TERRY TOWLLERS (PVT.) LTD. Versus MUHAMMAD YOUNUS SHAH KHAN
1. The present appeal has been filed against the order dated 15‑4‑1993 of IIIrd Senior Civil Judge and Rent Controller, