ZUBAIR AHMAD Versus HASSAN MEHDI

The question raised in this appeal filed under section 21 of the Sind Rented Premises Ordinance, 1979, is whether the property tax paid by the tenant in respect of premises in dispute. could be adjusted towards the deposit of arrears of rent and monthly rent due, in compliance with the order passed under subsection (1) of section 16 of the Sind Rented Premises Ordinance, 1979.

2. The appellant is a tenant in respect of premises bearing No‑510/A, Block "L", North Nazimabad Karachi. The premises originally belonged to one Muhammad Abu Tahir, who left for Bangladesh in the year 1972. Thereafter, number of its claimants appeared and ultimately the same was taken over by the Administrator, Abandoned Properties Organization, Karachi. The appellant deposited the rent with this organization at the rate of Rs.400 p.m. till he was informed that this property was deleted from the list of abandoned properties and was restored to Mst. Abida Hasan Ara. The appellant, however, deposited the rent due in Misc. R.C. No.3912 of 1978. The respondent who claims to have purchased this property then served the appellant with a notice under section 18 of the Sind Rented Premises Ordinance, 1979, and then filed the application for ejectment against him on the ground of default in payment of rent and personal bona fide need. The respondent then made an application under section 16(1). The learned Rent Controller, Karachi, deferred the passing of order till the final stage. This application was repeated and this time the learned Rent Controller directed the appellant to deposit arrears of rent and monthly rent due. The respondent then made an application for striking off the defence of the appellant which was allowed by the learned Rent Controller vide order dated 13‑10‑1985. The order was challenged in F.R.A. No.95 of 1987, and the same was set aside on 16‑3‑1987, with the following direction:‑

"Under the circumstances, by consent the order is, set aside and the case is remanded for passing a fresh order after hearing the appellant on the application under section 16(2) of the Ordinance. If the appellant wishes to file objections to the application under section 16(2) of the Ordinance, he shall do so on the first date

3. The appellant filed objections and the learned Rent Controller vide order dated 30‑4‑1987, again struck off the defence of the appellant on the ground of failure to deposit monthly rent of November, 1984, within time. It is in these circumstances that the present appeal has been filed.

4. The grievance of the appellant in main is that he had paid a sum of Rs.835 towards property tax, and was thus entitled to adjustment of this amount towards the arrears of rent and monthly rent due, and if this amount is adjusted then he would not be in arrears. The learned Rent Controller disposed of this contention in the following words:‑

"From the perusal of these receipts it transpires that the opponent paid Rs.178 on 8‑12‑1979, Rs.174 on 14‑4‑1980, Rs.352 on 7‑9‑1982 and Rs.131 on 8th February, 1982, i.e. before tentative rent order was passed. Even otherwise this property tax has been deposited on behalf of one Muhammad Abu Tahir who has no concern with demised premises. However, whatever it may be, this amount paid to property tax department pertains to the period much prior to the date, the tentative rent order was passed. Therefore, the said payment cannot be adjusted towards future rent."

5. Section 14 of the Urban Immovable Property Tax Act, 1958, lays down:‑

"Where the tax due from any person on account of any building or land is in arrears, it shall be lawful for the prescribed authority to serve upon any person paying rent in respect of that building or land, or any part thereof, to the person from whom the arrears are due, a notice stating the amount of such arrears of tax and requiring all future payments of rent (whether the same have already accrued due or not) by the person paying the rent to be made direct to the prescribed authority until such arrears. shall have, been duly paid, and such notice shall operate to transfer to the prescribed authority the right to recover, receive and give a discharge for such rent. If the person paying rent willfully fails or neglects to comply with the notice aforementioned, the prescribed authority may, after giving him an opportunity of being heard, proceed against him as it would have proceeded under the provisions of this Act against the owner of the building of land in respect of which the tax is in arrears".

6. The amount of Rs.835 paid towards the property tax against the disputed property was thus a discharge towards arrears of rent p, of monthly rent due and the tenant was justified in claiming adjustment thereof. The appellant had invited the attention of Rent Controller about two payments in his objections dated 6‑7‑1980. Subsection (1) of section 21 of the Sind Rented Premises Ordinance, 1979, confines the right of appeal to final orders. No appeal is provided against an interim or interlocutory order. Therefore, the appellant could not have challenged the order of deposit of arrears of rent and monthly rent due, in which the plea of adjustment was not considered. He is, however, not debarred from challenging the order of deposit of rent after a final order is passed.

7. The disputed property originally belonged to Muhammad Abul Tahir and, therefore, the property tax was also deposited in name. At any rate the tax is paid in respect of a property and it is l immaterial if it was not paid in the name of the respondent. I am fortified in my view by cases reported as Haji Khuda Bux v. Muhammad Anwar 1982 C L C 1006 and Aftab Ahmad v. Mrs. Haziq and 5 others P L D 1985 Quetta 108. An adjustment was allowed in the above cases to the tenant in respect of house tax paid by him to the concerned department in relation to the property in dispute. It would reduce the law to a farce, if the appellant was evicted from the disputed premises although the respondent had to pay to him a sum of Rs.835.

8. The failure to deposit rent in terms of section 16 of the Sind, Rented Premises Ordinance, 1979, imports an element of negligence and fault which is lacking in this case. The following observations made in Muhammad Siddique v. Abdul Karim and others, reported in 1983 C L C 913, are relevant:‑

"The spirit of law is that if a person has acted wilfully in disobedience to the order of a rent tribunal then he has to be vested with the penalty of striking off the defence but if the element of wilfulness is missing as a result of bona fide belief for which a reasonable or plausible explanation has‑been offered then the element of contumacious or deliberate disobedience of the order will be found to be missing."

9. Having regard to the above factual and legal position, the order dated 30‑4‑1987, passed by learned Rent Controller cannot be sustained and is hereby set aside. The appellant is allowed the adjustment of the amount paid by him as property tax from the period when the respondent became the owner of this property. The case is remanded to Rent Controller for disposal in accordance with law. The appeal is allowed, but the parties are left to bear their own costs.

M. Y. H./Z‑72/K Appeal allowed