1990 PLP 1317 (CLC)

Date of hearing: 28th August, 1989. Both these appeals filed under section 21 of the Sindh Rented Premises Ordinance, 1979, are interconnected, hence for the sake of convenience they are being disposed of together.

2. The respondent is landlord of the premises bearing No. BII/0‑45/1, situated in Bhutta village Karachi. Appellant Dr. Muhammad Usman Junejo (F.RA. No. 470 of 1989) is tenant of respondent in respect of one shop and one room of this premises at the rate of Rs.1,000 p.m. excluding electricity and gas charges. The tenancy is regulated by a tenancy agreement dated 28‑1‑1988.

3. Appellant Dr. Tasneem Usman (F.R.A. No. 471 of 1989), who is wife of appellant Dr. Muhammad Usman Junejo (R.F.A. No. 470 of 1989) is tenant of respondent in respect of residential' portion of the premises situated on 2nd Floor at the rate of Rs. 500 p.m. excluding electricity and gas charges, by virtue of tenancy agreement dated 28‑1‑1988.

4. It is alleged that both the appellants have failed to pay rent from July 1988, and consequently the respondent filed separate applications for ejectment against them. Appellant Dr. Muhammad Usman Junejo admitted the tenancy, but disputed the quantum of rent. According to him the entire building was rented out to him at a rent of Rs.900 p.m. which was paid regularly. It was also pleaded by him that a sum of Rs. 20,000 was lying with respondent as advance rent. Appellant Dr. Tasneem Usman has disputed the tenancy by stating that the entire building was hired by her husband Dr. Muhammad Usman Junejo at a monthly rent of Rs.900.

5. On 6‑4‑1989, the Rent Controller directed appellant Dr. Muhammad Usman Junejo (F.R.A. No. 470 of 1989) to deposit arrears of rent from Sept. 1988 at the rate of Rs.900 p.m. He was also required to deposit monthly rent due before 10th of each calendar month. On the same day Dr. Tasneem Usman (F.R.A. No. 471 of 1989) was also directed to deposit arrears of rent from July 1988, at the rate of 500 p.m. She was also directed to deposit monthly rent due before 10th of each calendar month. In order to safeguard the interest of Dr. Tasneem Usman, the respondent was not permitted to withdraw the amount so deposited by her till the decision of the case. Both the appellants violated the order of Rent Controller. They failed to deposit arrears of rent and also monthly rent due and consequently their defence was struck off under section 16 (2) of the Sindh Rented Premises Ordinance, 1979, vide orders dated 3‑7‑1989. Both these orders are the subject‑matter of these appeals. The main controversy between the parties centres round the quantum of rent of the disputed premises. According to respondent the portion in occupation of appellant Dr. Muhammad Usman Junejo (F.R.A. No. 470 of 1989) was rented out to him on a rent of Rs.1,000 p.m. and the residential portion in occupation of Dr. Tasneem Usman (F.R.A. No. 471 of 1989) was leased out to her at a monthly rent of Rs.500. Both the tenancies are regulated by tenancy agreements which are placed on record. It is, however, the case of both the appellants that the entire premises was rented out to Dr. Muhammad Usman at a rate of Rs.900 p.m. The learned Rent Controller on a careful examination of the contentions raised by the parties passed orders dated 6‑4‑1989, directing each of the appellant to deposit arrears of rent and monthly rent due, but they failed to comply with this direction. The Rent Controller was thus left with no other option, but to strike off the defence of appellants. Mr. Ameer Ahmed Khan, learned counsel of appellants has contended that the Rent Controller without holding necessary enquiry passed the order dated 6‑4‑1989, directing appellant Dr. Muhammad Usman Junejo (F.RA. No. 470 of 1989) to deposit arrears of rent and monthly rent due. It is also submitted by him that the order dated 6‑4‑1989, passed against appellant Dr. Tasneem Usman (F.RA. No. 471 of 1989) without determining the important question of relationship of landlord and tenant between the parties, was nullity. Reliance is placed upon cases reported as Hazur Bux v. Jethanand, etc. 1988 M L D 2018 and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi (1986 M L D 2980). Both these authorities are not attracted in this case. The question of jurisdiction was involved in the earlier case, and the Controller had to decided the preliminary issue, whether disputed property was located in urban area or not. In the latter citation a defective order was passed without determining the amount due. The compliance of order passed under section 16 (1) of the Sindh Rented Premises Ordinance, 1979, is condition precedent for requiring Rent A Controller to examine bona fides or correctness of various defence pleas of tenant. It was so held in Mushtaque Hussain v. Muhammad Shafi, reported in 1979 S C M R 496, in the following words:‑ "It was conceded by the learned counsel that his client had not complied with the order of the learned Rent Controller and had not deposited the rent as directed, but his argument was, that as his client had in his written statement taken up the plea of adjustment of certain amount spent by him and as even otherwise according to him, no rent was due on his part, therefore, in this state of affairs, the order directing the deposit of rent without first sorting out whether any rent was actually due from him after accounting for the claimed adjustments, was not justified. The contention has no merit. The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to starting a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication.

6. The case of Ziaullah Shah v. Syed Riaz Ahmad, reported in 1981 S C M R 538 is directly applicable to the facts of these cases. At page 539 it was observed:‑ "The scheme of the Ordinance appears to be that in the first instance, the Rent Controller must fix the tentative rent on the basis of the material produced before him and that the tenant must comply with the said order subject to the adjustment of the amount paid when the rent is finally determined on the decision of the merits of the case as will appear from subsection (6) itself which refers to the determination mentioned in its earlier part "approximate" while "finally determine" is the expression used in the latter part of the subsection. A determination to this effect will only be possible if the tenant defends the ejectment proceedings. If he fails to comply with the order under section 13 (6) he is forbidden to contest the proceedings as his defence is liable to be struck off under the law. However, we may observe that when the rate of rent was specified in the rent note, the contention raised by the petitioner that the rent was, in fact, Rs. 300 per month and the amount mentioned in the rent note was incorrect, is patently a dishonest plea to which no importance can be attached."

7. No ground for interference is made out and both the appeals are dismissed summarily. Appellant Dr. Muhammad Usman Junejo (F.RA. No. 470 of 1989), and appellant Dr. Tasneem Usman (F R A No. 471 of 1989) are, however, allowed one month's time to vacate the portions in their respective possession. A.A./T‑91/K Appeals dismissed.