1986 PLP 1587 (CLC)

J.H. Rahimtoola for Appellant. Makhdoom Abdul Wall for A.‑G., Sind for Respondents. Date of hearing: 10th April, 1986. This rent appeal, which arises out of the order, dated 16‑8‑1984 of the Rent Controller rejecting the application filed under section 16(2) of the 1979 Rent Ordinance is fixed for regular hearing today. This matter was called in the morning and at that time none appeared for the respondents and as such I kept this matter aside to be taken up after the tea interval. The matter was taken up at about 11‑45 a.m. when Mr. Makhdoom Abdul Walt, Advocate, appeared and requested for adjournment on the ground that Mr. A. Sattar Shaikh, Addl. Advocate‑General is busy in some other cases. He stated that on the next date of hearing either Mr. A. Sattar Shaikh, Addl. Advocate General, will proceed or Mr. Makhdoom Abdul Walt himself will proceed with the matter. This matter has been adjourned on several occasions previously. It was fixed for the first time for regular hearing on 23‑5‑1985 and then on 30‑5‑1985, 22‑8‑1985, 3‑10‑1985, 24‑10‑1985 and 29‑1‑1986 and on all these dates at the request of the learned Addl. Advocate‑General or Assistant Advocate‑General, the case was adjourn. On the last date of hearing it was adjourned because Mr. J.H. Rahimtoola, learned counsel for the appellant, was busy, in a part‑heard matter before another bench and no one on behalf of the respondent was present. I declined the request of Mr. Makhdoom Abdul Walt, Advocate, to adjourn this matter and asked him to address arguments on behalf of the respondent after the close of the arguments on behalf of the appellant but Mr. Makhdoom Abdul Wait stated that he had only come to take adjournment and he could not argue the case today. In the circumstances, I have heard the arguments of Mr. J.H. Rahimtoola, learned counsel for the appellant. No arguments were addressed by Mr. Makhdoom Abdul Walt, who appeared on behalf of the respondents.

2. An order under section 16(1) of the Sind Rented Premises Ordinance, 1979, was passed in this case, filed by the appellant /landlord, directing the respondents to deposit rent. Admittedly, there are seven defaults by the respondents in deposit of rent. An application under section 16(2) of the 1959 Rent Ordinance was filed by the appellant, in para. 2 of which application details of seven defaults were specified. Objections were filed, in which apart from raising objection that the application was illegal and not maintainable, no specific reply was given but it was mentioned that no default has been committed. Written submissions were also made on this application by the learned counsel for the appellant, in which reliance was placed on several reported authorities of the High Court and Supreme Court. However, by the impugned order, dated 16‑8‑1984, as observed earlier, the application under section 16(2). filed by the appellant /landlord was dismissed. On the question whether an appeal against an order of the Rent Controller dismissing the application under section 16(2) of the 1979 Sind Rented Premises Ordinance is maintainable, Mr. J. H . Rahimtoola, learned counsel for the appellant, has referred to a recent decision of the Supreme Court in the case of Mrs. Zubaida Begum v. Mrs. S.T. Naqvi 1986 S C M R

261. In this judgment of the Supreme Court, reference was made to an earlier decision of the Supreme Court to the effect that the order of Rent Controller pased under sectio.m::13(6) of the 1959 Rent Ordinance refusing to strike' off tenant's defence is as much appealable as one striking out tenant's defence. High Court had taken the view that such an order is an interlocutory order and is not open to appeal. Supreme Court by the judgment reported in 1986 SCMR 261 held that the appeal was maintainable and the case was remanded to the High Court for decision. Mr. J.H. Rahmitoolah also referred to an earlier judgment of Supreme Court in the case of Hayat Ali v. Mst. Aziza Mahmood 1980 S C M R

298. In this judgment of the Supreme Court also it was held that both the orders i.e. the order allowing an application under section 13(6) of the 1959 Rent Ordinance and striking off the defence of the tenant as well as the order rejecting such an application and refusing to strike off the defence of the tenant are appealable. No doubt the two decisions cited by the learned counsel for the appellant, were on the provisions of 1959 Rent Restriction Ordinance, the ratio of the two decisions of the Supreme Court supports the proposition of the learned counsel for the appellant that the present appeal is maintainable. Under section 21 of the 1979 Rent Ordinance an appeal is provided against "an order not being an interim order". The order of the Rent Controller passed under the provisions of the Sind Rented Premises Ordinance, 1979, rejecting the application of the landlord filed under section 16(2) of the Ordinance and refusing to strike off the defence of the tenant is not an interim order and as such an appeal lies against such an order under section 21 to the High Court.

3. On merits, learned counsel for the appellant submitted that admittedly there are seven defaults in the deposit of rent, which range from one day to 49 days. The defence of the respondents against the application for striking off their defence apparently was that the respondent No. 1 was a Government Department and a complicated procedure is to be followed for payment by the Government Department which requires bills to be pre‑audited and for payment advance receipts due to be given and then after passing of the bills by the c6mpetent authority the amount is withdrawn and then deposited with the Rent Controller. It is contended by the learned counsel for the appellant/ landlord that no distinction is made between a private citizen and a Government Department in so far as the liability to deposit the rent is concerned under the provisions of the 1979 Rent Ordinance. In support of this proposition, learned counsel , referred to a judgment of the Supreme Court in the case of Province of Punjab v. Civil Judge, Lahore 1982 SCMR

