1994 PLP 1210 (CLC)

Date of hearing: 1st November, 1991. Appellant Mukhtar Begum has assailed an order dated 10‑3‑1991 passed by the Senior Civil Judge and Rent Controller, Shikarpur, in Rent Application No. 26/89 declining to strike off defence of the respondent. Admittedly respondent Dildar Ahmed is tenant of and appellant in the premises in litigation known as Cafe Kashif at Lakhigate, Shikarpur, by virtue of registered lease deed with effect from 1‑10‑1986. Rent Application No. 26 of 1989 was filed by the appellant for eviction of the respondent from the premises in litigation on the grounds (i) that the respondent had flouted the terms and conditions of the lease agreement and had lost protection from being ejected, (ii) that the, respondent had failed to pay the rent in terms of the lease, agreement, (iii) that action of the respondent in using roof of the premises in litigation as latrine and for urinal purposes, and omission by the respondent to carry out repairs to the said premises had resulted in decrease of value and utility of the said premises. There were also allegations about breaking of wall of the hotel, about opening of a door, about trespass. over other's property and about selling away of four ceiling fans and other material; etc. In his written statement, the respondent controverted the ground put forth in the rent application for his eviction. Respondent contended that he had been paying rent to the appellant every month till October, 189 at the exorbitant rate of Rs.3,500 p.m. because of an assurance that he would not be ejected. That the appellant was also taking meals, tea, milk etc. worth Rs.1,000 p.m. from the respondent and yet she demanded increase in rent to the tune of Rs.7,000 p.m. and sent notice dated 23‑10‑1989 to vacate the premises. Respondent alleged that the appellant refused to accept rent for November, 1989 onwards and hence the rent was sent to her by money orders which were also refused. Respondent claimed to be depositing the rent in Court in Miscellaneous Rent Application No.23 of 1989. During pendency of the Rent Application No. 26 of 1989 the appellant moved an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 (hereafter to be mentioned as the Ordinance) for ordering the respondent to deposit in Court arrears of rent for October, 1989 and November, 1989 and to deposit future monthly rent at the rate of Rs.3,500 p.m. till finalization of the proceedings. Said application was opposed by the respondent who in his objections denied being defaulter. Respondent claimed to be depositing the monthly rent in Court after refusal by the appellant to accept the same. Under an order dated 13‑3‑1990 the Rent Controller directed the respondent to deposit arrears of rent for the period from October, 1989 within 15 days and to deposit future monthly rent by 10th of each calendar month. Under his application dated 8‑4‑1990 moved under section 16(2) of the Ordinance the appellant prayed for striking off defence of the respondent, on the ground that he had not complied with the order dated 13‑3‑1990. Said application was opposed by the respondent who in his objections claimed to have deposited the entire rental dues in pursuance of the rent order. Rent for October, 1989 was said to have been deposited in excess, as the same had already been paid to the appellant before institution of the rent application. Under the impugned order dated 10‑3‑1991 learned Rent Controller dismissed the application moved under section 16(2) of the Ordinance, after taking view that the respondent was regularly depositing the rent from November, 1989 in the Miscellaneous Rent Application No. 23/89, which was accepted on 13‑3‑1990 after objections filed by the appellant were considered, and the appellant was withdrawing the rent. While dismissing the application moved under section 16(2) of the Ordinance, the Rent Controller was of the opinion that the matter required to be adjudicated upon on merits, after evidence was recorded. Hence this appeal. Mr. Muhammad Hassan Ghumro learned counsel for the appellant argued that deposit of rent by the respondent in Miscellaneous Rent Application No. 23/89 cannot be treated to be deposit in Rent Case No. 26/89 in Ierms of the rent order dated 13‑3‑1990 and that the respondent should have withdrawn the amount from Rent Case No. 23/89 and should have deposited the same in Rent Case No. 26/89. In support he relied on case of Mahmood Bashir v. Mst. Mubina Begum (1988 SCMR 427). It was further argued that an amount of