2008 PLP 42 (MLD)

SYED ASGHAR HAIDER, J.

The respondent gave on rent the disputed property to the appellant vide agreement, dated 6-7-2004. Thereafter he filed an ejectment petition before the Additional Rent Controller (Cantonment) pleading personal need. The rent stated in the petition was Rs.55,000 (rupees fifty five thousand only) per month. The appellant filed written reply, admitted the relationship inter se the parties, as landlord and tenant. The Rent Controller after perusing the record and hearing and counsel for the parties, passed an order for deposit of rent on 29-3-2006, directing the appellant to deposit the rent in the sum of Rs.55,000 per month from March, 2006 onwards. The appellant failed to deposit rent in the sum as directed. Therefore, the respondent filed an application under section 17(9) of the Cantonments Rent Restriction Act, 1964, alleging default, in the deposit of rent, pleading that the order of deposit of rent reflected Rs.55,000, however, the petitioner tenant deposited an amount of Rs.52,250, therefore, there is premeditated, wilful default and non-compliance, as such the defence of the appellant be struck off and ejectment petition be allowed. This application was allowed and ejectment petition granted. Aggrieved thereof the appellant has failed the instant appeal.

2. Learned counsel for the appellant contended that agreement concluded inter se the appellant and respondent was, for all intents and purposes an agreement of tenancy, inter se, the Vanguard Books (Pvt.) Ltd. through its Chief Executive (the present appellant) and the respondent. This agreement was executed pursuant to earlier agreements, executed inter se Vanguard Books (Pvt.) Limited and the respondent Muhammad Azeem Butt. The first agreement was executed on 7-7-1999 and thereafter the agreements were renewed from time to time. Learned counsel contended further that the appellant made upto date payments of rent on the agreed rate of rent of Rs.55,000 it was adhered to and complied with by the appellant, the deposit of Rs.52,250 is after deducting income tax as ordained by section 155 of the Income Tax Ordinance, 2001, therefore, there is absolutely no default and the impugned order is illegal. Further the Income Tax Ordinance, 2001 is later legislation than the Cantonments Rent Restriction Act, 1964, therefore, its provisions would override and prevail upon former legislation, the agreement was between Muhammad Azeem Butt and Vanguard Books (Pvt.) Ltd., the business of book selling, is transacted in the premises, and the appellant, as Chief Executive on behalf of Vanguard Books executed the agreement and, therefore, is not a tenant as defined in the Cantonments Relit Restriction Act, 1964. Further the term "tenant" is wide enough to cover the Vanguard Books, all these question, though, raised, but were not addressed and answered by the learned Rent Controller, the parties had adopted a peculiar practice and adhered to the same, therefore, deduction of income tax was a natural consequence. He relied on the following precedents "Muhammad Alam v. Noor Muhammad" (1973 SCMR 606), "Mehrban Ali v. Haji Muhammad Qasim" (PLD 1976 Lahore 1052), "Muhammad Shafi v. Iqbal Ahmad and another" (PLD 1965 Lahore 23), "Major Feroze Din Khan and others v. Sh. Muhammad Amin" (PLD 1967 Lahore 966), "Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousaf Shami" (PLD 1972 Karachi 226), "Amir Ali v. Mrs. Alima Ahmad" (PLD 1971 Karachi '150), "Muhammad Siddique v. Abdul Rasheed" (1982 CLC 217) and. "Ghulam Adamali Jeevaji v. N. Hassan. Ali and Co." (PLD 1984 Karachi 373). According to the learned counsel the provisions of section 17(9) of the Cantonments Rent Restriction Act, 1964 come into play only in case, default is premeditated and wilful, in the present matter, the default is neither wilful nor deliberate. In fact the appellant being a law abiding citizen has discharged his obligations and duties and has rightfully paid the tax due, which was his cardinal duty, thus he cannot be penalized for a lawful duty. To fortify his contention he relied on "L. Hussain v. Muhammad Nawab and 4 others" (PLD 1992 Karachi 307), "Niaz Muhammad and another v. Waris Hussain and 2 others" (2004 YLR 1266) and "Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi" (PLD 2007 SC 504). He lastly urged that the respondent has not been able to establish non-compliance of deposit of rent; therefore, the order is'patently illegal and unlawful. In this context he relied on 1998 SCMR 970, "Noor Muhammad v. Medhi" (PLD 1991 SC 711), "Mehboob Jewellers and others v. Nur Ahmad" (1989 SCMR 1327) and "A.S.K. Samand v. A. Hussain and another" (1987 SCMR 1013).

