1990CLC849 (PLP)

‑‑‑Ss. 15 & 16(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Deposit of arrears of rent‑‑‑Rent Controller ordered tenant to deposit arrears of rent for more than three years preceding to filing of ejectment application‑‑‑Order regarding payment beyond three years preceding tiling of ejectment application was declared to be without lawful authority and case remanded to Rent Controller to decide application under section 16(1) of the Ordinance. Ali Jan v. Shujauddin PLD 1985 Kar. 698 rel. Amir Malik for Petitioner. M.G. Dastgir for Respondents. Date of hearing: 23rd May, 1989. AJMAL MIAN, CJ.‑‑The above petition is directed against the tentative rent order dated 18‑12‑1.988 passed by the learned IInd Sr. Civil Judge and Rent Controller in Rent Case No.95 of 1988 under section 16(1) of the Sindh Rented Premises Ordinance, 1979, for the deposit of the arrears of rent with effect from 1‑7‑1982 till November, 1988 amounting to Rs.34,700 at the rate of Rs.1,100 per month and also current monthly rent. The above order has been impugned on the ground that the learned Rent Controller could not have ordered deposit of the arrears of rent for more than three years preceding the filing of the rent application. A DB of this Court has allowed 12 petitions on the ground that the A order was illegal and had remanded the case to the learned Rent Controller to pass a fresh tentative order in accordance with law. However, in the instant case Mr. M.G. Dastgir learned counsel for the respondent has contended that the above impugned tentative rent order has two parts, one which relates to arrears, the other which pertains to current monthly rent and that if one part of the order is illegal the other portion of the order can be enforced. Reliance has been placed on a DB Judgment of this Court in the case of Ali Jan v. Shujauddin PLD 1985 Kar. 698, in which a DB of this Court while dealing with an appeal against an order of striking off the defence took the view that even if the default in respect of the arrear was to be overlooked there was still default pertaining to the current monthly rent and the appeal was dismissed. Since a DB of this Court in 12 petitions between the same parties has passed an order remanding the case to the learned Rent Controller for passing fresh order, in our view it will not be just and proper to pass a different order in B this case. The case relied upon is distinguishable as in the said case the question before the learned Judges of the DB was, whether the order of striking off the defence could be maintained on the ground of breach of the order pertaining to the current monthly rent. We would, therefore, allow the above petition and declare the above order without legal authority. The case is remanded to the C learned Rent Controller with the direction to decide the application under section 16(1) of the Sind Rented Premises Ordinance. However, there will be no order as to costs. M.Y.H/M‑907/K Case remanded.