(1) of the Ordinance during pendency of rent application to determine the arrears of rent due and seek from the Controller an order for deposit of the same within such period as Controller may fix and further direction to deposit monthly rent regularly on or before 10th of every month until final disposal of the matter. According to respondent's counsel the respondent filed such application on 21‑12‑1994 for a direction of the deposit of future monthly rent at the rate of Rs.3,500 from 1‑12‑1994 and onwards to be deposited on or before 10th of every month as the last payment of rent was made till 30‑I1‑1994. This application, according to him, was allowed by consent as appellant's counsel had noted no objection to deposit of rent as prayed in the application. Mr. Baloch went on arguing that respondent finding that appellant defaulter in compliance with the consent order dated 24‑1‑1995, filed an application under section 16(2) of the Ordinance praying for striking off the defence of the appellant on 22‑2‑1995. After filing the objections to this application it was appellant who had been seeking adjournment till the arguments were heard. Counsel submitted that the contention of appellant that the order for deposit of rent passed by the Controller was behind his back has no force and that the appellant has deliberately avoided to deposit the rent before Rent Controller or he should have paid the same to respondent as he had been doing previously. Therefore, it is argued, that the appellant has clearly violated the tentative rent order and committed default in payment of rent rendering himself liable to eviction. In support of his case he has cited the following authorities:‑‑‑ (i) Haji Fazal Karim v. Additional District Judge Lahore PLD 1982 SC 306; (ii) M. Nazir v. Shoukat Ali 1982 SCMR 985; (iii) Islam Reffat Siddiqui v. Mahmood Abid Rizvi 1984 CLC 1341; (iv) Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190; (v) Mst. Hajiani Momin Bai v. Mst. Razia Sultana 1992 CLC 684; (vi) Messrs Niazsons and another v. S.M. Younus and 2 others 1992 MLD 400; (vii) Muhammad Umer Khan v. Muhammad Sultan Siddiqui PLD 1995 Karachi 31. (viii) H. Fahim v. Mrs. Shamim Tahira and another 1995 CLC 1722. Admittedly the application under section 16(1) of the Ordinance was not opposed by the appellant and no objections were filed thereto. On the contrary appellant's counsel had endorsed his no objection to deposit of the rent as prayed therein and such conduct of the appellant till that time was straightforward as he was not in default of the rent. There was no dispute or controversy about the payment of quantum of rent. Consequently the Rent Controller passed a consent order on 24‑1‑1995 and because of its non- compliance an application under section 16(2) was filed by the respondent copy of which was received by the Advocate for appellant on the same day and this fact is proved from the order sheet of the rent application. However, the appellant has falsely stated that the copy of such application was received by him as his counsel was out of station. It is apparent that the appellant as well as his counsel were well in knowledge of the consent order whereby the appellant was required to deposit the future rent. Hence his contention that the said order was passed behind his back has got absolutely no sanctity. It is manifest from the record that appellant has wilfully defaulted in depositing the arrears of rent due from him before the Rent Controller which fact was also verified from the report of Nazir obtain by the Controller on 22‑2‑1995, the day application under section 16(2) was filed. It is unfair on the part of the counsel for appellant to contend that application under section 16(I) of the Ordinance was not competent when at the original stage not only that no such plea was raised but "no objection" was endorsed on the application itself before the Rent Controller it will be advantageous to quote here section 16(1) of the Ordinance which reads as under:‑‑‑ "

16. Arrears of rent.‑‑‑(1) Where a case for eviction of the tenant his been filed, the Controller shall, on application by the landlord and after such summary inquiry as be deemed 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." It would, therefore, appear that application under section 16(1) of the Ordinance was properly filed and there is nothing wrong with the order passed thereon. The appellant has failed to pay the rent due to him. Even after the alleged return of money order carrying the rent for December, 1994, the rent was not offered to the respondent personally as previously the appellant used to give the same by way of receipt nor he deposited the same before the Rent Controller where the application for ejectment was earlier filed. There are three modes of payment of rent, firstly the rent should be paid directly to landlord, secondly in case of refusal or avoidance on the part of the landlord rent may be sent through postal money order and thirdly, rent can be deposited with the Rent Controller within whose jurisdiction premises were situated. The appellant's counsel strenuously contended that an amount of Rs.50,000 was lying with respondent and, therefore, the Rent Controller should have absolved the appellant from liability of making deposit under section 16(2). This is untenable for the reason that it was neither contemplated in the tenancy agreement between the parties nor it is the requirement of words "security deposit" which is to be returned by the landlord at the time of termination of tenancy. Similar observations were made in the case of Mrs. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 which are as follows:‑‑‑ "The security deposit in this case is to be applied, by the landlord according to the terms quoted earlier, to compensate himself at the time of tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant‑respondent from liability to make a deposit under sections 16(2) and old 13(6) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It is clarified that convenient in each agreement as to security will be construed according to the agreement itself." I have meticulously perused the rent agreement dated 21‑2‑1994 and there is no such clause specifying that the tenant will be entitled to claim adjustment of rent from the amount of security deposit in case he commits default in its payment. The citation referred to by appellant's counsel are of no help to him as the facts enumerated therein are quite different from the facts of the appeal in h4nd. In case of Messrs Niazsons and another v. S.M. Younus and 2 others 1992 MLD 400 this Court has held that tentative rent order under section 16(2) of Ordinance can be passed by Rent Controller in the application for ejectment filed by the landlord on the ground of subletting alone. It has further been held that directions of Rent Controller for deposit of arrears of rent and for deposit of future rent were independent of each other and if there were no arrears of rent at the time of passing tentative rent order under section 16(1) of the Ordinance, no legal embargo existed for passing an order for deposit of future rent alone. It was also held in the above‑cited judgment that the tenant was admittedly in arrears for the month at the time of passing the tentative rent order. Thus, he was directed to deposit the same by specified date and no exception can be taken to such order of Rent Controller. In case of M. Fahim v. Mrs. Shamim Tahira and another 1995 CLC 1722 this Court has held that the tenant had failed to deposit arrears of rent within 30 days and future monthly rent on or before 10th of each calendar month and as such the defence of tenant was rightly struck off. In the case of Muhammad Umar Khan v. Haji Muhammad Sultan Siddiqui PLD 1995 Kar. 31 this Court has held that defence of tenant has rightly struck off by Rent Controller under section 16(2) where tenant failed to comply with tentative rent order. I find no defect in the order of Rent Controller passed on 24‑1‑1995 and the non‑compliance of and order calls for invoking of penal clause as provided in section 16(2) of the Ordinance by which it provided that the defence of the tenant shall be struck off and landlord shall be put in possession of the premises. Therefore the order whereby the defence of the appellant has been struck off and he is directed to hand over possession of the vacant premises within period of two months is justified and proper and merits no interference. The appeal is accordingly dismissed in limine with no order as to costs. The appellant shall hand over vacant possession of the premises to the respondent within two months from the date of this order. A. A./K‑10/K Appeal dismissed.