RAUJEE Versus ABDUL RAZZAK KHATRI

1. Appellant Raujee has called in question his eviction ordered on 1‑11‑1992 in Rent Case No. 957/1991 by VIII Senior Civil Judge and Rent Controller Karachi South, from the premises in litigation.

2. Said rent case was filed by respondent Abdul Razzak for eviction of the appellant from the premises in litigation viz. one room at ground floor of a building known as "Zainab Heights" at Atma Ram Pretam Das Road Mossa Lane, Karachi.

3. Admittedly the appellant is tenant of the respondent in the room in litigation, on monthly rent of Rs.60 p.m. The only ground taken in said rent application for eviction of the appellant was that he had defaulted in payment of rent from the month of January 1991.

4. The rent application was contested by the appellant, who in his written statement denied being defaulter. His case was that he had paid rent up to July 1991 besides having paid Rs.420 as advance rent for January 1991 to July 1991. Appellant contended that no rent receipt was issued for the rent paid for January 1991 to July 1991 and that the rent case was filed mala fidely. It was added that the respondent refused to receive rent for the month of August 1991 and the same was sent through money order which was also refused and that the rent was being deposited in Court.

5. On 7‑9‑1991 Advocates for the parties were present when counsel for the respondent moved an application under section 16(1) of Sindh Rented Premises Ordinance (hereafter to be mentioned as the Ordinance) for passing an order for deposit of future monthly rent and arrears of rent. Copy of such application was given to learned counsel for the appellant and the matter was adjourned to 23‑9‑1991. On 23‑9‑1991 neither the appellant was present nor his counsel. Advocate for the respondent was present and in his presence Rent Controller passed order by which the appellant was called upon to deposit arrears of rent for the months of January 1991 to August 1991 amounting to Rs.480 within 10 days and to deposit future monthly rent at the rate of Rs.60 per month for each month commencing from September 1991 by 10th of the next following month till disposal of the case.

6. On 20‑11‑1991 an application under section 16(2) of the Ordinance was moved on behalf of the respondent to the effect that the appellant had defaulted in depositing the rent in terms of the rent order dated 23‑9‑1991. Copy of said application was supplied to counsel for the appellant for hearing. After hearing counsel for the parties, learned Rent Controller passed the impugned order dated 1‑11‑1992 by which defence of the appellant was struck off and he was directed to be ejected from the premises in litigation. Hence this appeal.

7. Mr. Salim Karamally, learned counsel for the appellant argued that on 7‑9‑1991 he wad given copy of an application under section 16(1) of the Ordinance but he was not called upon to file objections. Such an argument is preposterous. When copy of such application was given to learned counsel for the appellant, the next date of hearing of application was fixed to be 23‑9‑1991. In case learned counsel wanted to file the objections, he should have done so on 23‑9‑1991 or on an earlier date. Learned counsel for the appellant gave the excuse for being absent on 23‑9‑1991. In' case he was unable to attend the Court, the appellant should have attended the Court and made request for adjournment. It was further argued that the appellant did not know about the rent order dated 23‑9‑1991 otherwise he would not have filed M.R.C. No.1544/1991 on 25‑9‑1991 and would have deposited the rent in said case. On this point learned counsel argued that at the most it can be said that there was technical default but there was no default in terms of subsection (2) of section 16 of the Ordinance. Learned counsel relying on case‑law further argued that default invites penal clause only when it is deliberate and that an order passed without hearing counsel for a party was nullity in law. It was also argued that the cases cited in the impugned order were distinguishable. In support learned counsel for the appellant cited the cases of:‑‑

(i) Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970)

(ii) Khalid Parvez v. Muhammad Hanif Kiani (1991 MLD 2711)

(iii) Mst. Rashid Jehan v. Muhammad Ashfaq (1991 MLD 2619)

(iv) Noor Muhammad and another v. Mehdi (PLD 1991 SC 711)

