1990 PLP 1170 (CLC)

Iqbal Ahmad for Respondent. Dates of hearing: 3rd and 6th December, 1989. This is a tenant's Appeal. Originally, the landlord of the disputed premises was one Abdul Rasheed, who died on 13‑2‑1983. Notice of devolution, under section 18 of the Sindh Rented Premises Ordinance, dated 13‑12‑1983, from the legal heirs of the deceased landlord, was served on the appellant‑tenant, in reply to which, on 1‑1‑1984, such tenant requested for transfer documents, as well as, Guardianship certificate, in respect of the minor legal heirs. While on tile original of such reply nothing was indicated by the tenant‑Bank but, simultaneously, an office endorsement was made on its copy for deposit of rent, apparently, in the names of the purported legal heirs. Such deposit was made in a Miscellaneous Rent Case, as from March, 1985. It is claimed by Noor Ahmed, respondent, that he obtained Letters of Administration and despatched notice dated 15‑10‑1985 to the tenant, alongwith a copy thereof, but no reply to tile same was received. Mr. Akmal Wasim, for the appellant‑Bank denies having received such notice or a copy of Letters of Administration. Be that as it may, on 16‑12‑1985, Noor Ahmed, aforesaid, filed a Rent Case, from which the present appeal has arisen. In such ejectment Case, on 19‑3‑1986, an application under section 16(1) of the Sindh Rented Premises Ordinance was submitted for deposit of rent from March, 1984, to February, 1986, in response whereto Objections were preferred, on 10‑5‑1986, wherein it was maintained that no arrears were due as the rent was deposited in Court and continued to be so deposited. This was followed by rent order, dated 10‑7‑1986, wherein arrears of rent from March 1984 to June 1986 a period of 28 months, were directed to be deposited, at tile rate of Rs.1,000 per month, aggregating Rs.28,000 in all. This, however, was subject to adjustment of the rent already lying deposited. On 11‑8‑1986, however, 'a statement was submitted by the tenant that deposit could not be made in the Rent Case, due to certain difficulties and that the rent continued to be deposited in the Miscellaneous Rent Case. This was followed by an application, dated 17‑2‑1987, for striking off the defence, but that application was dismissed, per order dated 15‑7‑1987. Noor Ahmed, thereupon filed F.R.A. bearing No.75/88 in this Court which, on 18‑2‑1988, was dismissed by my learned brother Saleem Akhtar, J. in limine, holding that the Controller could only direct deposit of rent, as such, and since the direction for adjustment of the deposited rent in the Miscellaneous Rent Case involved vagueness and an irregularity, defence of the tenant could not be struck off. Direction was made for a fresh order of deposit. On remand, on 5‑7‑1588 a fresh application was moved for deposit of rent under section 16(1) of Sindh Rented Premises Ordinance, in pursuance whereof another order was made for such deposit on 17‑9‑1988. However, as the tenant did not make deposit, in compliance, its defence was again struck off on 13‑4‑1989. The present appeal has been preferred questioning the order last mentioned. I have heard Mr. Muhammad Akmal Wasim, for the appellant‑tenant and Barrister 1qba1 Ahmed for the respondent.

2. It is clear from a perusal of order dated 17‑9‑1988 that the Controller, in passing such order of deposit, committed the same error, as was involved in the earlier order, passed on 10‑7‑1986, in that the amount ordered to be adjusted and lying in the Misc. Rent Case was again not quantified and all that was directed was that such deposited amount be transferred to the Rent Case and adjusted in the context of the required deposit in such case. In Muhammad Aslam v. Muhammad P L D 1982 Kar. 107 my learned brother Saleem Akhtar,J, expressed the opinion that under section 13(6) of the then applicable Sindh Urban Rent Restriction Ordinance, VI of 1959, if the Controller passed an order which did not determine the due amount approximately and allowed vagueness to creep into the order by leaving calculations, as to deposited rents in Miscellanesous Rent proceedings, to the parties or to any other person then such could not be an order, strictly, in compliance with the provisions in section 13(6) of the aforesaid Ordinance. Relying upon the view of Wajihuddin Ahmed, J., in a Division Bench case of this Court, reported as Syed Ahsan Ali v. Jaffer Ali and another P L D 1964 Kar. 418, which was followed in Khair Muhammad Nizamani v. Abdul Quddus P L D 1965 Kar. 367 my learned brother came to the conclusion that the provision of section 13(6), aforesaid, being penal in nature, had to be strictly construed and if the order as to deposit of arrears or future rent did not, strictly, conform with law, the defaulting tenant could not be evicted for non compliance of a defective order. I cannot see as to how a different view of the matter can be under section 16 of the Sindh Rented Premises when the two statutory provisions involve similar incidents and connotations. As seen, an order of deposit of rent, be it under section 13(6) of Ordinance VI of 1959 or the Sindh A Rented Premises Ordinance, 1979 has to be certain, free of vagueness and must have an element of definiteness. Thus where calculations are left for the tenant to make or for him to confirm from another set of proceedings, such order involves departure from statutory requirements and fails to qualify the prescribed test for invocation of penal consequences.