Rs.14,000 was deposited in Rent Case No. 23/89 but in Rent Case No. 26/89 no rent after October, 1989 was deposited and subsequently money order was sent to hide the default and in the circumstances the defence of the respondent required to be struck off for non compliance with the rent deposit order. For this reliance was placed on the case of Government of Punjab and others v. Mst. Azra Mohyuddin and others (1990 SCMR 476) and Mst. Khairun Nissa and another v. Mrs. Mehrun Nissa (1990 CLC 661). It was also argued that appeal against an order declining to strike off defence under section 16(2) of the Ordinance, was competent. Reliance for this was placed on the case of Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 SCMR 261), Muhammad Ali Mutlaq v. Mst. Anwar Fatima and others (1986 SCMR 1674), Mst. Mah Jabeen Begum v. R.M. Khan (1986 SCMR 1835). Mr. Lai Muhammad learned counsel for the respondent, argued that contractual lease, between the parties expired on 1‑10‑1989 and thereafter the relationship of landlord and tenant between the parties, was governed by the Ordinance. In support he cited the case of Amir Ali v. Mrs. Alima Ahmed (PLD 1981 Karachi 150). It was further argued that rent for October, 1989, was due in November, 1989 but the application was filed prematurely before expiry of sixty days from the date of default and as such the order dated 13‑3‑1990 about deposit of rent was void order and it need not be complied with and its violation was not to be visited within penalty provided by section 16(2) of the Ordinance. In support reliance was placed on the cases of Ali Muhammad v. Khalil Ahmed Allahwala and others (1985 CLC 1297), Syea Khadim Hussain Abedi v. Mst. Geti Ara Begum (1984 CLC 68), Syed Tahir Hassan Gardezi v. Abdi Hussain Oureshi (1985 MLD 2980). Learned counsel for the respondent challenged maintainability of the appeal on the ground that dismissal of an application for striking off defence under section 16(2) of the Ordinance, was an interlocutory order and not a final order which can be assailed by way of appeal. In support he cited the case of Gurdasmal v. Pahlaj Ram and another (1986 CLC 43). It was next argued that the respondent had not defaulted in payment of rent as he had been depositing the rent regularly in Miscellaneous Rent Case No. 23 of 1989 since before filing of the Rent Case No. 26 of 1989. Reliance for this was placed on the cases of Maj. (Rtd.) A.S.K. Samad v. Lt.‑C61. (Rtd.) A. Hussain and another (1987 SCMR 1013) and Abdullah Ghangro v. Mst. Tahira Begum and another (1988 SCMR 970). Section 21 of the Ordinance governing filing of the appeal, is different from section 15 of West Pakistan Urban Rent Restriction Ordinance, 1959 inasmuch as the words "not being an interim order" have been incorporated‑ in section 21 of the Ordinance. Under section 15 of the old Ordinance 1959 appeal could be filed against any of the‑ orders passed under sections 4, 10, 12 and 13 but under section 21 of the Ordinance all the orders made by the Controller have been made appealable except an order being an interim order. An order striking off defence of a tenant under section 16(2) of the Ordinance, brings to close the entire matter and such an order cannot be termed as an interim order. The question arises that if an order striking off defence of a tenant is a final order then why an order declining to strike off defence of a tenant should be treated otherwise. In the case of Gurdasmal (1986 CLC 43) the view taken was that an order declining to strike off defence is not a final order because controversy between the parties was not concluded by such order. In the same authority it was conceded that an order passed by the Rent Controller striking off the defence of the tenant will be final order. Contrary view was expressed ‑by the Supreme Court of Pakistan, in the case of Mst. Zubeda Begum (1986 SCMR 261) and Mst. Mah Jabeen Begum (1986 SCMR 1835). In Muhammad Ali Mutlaq (1986 SCMR 1674) no rule was laid down, but leave to appeal was granted to consider if an order declining to strike off defence of a tenant is maintainable. In the case of Mst. Mah Jabeen Begum (1986 SCMR 1835) it was held on the authority of Mst. Zubaida Begum's case (1986 SCMR 261) that an appeal lies against an order of the Rent Controller refusing to strike down the defence for non‑compliance of the order for the payment of rent under section 13(6) of W.P. Urban Rent Restriction Ordinance. This view is binding upon this Court and the appeal is therefore found to be