(v) Maqsood Ahmed Khawaja and another v. Asmat Begum (1985 CLC 1945)

(vi) Barkat Ali v. Noor Hussain Alwani (1985 CLC 2445)

(vii) Mat. Mukhtar Begum v. Dildar Ahmed (1994 CLC 1210)

(viii) Syed Khadim Hussain Abedi v. Mat. Geti Ara Begum (1954 CLC 68)

(ix) Abdul Hafeez v. Mat. Zubeda Khatoon (1992 CLC 471)

8. Mr. Aftab A. Khan, learned counsel for the respondent argued that the appellant had not challenged the rent deposit order dated 23‑9‑1991 and hence violation of said order attracted the penal provisions. It was next argued that although monthly rent was deposited in M.R.C. No. 1544/1991 but arrears of rent were not deposited and it was clear violation of the order dated 23‑9‑1991. Learned counsel for the respondent conceded that the principles of natural justice would be violated if an order is passed without hearing a party, but contended that it was within knowledge of learned counsel for the appellant that the application moved under section 16(1) of the Ordinance was fixed for hearing on 23‑9‑1991 and that as a senior lawyer he was supposed to know that when an application was fixed for hearing, the objections to the same could be filed, without being called upon to do so. In support learned counsel cited the case of Ghulam Hussain v. Mst. Roshan Bibi (1986 SCMR 1714) where it was held that when the tenant failed to comply with direction of the Rent Controller regarding deposit of rent and did not deposit the rents in account of the ejectment application and was found negligent in prosecuting his defence, his defence was rightly struck off by the Rent Controller.

9. It is matter of record that M.R.C. No. 1544/1991 was filed in the same Court by the appellant. In said case the appellant deposited Rs.120 on 29‑9‑1991, Rs.60 p.m. on each of the following dates: 6‑10‑1991, 6‑11‑1991, 8‑12‑1991, 5‑1‑1992, and Rs.360 on 8‑1‑1992. It may be mentioned here that payment of rent for the period January 1991 to July 1991 was disputed inasmuch as the appellant claimed to have paid the same while the respondent denied to have been paid the same. The order dated 23‑9‑1991 was ex parte order, as it was passed at back of the appellant, for which the appellant can be blamed as he and his Advocate chose to remain absent. Under said order dated 23‑9‑1991 the Rent Controller has not made "such summary inquiry as deemed fit" in terms of subsection (1) of section 16 of the Ordinance, except his observation that rent receipts were not produced for the disputed period. The appellant was however supposed to deposit in the rent case the arrears of rent with effect from August 1991 as in the M.R. Case No. 1544 of 1991 filed on 25‑9‑1991, the appellant had deposited Rs.120 on 29‑9‑1991 and thereafter he deposited monthly rent for each month and on 8‑1‑1992 he deposited Rs.360 presumably because under order dated 23‑9‑1991 he was to deposit arrears of rent amounting to Rs.480. The deposits by the appellant made on 29‑9‑1991 and on 8‑1‑1992 would total Rs.480. In this way in substance the due rent has been deposited but technically the rent order dated 23‑9‑1991 has not been complied with.