3. There can be no cavil with the proposition that the rent lying deposited in a Mise Rent Case can be taken note of and even adjusted while passing an order of tentative deposit, under section 16(1) of Sindh Rented Premises Ordinance. However, as pointed out, it is essential that such deposited amount in the Misc. Rent proceeding is clearly quantified. This being done, if the Controller so desires, a direction can be made for transfer of such deposited amount from the Misc. Rent Case to the Rent Case itself and, due adjustment being given, the tenant can be directed to deposit the balance and accruing dues in the Rent Case. However, all the learned Controller did in this case was merely passing an order of transfer of the moneys lying in the Misc. Rent Case, without ascertaining and determining as to what exactly such amount was. This being the position of tile order, the dicta of my learned brother Saleem Akhtar, J., was, clearly, overlooked. Since, as a result, the order of deposit remained indefinite, uncertain, vague and even contrary to law, the provisions of section 16(2) of the Sindh Rented Premises Ordinance, for striking off the tenant's defence, could not bel called in aid, following upon non‑compliance.

4. However, Mr. Iqbal Ahmed, for the respondent, attempted to distinguish Major (Rtd.) A.S.A. Samad v._Lt.‑Col.(Rtd.) A. Hussain 1987 S C M R 1013 and Abdullah Ghangro v. Tahera Begum 1988 S C M R 970, relied upon by Mr. Akmal Wasim, by maintaining that the amount deposited in the referred Misc. Rent Case could not be reckoned, at all, as such deposit was in names different than that of the applicant in the Rent Case. Reliance has been placed on Ghulam Murtaza v. Vaqar Ahmed P L D 1980 SC 9, where Hon'ble Muhammad Afzal Zullah, J., speaking for the Court, opined that non‑deposit of rent in the name of the landlord, suing for ejectment, whom the tenant had specifically acknowledged as the landlord but deposit thereof in the names of a large body of persons namely, heirs of the deceased landlord, was not in confrmity with the Controller's order of deposit and constituted deliberate and contumacious disregard of orders. It is correct that when a person, after due order of deposit has been made against him in a pending Ejectment case, resorts to riling a Misc. Rent Case and deposits the rent due in the names of number of persons, out of whom the applicant seeking ejectment, is only one, such conduct constitutes contumacious disregard of orders and such disregad cannot be covered by the ratio in Major (Rtd.) A.S.A. Samad v. Lt.‑Col. (Rtd.) A. Hussain 1987 S C M R 1013 and Abdullah Ghangro v. Fahera Begum 1988 S C M R

970. However, in cases where there is some room as to doubt about the person or persons entitled to receive rent, as where the erstwhile landlord having died and succeeded by a large number of persons, as his legal heirs, and before any application for ejectment is riled, the tenant with a view to save himself from the rigours of default, applies for and makes deposit in Misc. Rent proceedings, which are followed, by an Ejectment case, subsequently filed, any continuation of such deposit, as made therein, can hardly be in disregard of orders of a contumacious nature, and the rule laid down in Re: A.S.A. Samad and Abdullah Ghangro ibid will apply. This is all the more so, as in the uncertainties of the situation generated, any other or others of the legal heirs of" the deceased landlord may elect to come forward and claim ejectment on default, in respect of his/their own entitlement. This, therefore, may constitute a sufficient cause for adopting a course of action in contemplation here. In fact, such argument of the learned counsel cuts both ways. If such adjustment, as was allowed by the learned Controller, could not be so allowed, the order of deposit would be rendered bad and tenant's defence would not have been liable to be struck off in consequence of non‑compliance. Surely, this self‑defeating consequence cannot have been in contemplation of the learned counsel. As such, there can be little doubt that the defence of the tenant was not liable to be struck off on the ratio in the case of Ghulam Murtaza.

5. Next, reliance is placed on a decision of Munawar Ali Khan, J. in Dr. Burjor M. Anklesaria v. Mst. Zenobia 1984 C L C 3253 to contend that, pursuant to the order of the Controller it was a duty of the tenant to secure the transfer of the amount lying deposited in the Misc. Rent case and it, having failed in that behalf, is liable to be ejected. On the facts of the cited case, this result cannot follow. In that case, an order, plain and simple, of deposit was made by the Controller. Thereupon, the tenant, apparently, approached another Controller, from whom he had obtained an order of deposit in the Misc. Rent proceedings and secured a further order of transfer of such deposited amount to the Rent Case its which an independent order of deposit had already been made. The process, of transfer, evidently, took time and such transfer did not materialise before the prescribed date in the order of deposit, directed under section 16 (1) of the Sindh Rented Premises Ordinance. In these circumstances it was held that the tenant could not take advantage of his own negligence, in effectuating the transfer of the deposited amount. The defence struck off, in consequence, was not revived. At any event, this view, perhaps, would not survive, following upon the dicta of the Supreme Court of Pakistan in Re: A.S.A. Samad and Abdullah Ghangro ibid, for such earlier do posited amount shall count also for the purposes of section 16 (1) of the Ordinance.

6. Even otherwise, the fact remains that in the order of deposit under section 16 (1) in the instant proceedings, there was no direction to the tenant for bringing about adjustment of arrears lying deposited in the Misc. Rent Case nor could such a direction made in law. The direction was a general one and can properly have been only of an administrative nature. It was none of the responsibility of the tenant. No adverse orders can be sustained, therefore on the basis of the opinion expressed by Munawar Ali Khan, J. in the referred case.

7. As a result, through a short order dictated in Court today, this appeal was allowed. The case shall go back to the Controller. After the deposited amount in the Misc. Rent Case has been pursuant to earlier order effectively transferred, the same would be quantified by the Controler before directing adjustment. Therefore, due fresh directions will be issued for deposit of such arrears, as there may be, as well as, accruing rents. Order accordingly. H.B.T./H‑209/K Case remanded.