1991 PLP 2619 (MLD)

S. 15

West Pakistan General Clauses Act (IV of 1956), S.20

Authority competent to pass an order was also competent to recall, vary and alter the same

Rent Controller would be competent to invoke provisions of S.20, West Pakistan General Clauses Act, 1956. Haseen Ahmed Khan v. Irshad Khan P L D 1987 Kar. 16 and N.Q. Industries v. Bapai Kaikhusro P L D 1968 Kar. 589 rel. Asad Ali Bilgrami for Appellant. Sh. Riaz Ahmad for Respondent. Dates of hearing: 26th and 27th November, 1989. In this first rent appeal an order dated 5-8-1989 of the learned IInd Senior Civil Judge and Controller (East) Karachi, whereby he struck off the defence of the appellant, is called in question.

2. Record- of the case shows that on 20-3-1989 an order was made by the Controller in Rent Case No.949 of 1988, observing that the appellant-tenant was depositing rent in Miscellaneous Rent Case No.106 of 1989 as from October, 1988, and requiring her to discontinue further deposits in such M.R.C. and, correspondingly, start depositing accruing rents in the referred rent case, at the agreed rate, by the 10th of each calendar month. It would seem that an application under section 16(2) of the Sindh Rented Premises Ordinance was moved by the respondent landlord in July, 1989, maintaining that the appellant tenant had failed in the compliance of the tentative rent order and seeking that her defence be struck off. Report, obtained from the C.O.C. dated 5-8-1989, indicated that no deposits were made in Rent Case No.949 of 1988 to the date of the report. Accordingly, the learned Controller proceeded to strike off the defence, which he did per order of the same date namely, 5-8-1989. As a result, this appeal has arisen.

3. The contention of the appellant is that as the order of deposit, dated 20-3-1989, was passed in the absence of her then counsel, it was, in the first instance, not communicated to her and, later, was misinterpreted and confused to mean and imply continuation of deposit in the same Court though in the M.R.C. and such deposits were, therefore, continued. It would appear that, as from 20-3-1989, the appellant tenant did continue to deposit the rent in the Miscellaneous Rent Case.

4. It can, at best, be termed to be a case of default of a technical nature. The appellant has, obviously, been out of pocket to the extent of the amount that she has continued to deposit in the Miscellaneous Rent Case, even after the order of deposit of tentative rent in Rent Case No.949 of 1988. These deposits have been made in Court. As observed by the Supreme Court of Pakistan in Major (Rtd.) A.SA. Samad v. Lt: Col. (Rtd.) A. Hussain 1987 S C M R 1013 and in Abdullah Ghangro v. Mst. Tahira Begum 1988 S C M R 970 a transgression of this category can only be termed as an irregularity and penal actioll under section 16(2) of the Sindh Rented Premises Ordinance, 1979, cannot be visited on the tenant, as a consequence of such irregularity. Mr. Asad Ali Bilgrami places his case no higher.

5. It needs hardly be pointed out that section 16(2) of the Sindh Rented Premises Ordinance is a provision which can be equated with and is in pari materia with section 13(6) of the Sindh Urban Rent Restriction Ordinance (VI of 1959). Penal provisions of this character, as held in Syed Ahsan Ali v. Jaffar Ali and 4 others P L D 1964 Kar. 418, are to be strictly construed and unless the order, violation of which is sought to be subjected to penal action, is clear, certain and free from vagueness or material defects the penalty sought to be invoked cannot be applied. The rule can be extended to such cases also where there is substantial compliance with the order but literal compliance is lacking and a reasonable explanation, not amounting to contumacious disregard, is forthcoming on the part of the alleged defaulter. On such and similar considerations the Supreme Court dicta in the above referred two decisions, plainly, rests and mere mistake leading to technical default of the character, spoken of above, does not attract consequences of a penal nature.

6. As a result, the impugned order striking off the defence of the appellant cannot be sustained.

7. However, Mr. Shaikh Riaz Ahmed for the respondent landlord, has pointed out that an incorrect statement was, made before the learned Controller to the effect that rents, as from October, 1988, were being deposited in M.R.C. No.166 of 1989 and that, in fact, the deposited rent on the date of the commencement of the deposit fell short of the actual dues for which the rent case for ejectment was filed. This may or may not be so. In case, at the time when an order of deposit was sought in the M.R.C. a default had already occurred, for which the Rent case was duly filed, a subsequent order of deposit in the miscellaneous rent case cannot purge that default unless, of course, requisite and lawful explanation, if any, is available. Similarly, in the event all the arrears were not deposited in the miscellaneous rent case in the context of the commencing period of the deposit the remedy of ejectment would still remain available. Not only that, the landlord would be free to move an application complaining that all arrears were not deposited by the appellant tenant in the miscellaneous rent case, as was given out by her or on her behalf at the time when the order of deposit was made under section 16(1) of the Sindli Rented Premises Ordinance and the Controller would be free, again, to direct, though tentatively, due deposit of such amount with regard to which he was misled, on the basis of a statement which, if it were not found duly supported by record, can, at the very? least treated to be questionable, on the part of a litigant. Fraud vitiates all proceedings, howsoever solemn-and a false statement made with the knowledge that such statement was false, if made basis of an order, can always be reconsidered. Further, under section 20 of the West Pakistan General Clauses Act, 1956, an Authority competent to pass an order is also competent to recall, vary and alter the same. Such rule in the context of the Sindh Rented Premises Ordinance, 1979 has been reiterated by my learned brother Sajjad Ali Shah, J. in Haseen Ahmed Khan v. Irshad Khan PLD 1987 Kar. 16 thereby reaffirming the dicta of Noorul Arfin, J., in N.Q. Industries v. Mr. Bapai Kaikhusro P L D 1968 Kar. 589 and of Fakhruddin G. Ebrahim, J. in 1kramuddin v. Mahboob Ali in relation to West Pakistan Urban Rent Restriction Ordinance, 1959. I respectfully, subscribe to these views. However, these are observations made only in passing and whether or not any misstatement of the kind was actually, involved or the order, on principle, warranted reconsideration, are questions, which shall have to be determined only on the basis of the record and proceedings and not otherwise.

8. Subject to the foregoing observations this appeal is allowed and further proceedings before the learned Controller would be undertaken and continued in accordance with law. A.A./R-182/K? ??????????????????????? ??????????????????????? ??????????????????????? ??????????? Appeal accepted.