10. Similar point arose in the case of Abdullah Ghanghro and another v. Mst. Tahira Begum and another (1988 SCMR 970) where rent order was passed do 20‑4‑1982 but the tenants were regularly, depositing rent in Court in miscellaneous proceedings between the same parties and not in the specific case numbers in which the rent deposit order was passed. In these circumstances it was held that since the tenants were depositing the rent regularly in Court, their only mistake of continuing to deposit rent in the connected miscellaneous proceedings between the parties and not under the numbers of the particular cases in which the rent deposit order was passed, they (tenants) cannot be condemned as guilty of not depositing rent in Court, because non‑compliance of the order of the Rent Controller about deposit of rent, was just a technical one, rather than real. In the case of Khalid Parvez (1991 MLD 271) the view taken was that even if the tenant was technically defaulter in payment of rent for a certain month, no order of ejectment should have been passed against him and the discretion should have been exercised in his favour. In taking such view a learned Judge of Lahore High Court followed the cases of Chaudhry Muhammad Ali v. Mian Abdul Rahman (PLD 1989 SC 123), Muhammad Hussain v. Muhammad Siddique and others (PLD 1988 SC 731) and Muhammad Yousaf v. Abdullah (PLD 1980 SC 298). In the case of Mst. Rashid Jehan (1991 MLD 2619) the view taken was that default of a technical nature can only be termed as an irregularity and penal action under section 16(2) of the Ordinance cannot be visited on the tenant, as a consequence of such irregularity. While taking such view reliance was placed on the cases of Abdullah Ghangro v. Mst. Tahira Begum (1988 SCMR 970) and Major (Retd.) A.S.A. Samad v. Lt.‑Colonel (Retd.) A. Hussain (1987 SCMR 1013). In the case of Noor Muhammad and another (PLD 1991 SC 711) the tenant had deposited the rent within time in the previous proceedings between the same parties, and not in the fresh matter and it was held that there was no deliberate or contumacious disregard of the order of the Controller, as the default, if any, was purely technical in nature, because the tenant had deposited the rent within time, in the previous proceedings between the same parties in which he was depositing the rent earlier. In the case of Maqsood Ahmad Khawaja and another (1985 CLC 1945) the view taken was that non‑compliance of the direction of Rent Controller which would result in striking off defence of a tenant, must be deliberate. In the case of Barkat Ali (1985 CLC 2445) the view taken was that where the tenant has not been negligent and careless in compliance with an order under section 16(1) of the Ordinance, he should not suffer due to the act done by his Advocate. In the case of Mst. Mukhtar Begum (1994 CLC 1210) the view taken by me was that if the rent order was not legal and valid, its non‑compliance was not fatal. This authority in my view, does not apply to the instant case. In the case of Syed Khadim Hussain Abedi (1984 CLC 68) the evidence had fully been recorded except cross‑examination of the tenant, when order under section 16(1) of the Ordinance was being passed and the view taken was that the Rent Controller before passing order under section 16(1) of the Ordinance, was required to consider not only the objections but also the evidence on record. In the instant case, the rent order was passed on 23‑9‑19Y1 when respondent's affidavit alone was on record and no affidavit was filed by the appellant. Hence case of Khadim Hussain Abedi does not covei this case. In the case of Abdul Hafeez (1992 CLC 471) the rent order was passed on a date which was fixed for consideration of the application under section 16(1) of the Ordinance and the same was passed without hearing the tenant and his counsel and the same was set aside being violative of the principle of natural justice. In the present case the rent order was passed on a date, which was fixed for hearing of the application moved under section 16(1) of the Ordinance on 7‑9‑1991.

11. The case‑law discussed above shows that eviction cannot be ordered under section 16(2) of the Ordinance when the default is only technical in nature. In the present case the appellant has deposited in Court in MRC No. 1544/91 virtually the entire rent that he was required to deposit under the rent order dated 23‑9‑1991. His only misfortune was that he and his counsel 1A were not present in the trial Court on 23‑9‑1991 when the rent order was passed. There is force in the contention that had the appellant knowledge that the rent order dated 23‑9‑1991 was passed against him, requiring him to deposit arrears of rent and monthly rent in Court, he would not have moved on 25‑9‑1991 M.R.C. No. 1544/91 for deposit of rent in Court.

12. As result of aforesaid discussion, the impugned order is set aside and the matter is. remanded to the trial Court for disposing of the rent application according to law. However the Rent Controller is not debarred from passing any fresh order under section 16(2) of the Ordinance if the appellant is guilty of non‑compliance of rent order dated 23‑9‑199.1.

13. H.B.T./R‑264/K ?????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.