692. This was also a case of an Educational Institution, which had been nationalized and as such the Province of Punjab through the Secretary Education had become the tenants of the premises. In that case only material issue was whether the tenant had committed wilful default in payment of rent. The plea on behalf the Punjab Government that special treatment should have been given to the Government was rejected by the Supreme Court. Paras. 3 and 4 of the reported judgments of the Supreme Court are reproduced herein below:‑ "The only ground urged by the learned counsel for the petitioner before us was that there was no wilful default in payment of rent because, according to the practice of the Department, a bill has to be prepared and presented for passing to the Audit Office. But the Audit Office insists on a certificate from the Excise and Taxation Department showing the Assessed Annual Rented Value of the premises in question being submitted alongwith the bill. And since the respondent /landlord failed to supply a copy of such a certificate the petitioner paid him rent at the rate of charge 50$ per month for about 9 months. But as the certificate was still not supplied by the respondent. The petitioner/ defendant in accordance with its usual practice, withheld the payment of the rent altogether. We have considered this contention and have also gone through the judgment of the three Courts below before which the same contention had been urged unsuccessfully. We must express our surprise at the stand taken by the petitioner. It is evident, as observed by the learned Courts below that there is nothing in section 13 of the Urban Rent Restriction Ordinance which makes any distinction between a private tenant and a Government Department as a tenant. The Government Departments are required to pay rent to the landlord like any other private tenant and would be equally liable to ejectment on default in payment of rent in accordance with law. As tenants, a Government Department and a private citizen are both obliged to tender rent to the landlord. Similarly, both are liable to ejectment on default of payment of the rent in accordance with law. It is not open to the Government Department to take the premises on lease and impose conditions of its own on the landlord as in the present case. It is required to pay him the rent and in doing so the Department is doing him no favour, as it is their duty in law, to tender rent to the landlord. The fact that the building had been hired to run a school makes it all the more obligatory on the respondents to have exercised greater vigilance in paying the rent in time." The above judgment supports the contention of the learned counsel for the appellant. Mr. J.H. Rahimtoola also cited a judgment authored by me in the case of Government of Sind through Secretary of Education v. Murad Ali 1982 CLC 1166. In that case the defence of the appellant Government/ tenant was struck off for non‑compliance of the order under section 13(6) of the 1959 Rent Ordinance. The learned Assistant Advocate‑General appearing for the appellant in that case had contended that notice had to be taken that delay took place in the payment of bills of rent by Government Departments on account of various reasons, which may include shortage of budget, lack of funds, ratio of work, non‑availability of bills forms etc. This plea was not accepted on the ground that a Government Department, who is a tenant, is not entitled to a special or different treatment as compared to an ordinary tenant, as no such distinction had been made in the rent laws. This decision also supports the contention of the learned counsel for the appellant that the application under section 16(2) of the Sind Rented Premises Ordinance, 1979, moved by the appellant should have been granted and the defence of the respondents struck off. Learned counsel for the appellant has submitted that he had cited the aforesaid authorities namely 1982 S C M R 692 and 1982 CLC 1166 apart from other reported judgments of the superior Courts of our country before the Rent Controller, and page 2 of the impugned order, dated 16‑8‑1984 of the Rent Controller shows that these two authorities had also been cited before the Rent Controller. In fact the Rent Controller in the impugned order at page 3 observes that he had gone through the rulings laid down cited by the learned counsel for the appellant. Nevertheless, the application under section 16(2) of the 1979 Rent Ordinance moved by the appellant was dismissed and the reasoning of the Rent Controller in rejecting such an application is reproduced here-in-below:‑ "I have gone through the rulings relied upon by learned counsel for the applicant and have also considered the dates of deposit of rent by the opponent. In the instant case the arrears as ordered stand deposited. The monthly rent appears to have been deposited with a delay of some days. It is an admitted fact that the opponents are a Government /Public Institution governed by some Rules and Regulations. It cannot be denied that the payment to be made by the Government are subject to some legal formalities and requirements before payment. The bills to be paid by the Government are pre‑audited. An advance receipt of amount before payment is required to be obtained from the payee and thereafter an extract bill is prepared and sent to the Treasury/ Accountant General when the bill is passed by competent authority thereafter the amount is withdrawn and paid. In the instant case the delay in payment of rent must have occurred due to the aforementioned formalities and requirements. In my opinion these formalities and requirement can be a cause of delay in payment. I am, therefore, of my considered view that some lapse and delay in payment of rent by an educational institution can be termed as due to out of control circumstances. Accordingly, I hold that the opponent cannot be termed as to have wilfully and intentionally committed some delay in payment of rent." In view of the admitted seven defaults in the deposit of rent ranging from one day to 49 days and in view of the law laid down by the Supreme Court as well as by the High Court and which law was cited before the Rent Controller and which was also referred to in the impugned order, the application under section 16(2) of the 1979 Rent Ordinance should have been allowed by the Rent Controller. It is apparent that though the aforesaid reported judgments were cited before the Rent Controller as having been referred to in the impugned order, the principles laid down in the aforesaid judgments were neither considered nor followed and even no attempt was made to distinguish them by the Rent Controller. The two decisions, namely, 1982 S C M R 692 and 1982 C L C 1166 were directly on the point raised before the Rent Controller and he ought not to have side tracked these judgments directly on the point by making no reference to the principles laid down in those judgments and to go on holding that "in my opinion these formalities and requirements can be a cause of delay in payment. I am, therefore, of the considered view that some lapse and delay in payment of rent by an educational institution can be termed as due to out of control circumstances." It was a case of seven admitted defaults. The reasons given for delay could not be accepted as unavoidable causes for late deposits in view of the law laid down by the Supreme Court and the High Court in the aforesaid judgments. The application under section 16(2) of the Sind Rented Premises Ordinance, 1979, in the circumstances, should have been allowed by the Rent Controller. As a result, F.R.A. No. 963/84 is allowed, the impugned order, dated 16‑8‑1984 of the Rent Controller is set aside and the application moved under section 16(2) of the 1979 Rent Ordinance by the appellant/ landlord is granted, the defence of the respondents/ tenants is struck off and their ejectment ordered. However, as the respondent No. 2 is an educational institution, time is granted till 31‑8‑1986 for vacating the premises by the respondents subject, however, to payment/deposit of rent. There will be no order as to costs. A. A. Appeal allowed.