1993 PLP 1360 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑The Petitioner ostensibly a tenant, seeks leave to appeal against two separate judgments given by the Court, one on the 30th of March, 1989 on the execution proceedings and the other dated 27th April, 1989 arising out of rent control proceedings.

2. On the basis of a lease deed executed in the month of January, 1979 in respect of property bearing Number II‑A‑7/16, Nazimabad, Karachi the respondent sued the tenant thereof for ejectment for non‑payment of rent. The execution of lease deed was not denied but it was stated that it never came into operation or was given effect to as such. After hearing the parties and their objections, the Rent Controller passed an order under section 16 (1) of the Sindh Rented Premises Ordinance directing the tenant to deposit arrears of rent at Rs.3,000 per month up to May, 1987 and also future rent at the same rate. There was default by the tenant in complying with the order whereupon, on the 22nd day of October, 1987, after hearing the parties the Rent Controller passed the Order which reads as hereunder:‑ "From this report I am of the view that opponent have miserably failed to comply with directions passed on application under section 16 (1) of Sind Rented Premises Ordinance as they have miserably failed to deposit future rent w.e.f. August 1987. Hence I strike off his defence and direct him to vacate the demised premises and hand over its vacant possession to the applicant within 90 days of this order." This was challenged by first appeal before the High Court. The High Court dealt with it as hereunder:‑ "The order under section 16 (1) of the Ordinance was a tentative order for the deposit of the rent and there is an agreement between Dr. Arshad Kamal Khan, the appellant and Mrs. Saeeda Khalid and in view of the earlier orders of the Supreme Court as well as of the High Court, during the pendency of the appeal, the appellant failed to deposit the rent as such the stay was vacated and execution proceedings reached to the finality. There is non‑compliance of tentative rent order and prima facie there exists relationship. This point for the time being has been decided by the Rent Controller, this Court while passing an order on stay application and also Supreme Court. The order of the Rent Controller in striking off defence does not suffer from infirmity."

3. In arguing the petitions Mr. Ali Ahmed Tariq, Advocate, the learned counsel for the petitioners contended that there was a series of litigation going on in respect of the same property, that a receiver had been appointed and that in fact title was seriously in dispute and the prior instituted civil suits barred the proceedings before the Rent Controller. He relied upon a number of decisions of this Court to substantiate his stand and 'the decisions considered more relevant by him and specifically mentioned were the following:‑‑ (i) Rehmatullah v. Ali Muhammad and another (1983 SCMR 1064); (ii) Muhammad Akram v. Muhammad Zar and others (1987 SCMR 1788); (iii) Zafar Ali v. Allah Bachayo (PLD 1989 Supreme Court 294).

4. After hearing the learned counsel for the petitioners we find that the distinguishing feature of the case before us is that there is a rent not executed between the parties, the execution of which is not in dispute. Its relevance to the property in dispute is also not in issue. No doubt an objection was taken in spite of such document about the existence of relationship .between the landlord and tenant and about the title in the property. The manner in which such objections to the jurisdiction of the Rent Controller are to be dealt with, has been ably explained in the Full Bench decision in the case of Akhtar Ali Parvez v. Altafur Rehman PLD 1963 (W.P.) Lahore

390. The following observations are of particular relevance to the case in hand:‑‑ "...the Rent Controller should immediately ascertain the ground on which those objections are based, and if those grounds can be settled one way or the other, either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable' from official records, he should proceed to settle those grounds and give his decisions there and then. On the other hand, if the substance of the objection requires further consideration, and the material with reference to which that further consideration is to be given, cannot be brought before the Rent Controller without an adjournment, the Court shall give as short an adjournment as is consistent with the object in law. The Appellate Authorities, in particular, must remain vigilant that the Rent Controllers do not permit objections which can easily be settled on the statement itself from being used as occasions or pretexts for prolonging the proceedings or withholding the payment of rent. The substance of an allegation is easily assessable by an understanding mind, as soon as the allegation is made. The material on which it is based may or may not be readily available. If it is readily available, it must be referred to at once. If it is not readily available, and reason for non‑availability is not the negligence of the party that is raising the objection, no more time must be given than is absolutely necessary to make it available. The scheme of the Ordinance in question makes it clear that speedy disposal is a part of its essence:'

5. The learned Rent Controller adopted exactly the procedure, as in his order passed on 25‑8‑1987, he mentioned as follows:‑‑ "Tenancy agreement is on record and bears signatures of all 3 opponents. The ground raised by opponent No.3 that there exists no relationship of landlord and tenants between parties is false and only to save from depositing of arrears of rent and other charges. Moreover there is no proof with opponents for payment of arrears of rent and other charges."

6. In this background it was incumbent upon the petitioner to have complied with the tentative order which could‑be adjusted or substituted by a final order on the determination of the issues. His avoidance and breach of the order entailed the penalty of striking off the defence and that being the statutory penalty, could not be avoided unless good reasons are given and sustained. To that extent no merit is found in Civil Petition for Leave to Appeal No.332‑K/1989. This determination will, however, not affect the title suit, if any pending in Civil Courts.

7. As regards the other Petition (Civil Petition for Leave to Appeal No.333‑K of 1989), it is a consequential one to the earlier one and if the order of striking off the defence and the order of ejectment remains, its execution cannot be avoided by the Petitioner. Besides, the non‑compliance with the conditional order of the High Court was established as a fact and that also called for the vacation of the stay order and the revival of the proceedings in execution. Leave to appeal is refused in both the petitions. AA./A‑1005/S Leave refused.