1991 PLP 986 (SCMR)

(11) Whether the learned Rent Controller was justified in ordering the future monthly deposit of water charges and Betterment Tax when there was no such prayer made by the respondent in his application under section 16(1) of the Sindh Rented Premises Ordinance, 1979? (III) Whether there was any agreement between the parties for payment of water charges and Betterment Tax much less an agreement to pay Rs.81.02 per month towards Betterment Tax as rent or otherwise? (IV) What is the effect of the failure of respondent to seek deposit of water charges and Betterment Tax alongwith monthly rent in the earlier Rent Application No.462/72 made under the Sindh Urban Rent Restriction Ordinance, 1959; (V) Whether it was open to the Rent Controller to strike off defence without giving the petitioner an opportunity to establish that the order dated 30‑7‑1984, made under section 16(1) of the Sindh Rented Premises Ordinance, 1979, was itself illegal and unjustified and without affording to the petitioner an opportunity of demonstrating that the failure to comply with the order dated 30th July, 1984 was not wilful? (VI) Whether the learned Single Judge in the High Court was in error in holding that it was not open to the petitioner to urge that the order dated 30‑7‑1984, was on merits unjustified and unsustainable in law and that such a plea could only be raised and determined upon final adjudication of the Rent Application? (VII) Whether the impugned order has been passed without proper application of mind; (VIII) Whether in the facts and circumstances of the case the petitioner had defaulted in complying with the order dated 30‑7‑1984, and the Rent Controller was justified in striking off the defence of the petitioner, and the learned Single Judge in the High Court was right in affirming the same? (IX) Whether the Rent Controller was justified in dismissing the following applications filed by the petitioner: (1) under section 151, C.P.C. dated 28‑5‑1984. (2) under section 151, C.P.C. dated 28‑5‑1984. (3) under section 151, C.P.C. dated 28‑5‑1984. (4) under section 5 of the Limitation Act, 1908 dated 15‑8‑1984. (5) under section 151, C.P.C. dated 10‑5‑1986?" Before the High Court among other contentions, it was urged that firstly the non‑compliance with the order of deposit of dues was due to circumstances beyond the control of tenants as explained in their objections and secondly that the Betterment Tax was not payable as rent nor was it the liability of the tenants to pay the same, so that no directions could be made by the Controller under section 16(1) of the Ordinance to deposit the same. Both these contentions were repelled by the learned Judge in the High Court. On the first point the learned Judge after taking into consideration the affidavits of the parties reached the conclusion that the appellant had disregarded the order of the Rent Controller without any reasonable cause. As to the second contention mentioned above, it would be necessary to refer to the findings of the learned Judge in his own words as under: "Having reached the above conclusion upon the application of the facts of this case I do not feel called upon to deal with the other contentions urged by the learned counsel for the appellant before me. However, in the passing I may observe that the second above noted contention of the learned counsel is without substance inasmuch as having committed the default in payment of the current rent as per tentative rent order of the learned Rent Controller ix was not legally open to the appellant to be heard until it was shown that its defence was not liable to be struck off for non‑compliance of the order made under section 16(1) of the Ordinance. The question of the appellant's being liable to deposit the betterment tax or that the water charges were being deposited in K.M.C. and that for that reason it was absolved of the responsibility to pay the same could be determined upon the final adjudication of the case if the appellant would not ‑have debarred itself from contesting the, ejectment proceedings." Mr. Fakhruddin G. Ebrahim firstly urged that the learned Judge in the High Court erred in refusing to go into the question of the legality of order passed by the Controller under section 16(1) dated 30th July, 1984. He referred us to Zarina Khawaja v. Mehboob Shah (P L D 1988 S C 19), in support of the proposition that a tenant against whom an order under section 16(2) of the Ordinance striking off his defence has been passed is entitled to challenge the validity of the order passed under section 16(1) in an appeal from the final order of eviction passed against him. He further submitted that landlord having prayed in his application under section 16(1) for an order for depositing the arrears only the learned Controller had no jurisdiction to make any further directions with regard to the deposit of future dues of water ‑and conservancy charges and Betterment Tax. Learned counsel also urged that Betterment Tax was the liability of the landlord and in any case it was not agreed to be paid by the tenants, consequently it did not form part of the rent so as to be directed to be deposited under section 16(1) of the Ordinance. Mr. Khalilur Rehman learned counsel for the landlord has defended the order of the High Court and has urged that the defence of the tenants was rightly struck off as there was no good ground to condone the default made by them in compliance of the order passed by the Controller for deposit of dues. He has referred to paragraph 2 of the application for ejectment, in which the landlord had pleaded that the agreed rent payable for the premises was Rs.700 and "in addition the water and conservancy charges payable to the Karachi Metropolitan Corporation and also the opponent's share in the Betterment Tax, which amount of charges/taxes are also payable by the opponent as and by way of rent:" According to the learned counsel, therefore, the question whether the tenants were liable to pay the aforesaid charges in addition to the agreed rent, by way of rent was an issue‑raised on the merits to be adjudicated at the trial. In the premises, the argument of the learned counsel was, that unless the tenants complied with the tentative order under section 16(1), they were not entitled to raise any plea in defence on the merits. Learned counsel for the landlord also placed reliance on an unreported judgment of this Court dated 20th February, 1989, in Civil Appeal No.70‑K/1988, Raziuddin v. Mst. Hashmi Begum, in support of this submission. We have carefully considered the arguments of the learned counsel. We find that