1995 PLP 422 (MLD)

The facts leading to the filing of the above appeal are that the respondent is the owner and landlord of the Plot No. R‑1271 Block No.1, Federal `B' Area, Sharifabad, Karachi and the appellant is tenant in respect of the ground floor of the aforesaid premises at the monthly rental of Rs.2,

000. The respondent filed eviction application against the appellant on the ground of default. The respondent averred in his eviction application that the appellant has wilfully failed to pay or tender the rent for the period from 10‑3‑1990 to 9‑9‑1992 amounting to Rs.56,

000. The appellant has also wilfully failed to pay electricity charges amounting to Rs.8,297 and Gas charges amounting to Rs.5,

592. The appellant contested the eviction application by filing written statement. The respondent filed application under section 16(1) of the Sindh Rented Premises Ordinance, 1979. The appellant contested the application. The learned Controller by order, dated 17‑2‑1993 directed the appellant to deposit arrears of rent from 10‑3‑1990 to 28‑2‑1993 amounting to Rs.65,000 electricity charges amounting to Rs.8,297 as well as Gas charges amounting to Rs‑5,592 within thirty days. The appellant was further directed to deposit future rent at the rate of Rs.2,000 per month on or before 10th of each succeeding month. The respondent filed an application under section 16(2) of the Ordinance praying to strike off the defence as the appellant failed to deposit arrears of rent, electricity charges and Gas charges. The appellant resisted the application. The learned Controller on consideration of the arguments allowed the application as stated in the earlier part of this order. Mr. Zahid Marghoob, learned counsel appearing for the appellant contended that the order, dated 17‑2‑1993 is neither a proper nor a legal speaking order. He submitted that the learned Controller has condemned the appellant unheard at a stage which required summary enquiry and positive evidence. I have perused the application under section 16(1) and (2) of the Ordinance and the impugned orders passed by the learned Controller. I am inclined to hold that the learned Controller has no power under section 16 of the Ordinance to review the order but when an application for stricking off the defence is filed on the ground of default of tentative rent order, he has jurisdiction to consider whether to order for stricking off or not to strike off defence if a case is made out within the purview of the law as pronounced by the Superior Courts. The compliance of order passed under section 16 (1) of the Ordinance, is a condition precedent for requiring the Rent Controller to examine bona fides or correctness of various defence pleas of tenant. It was held in the case of Mushtaq Hussain v. Muhammad Shafi 1979 SCMR 496 that the order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or amount available for adjustment to the tenant, should be given because adoption of that cause will tantamount to starting a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Repealed Ordinance (section 16 of the present Ordinance) for directing deposit of tentative amount of rent. In Ziaullah Shah v. Syed Riaz Ahmed 1981 SCMR 538 it was observed: "The scheme of the Ordinance appears to be that in the first instance the Rent Controller must fix the tentative rent on the basis of the material produced before him and that the tenant must comply with the said order subject to the adjustment of the amount paid when the rent is finally determined on the decision of the merits of the case as will appear from subsection (6) itself which refers to the determination mentioned in its earlier part as `approximate' while `finally determine' is the expression used in the latter part of the subsection. A determination to this effect will only be possible if the tenant defends the ejectment proceedings. If he fails to comply with, the order under section 13(6) he is forbidden to contest the proceedings as his defence is liable to be struck off under the law. However, we may observe that when the rate of rent was specified in the rent note, the contention raised by the petitioner that the rent was, in fact, Rs.300 per month and the amount mentioned in the rent note was incorrect, is patently a dishonest plea to which no importance can be attached." In Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1 it has been laid down by the Supreme Court that for the purpose of passing an order under section 13(6) or section 16(1) of the Ordinance, a Controller is not required to determine quantum or rate of rent monthly if the same is in dispute, but is required to determine such amount, approximately and consequence of non‑compliance of order entails summary disposal of the case without taking any further proceedings. The learned Controller while fixing the rent tentatively under section 16(1) had taken into consideration the written statement and the objections filed by the appellant. He had observed that the appellant had not denied the tenancy and only rate of rent denied by the appellant. He had perused the tenancy agreement and proved that the rate of rent is Rs.2,000 per month. The appellant did not produce any document in support of his plea that he had paid rent to the respondent. The order under section 16(1) was, therefore, justified and legal. The appellant has not shown any valid ground for not depositing the rent in terms of section 16(1), therefore, there is a clear default and the learned Controller has rightly struck off the defence. The appeal is dismissed in limine. The above are the reasons for the short order, dated 18‑8‑1993 dismissing the appeal in limine on conclusion of the arguments. H.B.T./M‑2012/K Appeal dismissed.