M. SALEEM FAROOQUI Versus SAEED MUHAMMAD BASHIR

1. This appeal arises from the order dated 10‑2‑1987 of the learned Vth Senior Civil Judge/Rent Controller, Karachi East, passed in Rent Case No.429/86 whereby he has allowed the ejectment application and directed the appellant to hand over possession of the premises in question in one month from the date of order.

2. The only issue involved in this appeal is as to whether the appellant had committed default in payment of rent. The respondent made an application under section 15 of the Sind Rented Premises Ordinance, 1979 (for short 'the Ordinance') on 5‑10‑1981 alleging therein that the appellant was a habitual defaulter in payment of rent; and that he was in arrear of rent amounting to Rs.5,950 for the period commencing from July, 1980 to August, 1981. The appellant despite opportunities failed to file written statement. He, however, cross examined the respondent. On the basis of the evidence on record, the learned Rent Controller by his impugned order held that a perusal of Nazir's report produced by the respondent himself showed that the appellant was depositing rent in court from August, 1980 and had paid rent regularly upto the filing of the application. He, therefore, held that he did not find any default to have been committed in payment of rent as alleged by the respondent. He further observed that as per own admission of the respondent in cross‑examination the rent of the premises was Rs.400 per month inclusive of electricity, water, gas and conservancy charges. The learned Rent Controller further remarked:‑

3. "Here it is also important to note that applicant in his very cross‑examination had admitted that since July, 1980, opponent is paying electric charges himself direct to K. E.S.C., therefore, the deposit of Rs.400 per month in no way can be said to be less deposit of rent."

4. The learned Rent Controller, however, then proceeded to scrutinize whether the payment of rent for the months subsequent to the filing of the application had been duly made by the appellant in time or not. In doing this exercise, he found that the appellant had failed to pay the rent within the statutory period for the months of May, June and July, 1983. The rent for these months was found to have been deposited after 8/10 days of the due dates. The learned Rent Controller, however, observed:

5. "Though there is the delay in payments of rent in all these months is only from 8 to 10 days and can be ignored as technical default but the rents for September, 1983 and October, 1983 deposited by the opponent on 9‑1‑1984 and 11‑3‑1984 instead of depositing the same on 30‑11‑1983 and 30‑12‑1983 respectively, cannot be ignored because in both these deposits there is delay of one month and nine days and of two months and eleven days."

6. Being of the view, that since the above specific defaults in payment of rents had been committed during the pendency of the case, it could also be taken note of by him, for answering the issue of default in the affirmative so he did it accordingly and allowed the application as stated above.

7. Mr. Asad Ali Bilgrami, learned counsel for the appellant submitted that having held in his impugned order that the rent for the period from July, 1980 to August, 1981 had been `duly paid by the appellant, there was no course open to the learned Rent Controller but to dismiss the application. The learned counsel urged that if the learned Rent Controller was of the view that he could legally order eviction of the appellant on the ground of default in payment of rent for the months subsequent to the filing of the application then it was incumbent upon him to have provided the appellant a fair and reasonable opportunity to prove that there had been in fact no default. The failure on the part of the learned Rent Controller to do so has rendered his order bad in law for having been passed in violation of principles of natural justice. Lastly, the counsel submitted that along with the memorandum of appeal he has filed a schedule showing the dates,' receipts and the amount of rent paid for different months through Misc. Rent Case No. 4417/80 and from a bare perusal of it, it is explicity, clear that the rent for the months of September and October, 1983 had been paid on 9‑10‑1983 and 8‑11‑1983 vide receipt Nos. 2004 and 25532 respectively. He emphasised that the respondent has in no way controverted the information given in the said schedule, which is duly supported by the copies of the receipts also filed along with the said schedule. He also stated that since the Rent Controller has himself held that besides the rent the amount of electricity charges had been paid by the appellant directly to the KESC and the said amount is adjustable against the amount of rent payable by the appellant and if the amount so paid by the appellant is taken into consideration then there would be left no default, rather overpayment will be established.

8. Mr. S. S. Jahangir, learned counsel for the respondent, on the other hand, supported the impugned order. He was, however, unable to cite any authority in support of the impugned order. I, therefore, allowed him one day's time to find out the authority, if any, which lays down that the ejectment application could be allowed for default in payment of rent for the months subsequent to the filing of the rent application. When this case was taken up today the learned counsel candidly admitted that he could not lay his hands on such authority. He also did not controvert the factual statement made by the learned counsel for the appellant to the effect that the learned Rent Controller did not provide the appellant with an opportunity of hearing regarding the default in payment of rent for any month subsequent to the filing of the application.

9. I have given due consideration to the submissions made by the learned counsel for the parties and have also perused the impugned order and I am clearly of the opinion that it cannot be sustained for more than one reasons. It is an admitted fact that the respondent had sought the eviction of the appellant on the ground of default in payment of rent in respect of the demised premises for the months of July, 1980 to August, 1981. The learned Rent Controller, as already pointed out above, has candidly held that the appellant had committed no default in payment of rent for any month during the said period. There was admittedly no order passed under section 16 (1) of the Ordinance as well. Now, therefore, what remains to be seen is whether the non‑payment or late payment of rent for any one or more months subsequent to the making of the ejectment application could, in the absence of any order under section 16(1) of the Ordinance, lead to the passing of an order of eviction of the appellant (tenant). Before proceeding further, I think, I should reproduce hereunder the relevant provision of section 15 of the Ordinance as the solution to the above problems lies in its construction. Section 15 reads as under:

10. "15(1) Where a landlord seeks to evict the tenant otherwise than in accordance with section 14, he shall make such application to the Controller.