the learned Judge in the High Court has taken the view that even in appeal from the final order passed under section 16(2) of the Ordinance, the appellant could not be heard without his first showing that his defence was not liable to be struck off. He has additionally expressly observed that the question of the liability of the tenants to deposit the Betterment Tax or water charges, was only to be determined upon final adjudication, in case the tenants were not debarred from contest on merits on account of their defence having been struck off. We are unable to subscribe to this view of the law taken by the learned Judge. It is well settled that a Tribunal of limited jurisdiction can pass binding order only when the foundational facts, upon which its jurisdiction is based are either admitted or first determined by the Tribunal before passing orders of the nature falling within the ambit of its jurisdiction as conferred by the statute. It, therefore, logically follows that an order under section 16(1) of the Ordinance can only be passed, in respect of the arrears of "rent dues" and in respect of future monthly "rent". The key‑word here is "rent" which is defined in section 2(i) as under: "Section 2(i) "rent" includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid." It, therefore, appears that the legislature had in its wisdom given an extended meaning to the word "rent" to include, inter alia, water charges and other charges which are payable by the tenants but are unpaid. Therefore, it is to be determined whether so far as the other charges are concerned the same are payable under the agreement of tenancy or the law by the tenants and have remained unpaid, so as to qualify as rent. Unless an amount is rent within the meaning of the Ordinance obviously the Rent Controller will have no jurisdiction to direct its deposit. This does not mean that in any dispute with regard to the C quantum of rent the Rent Controller should finally determine the arrears of rent due or the rate of rent payable. These can be tentatively determined by a summary inquiry, leaving the final adjudication at the time of decision of the main application for ejectment, in connection with the question whether the tenant is liable to eviction on account of non‑payment of rent under section 15(2)(ii) of the Ordinance. But as 'to the nature of the payment the Controller must determine whether the amount demanded is in the nature of rent as defined in the Ordinance, before he can exercise the power to issue a direction under section 16(1) and penalize a tenant for disobedience of the order under section 16(2) of the Ordinance. Therefore, if the basic order itself is challenged as without jurisdiction, the resultant order of eviction can itself be challenged on that basis. As there is no right of appeal from an order passed under section 16(1) obviously any illegality in passing the said order, can be urged as a ground in an appeal from the final order before the High Court. In the case of Zarina Khawaja referred to above, the law in this respect was laid down as hereunder: "It is not denied that under the present law also there is no provision for filing an appeal against an interim order under section 16 fixing the rent at tentatively and making direction for its deposit. It cannot, however, be said that the tenant is remedyless with regard to the tentative determination under this section. He can obviously challenge the same when filing an appeal against the final order if it is passed against him. Therefore, when an appellate Court is examining the validity of an order of striking off of the defence of the tenant finder section 16, the questions relating to the determination of the tentative rent and the direction to make the deposit; can be examined with a view to affirming or setting aside the order striking off of the defence The unreported judgment on which reliance has been placed by ‑the learned counsel for the landlord, is not of much assistance as the facts of that case appear to be distinguishable from the facts of the case in hand. In that case, it appears that the tenant was admittedly paying Rs.165 over and above the agreed rent of Rs.200 towards betterment Tax and there was clear default in compliance with the tentative dent order in respect of a number of months even with regard to the amount of rent payable for the premises. Besides the tentative rent order in that case was passed under section 13(6) of the repealed Ordinance of 1959, in which the term "rent" was not defined as in the present Ordinance. The decision in that case, therefore, did not turn upon the question Whether the initial order passed under section 16(1) was itself illegal and without jurisdiction. We may also refer to Mian Muhammad Abdullah v. Nawab Din 1971 S C M R 336 and Jiando Khan v. Hakim Muhammad Ishaq (P L D 1964 Kar. 61) in which it was held that the tentative order for deposit of rent can be challenged in an appeal from the final order of eviction passed in consequence of the order striking off defence of the tenant. Therefore, the learned Judge in the High Court did not proceed legally in not examining the contention that the order of the Rent Controller under section 16(1) was defective. However, we do not find any force in the contention that merely because the landlord did not expressly pray for a direction to the tenants to deposit future dues of rent, the Rent Controller was not competent to be give such a direction. It appears to us that once the provisions of subsection (1) of section 16 of the Ordinance are invoked on an application by the landlord, it becomes the duty of the Controller, to determine the arrears of rent due and also pass further orders directing the tenants to deposit monthly rent in accordance with the prescribed time until the final disposal of the case. Non‑inclusion of a prayer for deposit of future rent would, therefore, not be material in considering the validity of such an order. Learned counsel wanted to address arguments on the question whether water and conservancy charges and Betterment Tax constitute rent within the meaning of the Act. However, since the High Court had declined to go into this question, we think that the said question in the first instance be decided by the High Court. In the result we accept this appeal, set aside the order of the High Court and remand the case to the High Court for a fresh decision in the light of this judgment after hearing the parties who will be at liberty to raise any pleas that are available to them. In the circumstances of the case there shall be no order as to costs. A.A./A‑832/S Case remanded.