AYOUB MUHAMMAD KHAN Versus SHAMA KHALID
This first rent appeal is directed against the order dated 21‑2‑1991 passed by the IInd Senior Civil Judge, Karachi, Central, whereby the defence of the appellant was struck off and directing him to hand over possession within thirty days of the orders.
2. The facts leading to the filing of the above appeal are that the respondent is owner ‑and landlady of property bearing House No. L‑834, Sector 11‑E, North Karachi and the appellant is tenant in respect of the said property at the monthly rent of Rs.375. The respondent filed eviction application on the grounds of personal requirement and the appellant failed/refused/neglected wilfully to pay the due monthly rent for the period from January, 1985 up to May, 1989. amounting to Rs.15,375. The appellant contested the eviction application. The respondent filed application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, (hereinafter referred to as "the Ordinance"), stating therein that arrears of rent amounting to Rs.17,625 are due and the appellant be directed to deposit the same and also to deposit future monthly rent. The appellant resisted the application. The appellant denied arrears of rent and, submitted that he paid the rent to the respondent for the months of February and March 1986 vide receipts 'A' and `B'. He submitted that the respondent received a sum of Rs.6,375 up to December, 1986 vide receipt `C'
3. It was contended before the Controller that the appellant paid rent to the respondent by way of different receipts. It was further contended that "if opponent had not paid rent to the applicant since January 1986 why this case was not instituted in the year 1986, or 1987 or 1988. This case has been filed in the month of May, 1989, this shows that the appellant has received rent and his claim is false regarding arrears and is concocted story."
4. The Controller allowed the application vide order dated 21‑3‑1990. while allowing the application he observed as follows:‑‑
"After considering the arguments and receipts produced by the opponent the matter requires consideration and this question also requires consideration that if opponent was in arrears from January 1986 why the case on the ground of default was not filed in the year 1986 or 1987 or 1988. In these circumstances I find it proper order the opponent to deposit the rent in this case w.e.f. March, 1989 at the rate of Rs.375 on or before 10th of April, 1990 so also future rent on or before 10th of every succeeding month. V ith ..these direction application stands disposed of."
5. The appellant deposited future rent in compliance with the above order. He observed that the appellant has not deposited the amount of arrears w.e.f. March, 1989 as per tentative order as such he committed wilful default. The defence of the appellant was struck off as stated in the earlier part of this judgment. The appellant has challenged the impugned order in the present appeal.
6. I have heard Mr. Khalid Farooqui, learned counsel appearing for the appellant and Mr. Kamaluddin learned counsel appearing for the respondent. I have perused the impugned orders.
7. In order to appreciate the contentions of‑ the learned counsel for the parties, it is necessary to reproduce section 16(1) of the Ordinance which reads:‑
"16. Arrears of rent.‑‑(I) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case."
8. A plain reading of the above provisions shows that the Controller has to pass order under the above section after such summary inquiry and after determining the arrears of rent due. Determination of the rent due would contemplate that the Controller should have considered the material placed before him by both the parties and having weighed and taken into account the same he should have determined the specific amount due for which such direction could have been passed.
9. In Syed Ahsan Ali v. Jaffar Ali and 4 others, PLD 1964 (W.P) Karachi 418 a Division Bench observed that if the order in respect of arrears and future rent are not passed in conformity with the provisions of law tenant could not be held liable to eviction for not complying with such defective order.
10. In Khair Muhammad Nizamani v. Abdul Quddus, PLD 1965 (W.P) Karachi 367 it was held that the provisions, being penal in nature, had to be strictly construed and if the order as to deposit of arrears or future rent did not, strictly, conform with law, the defaulting tenant could not be evicted for non‑compliance of a defective order.
11. In Muhammad Aslam v. Muhammad Umar and another, PLD 1982 Karachi 107, Mr. Saleem Akhtar, J. (now Judge Supreme Court) has observed that:
'The‑ provisions of subsection (6) of section 13 of Urban Rent Restriction Ordinance, 1959 are penal in a nature. Non‑compliance of the order passed under section 13(6) entails penalty by way of summary ejectment. In these circumstances it is well‑settled that the order passed under this provision should be in strict compliance with the provisions of section 13(6). Any deviation or departure from the provision of section 13(6) will disentitle the landlord from seeking ejectment for its non‑compliance. No penalty can be imposed on a person for non‑compliance of an order which has not been passed in accordance with the provision of law."
12. In United Bank Ltd. v. Aijaz Amin, 1983 CLC 530, it was observed that:
"The tentative rent order reproduced earlier above has left the amount of arrears to be determined after verification of the amount that may have been deposited in his account‑by the appellant. Although there are indications as to verification of account and then arriving at the correct amount it can hardly be considered as approximate determination of the same as envisaged in the provision of law referred to above:"
13. In Nasir Kamal Pasha v. Muhammad Ismail Khan, PLD 1983 Karachi 192, a learned Single Judge has observed that discretion of Controller to pass tentative rent order is a judicial discretion which must be exercised in accordance with all material facts on record after holding summary inquiry and the Controller cannot ignore documentary evidence brought to his notice without coming to conclusion that same was prima facie false.
14. In Ali Jan v. Shujauddin, PLD 1985 Karachi 698, a Division Bench of this Court observed that it is the consistent view of this Court that a Controller while passing order under the provisions of section 13(6) of Repealed Ordinance or section 16(1) of the Ordinance, must strictly comply with the provisions therefor, the non‑compliance of the order results in eviction of the tenant from the rented premises and, if an order passed is not strictly in accordance with the provisions of section 13(6) or section 16(l) of the Ordinance, such an order would be illegal and non‑compliance thereof would not entail the consequences of eviction of the tenant from the rented premises.
15. The principle laid down in the above decisions was followed in the cases of Habib Bank Ltd. v. Noor Ahmad, 1990 CLC 1170 and Tahir Hussain v. Saeed Ahmad Khan Lodhi,1993 CLC 519.
16. In the present case the appellant had produced photostat copies of three receipts issued by the respondent and as such mere denial of the attorney of the respondent that the said receipts were not issued by the respondent or the signature of the respondent was forged, was not sufficient to ignore the receipts completely, without affording opportunity to the appellant. The observation of the Controller that the matter requires consideration and this question also requires consideration that if opponent was in arrears from January 1986 why the case, on the ground of default was not filed in the year 1986 or 1987 or 1988. The order of the Controller dated 21‑3‑1989 on the face of it is a vague and uncertain order.
17. For the aforesaid discussion, the order of the Controller passed on 21‑3‑1990 is a vague order and is accordingly set aside. Since the order dated 21‑3‑1990 is set aside the basis of earlier tentative order would also be rendered in effective and is hereby set aside. I will, therefore, remand the rent case to the IInd Senior Civil Judge/Rent Controller, Karachi Central, with the directions to pass fresh order under section 16(1) of the Ordinance, in view ' of the observations made above. The parties through their counsel are directed to appear before the Controller on 11‑12‑1993 and the Controller shall pass the order under section 16(1) of the Ordinance within one week thereof Le 18‑12‑1993. Since the matter pertains to the year 1989, it is directed that the. Controller will proceed expeditiously and dispose of the same within a period of three months from 18‑12‑1993. The appeal stands disposed of in the above terms with no order as to costs.
H.B.T/A‑1459/L Order accordingly.