1992 PLP 684 (CLC)

5. 14‑4‑1984 Rs.1,400 Sept./Oct.1983 6. 24‑9‑1984 Rs.4,900 Nov. 83 to May, 1984 7. 12‑3‑1985 Rs.4,200 June to Nov. 1984." The appellant in her objections conceded the payment of rent for this period January 1983 to November 1984 only by cheque but added that these payments did not depict the correct position" because rent was paid by cash also. It is incomprehensible why the payment by cash (and that too without receipt) should be made from the very month from which default is alleged. The Rent controller was, therefore, justified in directing the appellant to deposit arrears for the alleged period of default. Besides, there is no question of recording evidence of witnesses before passing order under section 16(1). If order under section 16(1) is passed after recording evidence and determining the arrears, here would be no question of passing order for tentative deposit of rent because the question of arrears would stand finally determined and, therefore, a final order granting or rejecting the ejectment petition could be passed, thus rendering section 16 quite redundant. Learned counsel of the respondent has very aptly drawn the attention of the Court to the judgment reported as 1983 CLC 1309 (Muhammad Bashir v. Allah Dad) which is in respect of section 13 of the repealed 1959 Ordinance which is analogous to section 16 of the New Ordinance of 1.979 and in which judgment it is held at page 1313 (in para marked `D') that "in postponing the elaborate enquiry till the stage contemplated by second part of section 13(6) was reached, he appears to have acted in consonance with the policy and mandate of law. It cannot be reasonably said that he committed excess of jurisdiction or failed to exercise jurisdiction." Learned counsel of the respondent also referred me to the case of Choudhri Rahimuddin v. Ch. Jalaluddin (PLD 1991 SC 484) which totally shatters the defence taken by the appellant as to the recording of evidence by the Rent Controller before order under section 16(1) of the Ordinance is passed. Moreover, objections to application under section 16(1) also do not contain the name of any witness. These names appear for the first time in objections on application under section 16(2) and even then their addresses are not disclosed.

5. The next contention of learned counsel is that the arrears of rent were not determined by learned, Rent Controller and this determination was left with the appellant and, therefore, order passed under section 16(1) is illegal. This objection is based on false premises since order under section 16(1) shows that the appellant was directed to deposit Rs.22,400 by way of arrears representing arrears of rent for the period December 1984 to June 1987 @ admitted rate of Rs.700 per month. No doubt, the appellant was permitted to adjust the amount deposited by him in Misc. Rent Case No.1087 of 1986 while depositing the arrears but this was a concession granted to him but it does not mean that the Rent Controller had not determined the amount of the arrears.

6. Moreover, an order under section 16(1) of the Ordinance of 1979 consists of two parts, that in respect of deposit of arrears and that in respect of deposit of monthly rent and both parts are independent of each other and even when the part pertaining to the deposit of arrears is defective and illegal, the other part pertaining to the future monthly rent must still be complied with if it is valid and legal as held in PLD 1985 Kar. 698 (Ali Jan v. Shujauddin), wherein it was held at page 703 that: " The Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all that his order as a whole would be illegal. It is not disputed that the Controller had jurisdiction to pass the second direction as to deposit of future rent as contained in the order dated 23‑9‑1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though they may be contained in one order for the reason that there may be cases where there may not be any arrears of rent to be paid. In such cases there will not be any order by the Controller for deposit of arrears of rent. There will be an order only for deposit of future rent and in such case there could be a default in respect of future rent only. We may consider the question from another angle. Assuming the Controller had passed the order of deposit of arrears of rent according to law and also the order of deposit of future rent again in accordance with law and the appellant had complied with the order of deposit of arrears of rent but had not complied with the order of deposit of future rent, still the tenant would have been liable to be evicted from the premises. Thus, we are clear in our mind that the two directions which are required to be given by the Controller are independent of each other." So far as monthly rent is concerned, there is no dispute whatsoever, even about the rate of rent, but I find that the order under section 16(1) has been violated even in respect of monthly rent as well. This is proved by the report dated 2 10‑1991 of the Serishtedar of the Court of the Rent Controller concerned. I had called up to date report after the conclusion of the hearing of the appeal because learned counsel of the appellant contended that there was no default in the deposit of monthly rent but the appellant had misplaced the receipts of deposits. Period of arrears is upto June 1987. Thus the rent of July 1987 was to be deposited before the 10th of August and in Rent Case No.1413 of 1986 in which order under section 16(1) was passed. However, the report of Serishtedar shows that the first deposit in Rent Case No.1413 of 1986 is of 18‑11‑1987 for Rs.1,400 which is evident! the rent for the months of July and August. Rent of July was thus deposited late by three months and eight days and of August was deposited late by two months and eight days. There is default even in respect of the subsequent months. For the sake of convenience, all the deposits made by appellant in Rent Case No.1413 of 1986 (as per report of Serishtedar) are given below:‑ S. No. Date Amount Period (Rs.) 1- 18‑11‑1987 1,400 July & August 1987 2- 28‑1‑1988 1,400 Sept. & Oct. 1987 3. 2‑4‑1988 1,400 Nov. & Dec. 1987 (No deposits in the rest of 1988 and during entire 1989 and 1990). S. No. Date Amount Period (Rs.) 4. 6‑3‑1991 2,100 Jan, Feb, March 1989 (late by three years) 5. 26‑5‑‑1991 9,800 (For 14 months April 1988 to May 1989). 6. 13‑6‑1991 700 June 1989 (late by two years) 7. 9‑7‑1991 700 July 1989 (late by two years) 8. 8‑8‑1991 700 August 1989 (late by two years) 9. 9‑9‑1991 700 Sept. 1989 (late by two years). Thus, there is default of over two years even in the deposit of monthly rent and whatever rent has been deposited was always deposited very late. And Hon'ble c Supreme Court has held in Muhammad Umar v. Aiysha Aziz (1981 SCMR 276) that a delay of even three days could not be condoned if it was not shown that it was for reasons beyond the control of the tenant.

7. As such, even if the default in respect of arrears of rent is ignored‑‑ and I have held that there is no justification to ignore this default‑‑even then the defence of the appellant is liable to be struck off for this colossal default in the deposit of monthly rent.

8. After the passing of the order under section 16(1) on 1‑&1987e appellant could not lawfully deposit any rent in his Misc. Rent Case No.1087 of 1986 and if he made any deposit in Misc. Rent Case No.1087/1986 after 1st August 1987, it must be ignored for purposes of section 16(2) of the Ordinance. Even so, the first deposit made in Misc. Rent Case No.1087 of 1986 after the passing of 16(1) order on 1‑8‑1987, is of 29‑9‑1987 for Rs.1,400 which must be for the months of July and August, 1987. No rent of July was to be deposited by 10th August and rent of August by 10th September. Thus, there is default in the deposit of rent for the months of July and August, 1987, even if deposits in Misc. Rent Case No.1087 of 1986 are taken into account.

9. It is thus clear that the appellant has, beyond any shadow of doubt, defaulted in the deposit of arrears of rent as well as future monthly rent and, therefore, learned Rent Controller very rightly struck off the defence of the appellant under section 16(2) of the Ordinance. The impugned order is, therefore, maintained and the appeal is dismissed with costs. In view of the gross and contumacious violation of the order under section 16(l) of the Ordinance, no further time is allowed to the appellant for the vacation of the premises. H.B.T./M‑1546/K Appeal dismissed.