2007 PLP 1956 (CLC)

ZIA PERWEZ, J.

This petition is directed against order, dated 13-11-2006 passed by the learned III-Rent Controller, Karachi East in Rent Case No.337 of 2006 on an application under section 16(1) of Sindh Rented Premises Ordinance, 1979. (hereinafter referred to as S.R.P.O.) directing the petitioner to deposit arrears of rent amounting to Rs.4,10,000.

2. Respondent after service of notice under section 14 of the S.R.P.O. dated 18-7-2006 initiated ejectment proceedings under section 14 of S. R.P.O. on 21-7-2006. He also moved application under section 16(1) of S.R.P.O. duly supported by the affidavit seeking directions for deposit of arrears of rent with effect from 1-7-2003 to 30-6-2006 at the rate of Rs.10,000 per month. However, arrears beyond a period of three years, though claimed to be unpaid, were not pressed as admittedly they were barred by limitation. The application for deposit of rent was contested by petitioner who filed affidavit of other persons along with his counter-affidavit to show that he had made payment of rent to the respondent month to month regularly but rent receipts were not issued by the landlord to acknowledging the same. The application was allowed vide the impugned order with direction to deposit arrears of rent for 41 months within 45 days and for deposit of future monthly rent on or before 10th of each calendar month.

3. Respondent has put an appearance in pursuance of pre-admission notice through his counsel. Both the learned counsel have advanced their respective arguments for disposal of the petition at this stage.

4. Mr. S.M. Haider, learned counsel for the petitioner, has contended that the ejectment application moved by the respondent only alter three days of service of notice under section 14 of S.R.P.O. was violative of the provisions of said section as respondent did not wait for period of two months to expire. That the learned Rent Controller prior to expiry of period of two months from the date of notice under section 14 of S. R.P.O. had no jurisdiction to entertain the application, therefore, the same being contrary to the express provisions of section 14 was not maintainable and all orders passed subsequent thereto are also illegal being without jurisdiction. His second contention is that the application under section 16(1) of S. R.P.O. was filed at a stage after the written statement and affidavit-in-evidence were filed in which it was specifically pleaded that no default has been committed, therefore, tentative order is not based on record. He proceeded to argue that the proceedings initiated under the provisions of section 14 of S. R.P.O. do not empower the .learned Rent Controller to entertain an application raider section 16(1) and to pass a tentative rent order because the scope of proceedings is limited and issue of default is not framed in such proceedings. That the respondent landlord failed to acknowledge receipt of rent, therefore, the oral statement of tenant has to be believed.

5. In reply to the arguments advanced by Mr. Sami Atoned Tirmizy, Mr. Haider further added that there is no proof of service of other notice claiming arrears of rent and in fact the same was neither issued nor alleged in the affidavit-in-evidence filed by the respondent. In support of his contentions, he has placed reliance on the cases of Syed Hasan Askari Rizvi v. Muhammad Aziz PLD 1989 SC 1, Khawaja Muhammad Razzaque v. Omer Farouk 1982 CLC 318, Muhammad Iqbal v. Sheikh Riaz Ahmad 1984 CLC 913(2), Haji Ahmed Haji Essa v. Rent Controller and others 1983 CLC 840, Muhammad Riaz v. Mst. Begum Jan and another 1984- CLC 2970 and Habib Ahmad v. Liaquat Hussain PLD 1985 Kar. 741.

6. Mr. Sami Ahmed Tirmizi, learned counsel for the respondent, while opposing the petition, contended that ejectment proceedings before expiry of period of two months would not affect its maintainability. That the powers for entertaining an application under section 16(1) of S. R.P.O. are not confined to cases of default falling under section 15 only but apply to all proceedings before the learned Rent Controller under the provisions of S. R.P.O. in view of 'the word "shall" used therein, which creates no distinction between the proceedings under sections 14 and 15 and it is mandatory to pass a tentative rent order. That the objection as to maintainability of the proceedings not taken at initial stage cannot be agitated before this Court in the present petition. That respondent has filed his personal affidavit and documents leading to passing of impugned order on the basis of the written agreement available on record whereas three affidavits filed by the petitioner are from strangers who are neither tenants of the respondent nor residents of the area. As such, this petition against interlocutory order under section 16(1) is not maintainable before an order is passed under section 16(2) of the S.R.P.O. In support of his contentions he has placed reliance on the cases of Iqbal Yousuf v. Kishwar Jehan 1991 SCMR 864, Messrs Niarsons v. S. M. Younas 1992 MLD 400, Haji Sattar v. Zaki Ahmad 1995 MLD 1146, Muhammad Riaz v. Mst. Begum Jan 1984 CLC 2970 and Moeen Afridi v. Capt. M.R. Choudry 1982 CLC 1116.

7. First contention of Syed Muhammad Haider that the application moved before expiry of twat months after service of notice being a mandatory pre-condition was examined by the apex Court initially in the case of Syed Hassan Askari Rizvi (supra). However, subsequently, the view was re-examined in the case of Iqbal Yousuf (supra) and after reconsideration of the earlier view it was held that the proceedings I, initiated before expiry of period of two months were not invalidated on this ground wherein it has been. held as under:-- "... If he has done what the statute requires of him to do, then technical objection should not come in his way and prevent him from obtaining the relief to which he is entitled. For example, if landlord -has complied with the requirements of section 14 including issue of notice and then files application for eviction under that provision before the Controller before expiry of two months from service of notice, then proceedings would not be vitiated if ultimately eviction is granted after two months from the date of service of notice. "

8. His second contention attracts the provisions of section 16(1) of S.R.P.O. reproduced as follows:

"

16. Arrears of rent.

(1) Where a case for eviction of the tenant has been filed; the Controller shall, on application by -the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf' and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case..."

9. Clear reading of the above section shows that the power to pass a tentative rent order were neither confined to cases of withdrawal only nor to cases falling under section

15. No distinction has been made with regard to section 14 or 15 for entertaining application. The scope of powers for passing tentative rent order in such. cases cannot be narrowed down as held in the case of Niazsons (supra), relevant portion of which is reproduced as under:

"A bare reading of the opening sentence viz., where a case for eviction of the tenant has been filed, would show that an exercise in terms of subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, is to be made in every case of eviction riled by the landlord irrespective of the grounds taken therefor." The order has not been passed by the learned Rent Controller in excess of his jurisdiction.

10. As to the maintainability of this petition it has been repeatedly held that a petition is not maintainable on the ground of passing of an order under. section 16(1) of S.'R.P.O. and the cause of action to approach this Court by way of a petition accrues to the petitioner only when an order is passed by the learned trial Court ordering for ejectment in compliance of tentative rent orders under section 16(2) of S.R.P.O. as held in the case of Haji Sattar and Muhammad Riaz (supra).

11. In view of clear authorities on the legal plane as to the maintainability of the proceedings under section 14 of S.R.P.O. and non-maintainability of present petition as premature and that of the application under section 16, S. R.P.O. as well as the objection as to the maintainability of this petition already discussed above, no further discussion in factual controversy as to affidavits is called for. Accordingly, this petition is dismissed along with listed application.

12. Above are the reasons of short order, dated 2-10-2007. M.H./M-143/K Petition dismissed.