maintainable. The order dated 13‑3‑1990 about deposit of rent was challenged by learned counsel for the respondent on the ground that the Rent Application itself was premature. It was contended that default in payment of rent for October, 1989 in terms of the provisions contained by section 15(2)(ii) of the Ordinance had not as yet been committed on 18‑12‑1989 when the Rent Application was filed. In this respect it was argued that the period of contractual tenancy between the parties expired on 1‑10‑1989 and after said date the rights and liabilities of the parties in respect of payment of rent were to be regulated in terms of the Ordinance, in view of the case of Amir Ali (PLD 1981 Karachi 150). Contrary view has been expressed in the case of Muhammad Ashraf v. Muhammad Sharif and others (PLD 1971 Lahore 610) which was approved by the Supreme Court of Pakistan in the case of Alif Din v. Khadim Hussain (1980 SCMR 767). This point came for consideration in the case of Muhammad Yousif v. Abdullah (PLD 1980 SC 298) where 3 out of four Judges expressed the view that if an agreement of rent is for a fixed period then after expiry of such period the rights and liabilities of the tenant are governed exclusively by the W.P. Urban Rent Restriction Ordinance and the question of the amount of rent due from the tenant has to be determined in accordance with the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance and he has to pay the rent due from him within sixty days from the period for which the rent is payable because the agreement teas expired and is dead. In taking such view the majority of the Judges disagreed with the view expressed in the case of Muhammad Ashraf v. Muhammad Sharif (PLD 1971 Lah. 610) that a tenant continuing in possession after the termination of the lease, must be held to be governed by the same terms and conditions as were applicable to him under the agreement of tenancy, which had terminated. The view expressed in the case of Muhammad Yousif v. Abdullah appears to be in line with the letter and spirit of the provisions contained in section 15 of the Sindh Rented Premises Ordinance. While taking such view, it can conveniently be held that in the instant case the Rent Application moved on 18-12‑1989, was premature, because although rent for' October, 1989 was due on 1st November, 1989 on 18‑12‑1989 the grace period of 60 days was not yet over. As such by 18‑12‑1989 the provisions contained by section 15(2)(ii) of the Ordinance were not attracted and the rent order could not have been passed. There is no force. in contention raised on behalf of the respondent, that since the Rent order was not legal and valid, its non‑compliance was not fatal. Such view is supported by the case of Ali Muhammad (1985 YCLC 1297) and Syed Khadim Hussain Abedi (1984 CLC 68). Even if the order dated 13‑3‑1990, about deposit of rent, is held to be legal and valid order, the respondent cannot be held to be defaulter as he had been depositing the rent regularly in Miscellaneous Rent Application No. 23/1989 before. In the instant case the rent was not being deposited in wrong name hence the present case is distinguishable from the case of Mehmood Bashir. Appellant's counsel also cited the case of Government of Punjab and others v. Mst. Azra Mohyuddin and others (1990 SCMR 476) and Mst. Khairun Nissa and others v. Mst. Mehrun Nissa (1990 CLC 661). In former case Rent Controller's order of eviction and appellate Court's judgment were based on admitted position of failure of tenants to comply with the order of the Rent Controller by which they were directed to deposit specified arrears of rent and future rent and hence no exception was taken to such orders. In latter case, the view taken was that where the tenant had failed to comply with an order passed under section 16(1) 'of the Ordinance, the Rent Controller was bound to order that the defence of the tenant be struck off. Facts of the instant case are materially different from facts of the cited cases where the rent deposit orders were valid and legal and the tenants were not depositing the rent in any other case and the rent applications were not premature. As a result of the above discussion, and in light of the case‑law discussed, it is crystal clear that the respondent had not failed to comply with the rent order dated 13‑3‑1990. and if there is a technical default in consequences of the same cannot be penal. Consequently the impugned order is maintained and the appeal is dismissed with costs. H.B.T./M‑1916/K Appeal dismissed