1998 PLP 1271 (CLC)

Date of hearing: 4th November, 1997 This Court vide admission order, dated 29th November, 1995 admitted this Rent Appeal and observed as follows:‑‑‑ "(1) Heard Mr. Muhammad Younus, Advocate for appellant. He submits that during pendency of rent case the applicant and opponent had compromised. Rent was enhanced to Rs.3,500 instead of Rs.1,

200. The landlord/respondent accepted the rent and issued receipts which are available at page 69 of P & P. Therefore, rent accepted by way of Money Order. These documents have been ignored by the Rent Controller while passing order under section 16(2) and has directed the opponent/appellant to hand over possession with 60 days. Point raised require consideration. Admit. Notice." I am deprived of the assistance of both the learned counsel as they are absent since morning and it is 10.20 a.m. This First Rent Appeal is pending since 1995 as such I am deciding the case on the basis of record already available in this Court. When the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was filed the rate of rent was Rs.1,200 per month and the applicant (respondent herein) prayed for the deposit of rent amounting to Rs.9,

600. Learned Rent Controller passed the following order:‑‑‑ "Heard Advocates for both parties and perused Nazir Report very carefully which shows that Opponent has not committed any default as alleged by the applicant and Opponent has paid rent uptodate. Opponent is directed to deposit future rent in instant case in this Court without fail. Application under section 16(1) of the Sindh Rented Premises Ordinance stand dismissed. " When the order was passed on application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, one of the contentions urged by the appellant were that after the tentative order was passed the respondent settled the dispute and agreed to increase the rate of rent to Rs.3,500 and receive Rs.7,000 from him and also received further sum of Rs.35,000 as advance rent. Such contention of the appellant is supported by a receipt, dated 8‑11‑1994 executed by the respondent receiving Rs.7,

000. Thereafter, because of his refusal money orders were sent to him and such receipts were issued by the postal authorities and are available on record. The provisions of section 16(2) of the Sindh Rented Premises Ordinance, 1979 or penal provisions and it is expected of the Rent Controller that he should not pass an order of penal nature under section 16(2) of the Sindh Rented Premises Ordinance, 1979 until and unless the requirements, for passing such an order are fully met on the basis of material on record. Admittedly, in this case tentative rent order was passed for depositing the rent at Rs.1,200 per month. Admittedly on the face of record, subsequently, the parties, (it is alleged) compromised and the rate of rent was enhanced from Rs.1,200 to Rs.3,500 per month with effect from October, 1994. It is further alleged that thereafter since the respondent refused to receive the rent and refused to issue receipt, the rent was tendered through money orders. Thus, by virtue of the conduct of the parties, the original tentative rent order under section 16(1) of the Sindh Rented Premises Ordinance, 1979 was no longer holding the field as the rate of rent was increased. In such circumstances, the respondent was estopped from filing the application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 for the enforcement of tentative rent orders, dated 25‑1‑1993 which was passed when the rent was Rs.1,200 per month. Since that rent order was no longer holding the field as the rent was increased, therefore, sending the rent through money orders in the circumstances of the case is not in violation of the tentative rent order passed by the Court and the reliance of the learned Judge in the case of Abdul Basit v. Syed Humayun Arfan (1989 MLD 3597) was not apt. Equally the learned Trial Court erred in law by passing an order under section 16(2) of the Sindh Rented Premises Ordinance, 1979 which is impugned in this appeal, in view of changed circumstances and the conduct of the parties. In the above narrated circumstances, the impugned order is set aside and the case is remanded to the Rent Controller. Since this rent case is pending from 1992, Rent Controller is directed to decide the rent appeal on merits within six months. This appeal is allowed. Since the parties are not represented before me, therefore, no order as to costs is passed. A.A./F‑30/K Case remanded