(2) The Controller shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that

(i) ..........................

(ii) the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment.

(iii) the tenant has, without the written consent of the landlord

(a) handed over the possession of the premises to some other person;

(b) used the premises for the purpose other than that for which it was let out;

(c) infringed the condition on which the premises was let out;

(iv) the tenant has committed such acts as are likely to impair the material value or utility of the premises;

(v) the tenant has indulged in such activities as are causing nuisance to the neighbours;

(vi) the premises is required by the landlord for reconstruction or erection of a new building at the site and the landlord has obtained necessary sanction for such reconstruction or erection for the authority competent under any law for the time being in force to give such sanction;

(vii) the landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.

(3) Where the landlord who has obtained the possession of the premises for the purpose of reconstruction of the building or erection of a new building, shall demolish the existing building within six months of the taking over of the possession of the premises or, as the case may be, commence the erection of the new building within two years of the taking over of the possession of the premises, and in case the landlord fails to demolish the building as aforesaid, the tenant shall be entitled to be put into possession of the premises, and for the purpose he may apply to the Controller for an order in that behalf.

(4) Where the landlord constructs the building as aforesaid the tenant who was evicted from the old building may, before the completion of new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation and the Controller shall make an order accordingly in respect of the area applied for or such smaller area, as considering the location and type of the new building and the needs of the tenant, he deems just and on payment of rent to be determined by him on the basis of rent of similar accommodation in the locality."

11. A plain reading of the above‑reproduced section 15 (2) (ii) of the Ordinance clearly shows that the jurisdiction of the Rent Controller to order the eviction of the tenant depends upon, firstly, the making of an application by the landlord to him stating that the tenant has failed to pay rent in respect of the premises in his possession within 15 days after the expiry of period fixed by mutual agreement between him and the tenant for payment of the rent, or in the absence of such agreement, within 60 days after the rent has become due for payment and, secondly, upon the satisfaction of the Rent Controller to the correctness of the statement made in the application. The landlord has thus to make a specific mention of the month or months for which the tenant was in arrears of rent and/or had failed to pay rent in respect of the premises in his possession within the time as mentioned therein. The Rent Controller is thus not ceased of the jurisdiction under section 15 (2) (ii) of the Ordinance to order the eviction of the tenant for his failure to pay rent for any period subsequent to the period of making the application to the Controller under section 15 (1) of the Ordinance. For the arrears of rent at the time of making the application for eviction and also for the payment of rent for the subsequent period the legislature has specifically made a provision under section 16 of the Ordinance. Subsection (i) of section 16 again empowers the Rent Controller to determine the arrears of rent due and order the tenant to deposit the same within the period as he may fix in that behalf and also to direct the tenant to deposit monthly rent regularly on or before the 10th of every month until final disposal of the case. The exercise of this power has again been made subject to the presentation of an application by the landlord and after making such summary enquiry as the Controller deems fit. The legislature has thus not conferred upon the Rent Controller an unbridled power to order eviction for the default in payment of rent for the period subsequent to the making of the application under section 15 (1) of the Ordinance. The Rent Controller is, however, under a legal obligation, on the application under section 16 by the landlord and after such summary inquiry as he deems fit to make, to determine the arrears of rent due and to order the tenant to deposit the same and further to direct the tenant to deposit monthly rent in future regularly on or before the 10th of every month until the final disposal of the case. The non‑compliance on the part of the tenant of the order made by the Rent Controller under subsection (1) of section 16 of the Ordinance renders the tenant to be visited by a severe penalty of his defence being struck off and confers a right upon the landlord to be put into possession of the premises without any further proceedings within such period as may be specified by the Controller in that behalf in his order. The power of the Rent Controller to deal with the failure of the tenant to pay rent for any month subsequent to the making of the application under section 15 (1) is controlled by section 16 cannot be exercised in a manner otherwise than the one provided thereunder. To put it otherwise, if the landlord does not make an application under section 16 (1) requesting the Controller to determine the arrears of rent due and order the tenant to deposit the same and further seeking a direction to the tenant to deposit monthly rent regularly, the Rent Controller cannot suo motu pass an order either for depositing the arrears of rent or to deposit future monthly rent and/or to take note of and pass any order for the failure of the tenant to make payment of the arrears of the rent of the subsequent months. In this view of, the matter, there is no escape from the conclusion that the learned Rent Controller in the instant case has acted in excess of his jurisdiction in ordering the eviction of the appellant/ tenant for his failure to deposit the rent for the months of September and October, 1983 by or before 30th November, 1983 and 30th December 1983 respectively. His order is, therefore, patently liable to be struck down. Moreover, it is also liable to be set aside for having been passed in violation of the principle of natural justice inasmuch as no opportunity .was provided to the appellant to explain the said alleged late payments.

14. For foregoing reasons the appeal is allowed and the impugned order is set aside. The parties are, however, left to bear their own costs.

12. H . B . T . / M‑410/ K Appeal allowed.