3. The learned counsel for the respondent contended that the agreement, dated 6-7-2004 was executed inter se appellant and respondent in their private capacity. The execution of this agreement, itself establishes that the earlier agreements entered inter se, Vanguard Books (Pvt.) Ltd. and the respondent lost efficacy, were made redundant by execution of the instant agreement, which was a clear departure from the previous practice, therefore, the earlier agreements cannot be relied upon or even considered. To fortify his argument he submitted that there was a deliberate departure from the previous agreements, as the agreement, dated 6-7-2004 conspicuously omitted Vanguard Books and referred to Najam Seithi and Muhammad Azeen Butt as tenant and landlord. He also stated that the provisions of section 155 of the Income Tax Ordinance are not applicable to the private persons and come into play only in case of "prescribed person", therefore, the deduction of rent for the purposes of income tax was clearly violative of the order of the Rent Controller, as appellant is a private individual and not "a juristic person", thus the default is not only deliberate but is premeditated and wilful as well. To fortify his contention the learned counsel relied on "Ashiq Ali and another v. Mehar Elahi and 13 others" (2001 SCMR 130), "Qureshi Industries v. Karachi Development Authority" (1993 Karachi 553), "Saleem Ahmad v. Additional District Judge and others" (1992 CLC 1531). He lastly argued that once default in rent is established the Rent Controller has absolutely no jurisdiction in law but to strike off the defence of the tenant and proceed to grant the ejectment petition as prayed for. He relied on "Zikar Muhammad v. Mrs. Arifa Sabir and another" (2000 SCMR 1328), "M.H. Mussadaq v. Muhammad Zafar Iqbal and another" (2004 SCMR 1453), "Muhammad Ilyas v. Ashfaque Hussain" (1992 MLD 1577) and "Khadim Hussain v. Nasir Ahmad" (2003 SCMR 1580). Therefore, the impugned order is unexceptionable and resultantly this appeal be dismissed.

4. I have heard the learned counsel for the parties at length and examined the record.

5. Before adverting to the stance taken by either party, it is essential to examine the agreement, dated 6-7-2004, executed inter se, appellant and respondent. It clearly reflects that the parties concerned are Muhammad Azeem Butt "landlord" and Najam Aziz Seithi "tenant". There absolutely is no mention of Vanguard Books in the expression "lessee/tenant", which has been defined and explained in detail in the agreement, the words "tenant" and "landlord are confined to heirs, successors, legal representatives and assignees. Thus the agreement in question is a clear departure from the previous agreements executed inter se. The Vanguard Books and Muhammad Azeem Butt, because the agreements, dated 7-7-1999 and 7-7-2002 reflect Vanguard Books as "tenant" and Mr. Muhammad Azeem Butt as "landlord". Thus there absolutely is no ambiguity or confusion, in the agreement as to who, the tenant and landlord, respectively, are. Therefore, Muhammad Azeem Butt and Mr. Najam Aziz Seithi are "landlord" and "tenant" respectively, in their private capacity. Thus assertion of the learned counsel for the appellant disputing the agreement for purposes of Vanguard Books (Pvt.) Ltd. as tenant is not tenable and therefore, is repelled.

6. The order passed by Rent Controller, dated 29-3-2006 reflects the rate of rent payable as Rs.55,000 (rupees fifty five thousand only) by the 5th day of each succeeding month. Therefore, the appellant was under a bounden and cardinal duty to adhere to these directions and pay rent as directed. The order passed was tentative and in case of any ambiguity ' or confusion, could have been assailed, by filing A miscellaneous proceedings. This was not done. Thus the conduct of appellant reflects that there was no confusion or ambiguity qua the terms of the order for deposit of rent in the sum of Rs.55,000 in his mind, still the order was not complied with, as directed, and rent not deposited in the sum of Rs.55,000 thus default is wilful.

7. Now adverting to the next argument of the learned counsel for the appellant, that there is no default in the payment of rent, as the appellant deposited the same, in accordance with the requirements of law, because he was required by law to deduct income tax, at source under section 155 of the Income Tax Ordinance, 2001. The provision referred to, is inapplicable in the appellant, because "prescribed person" as defined in the Income Tax Ordinance, 2001 means "Federal Government, a Provincial Government, Local Authority, a Company, a non profit organization or diplomatic mission of foreign State". The appellant does not fall in this category, being a private person, therefore, he cannot claim benefit of this provision and deduct income tax at source, therefore, the argument made is not sustainable.

8. As the petitioner did not adhere to the direction of the Rent Controller and did not deposit the rent in the stated amount, therefore, the Rent Controller had no option but to invoke the penal provisions as contained in section 17(9) of the Cantonment Rent Restriction Act, 1963 and strike off the defence of the petitioner and thereafter grant the ejectment petition as prayed for. The impugned order is unexceptionable because adherence to the order of deposit of rent under section 17(9) of the Cantonment Rent Restriction Act, 1963, has to be unconditional, complete and without reservation, as the word "shall used in section 17(9) of the said Act, has been interpreted by the Hon'ble Supreme Court of Pakistan and means "mandatory". Reference "Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi" (PLD 2007 SC 504). The precedents referred to by the learned counsel for the appellant, in these circumstances, are clearly distinguishable on facts. Resultantly this appeal has no merits and is dismissed. The appellant, however, is granted time, subject to payment of rent as directed, to vacate the disputed premises by 28th of February, 2008. S.A.K./N-90/L Appeal dismissed.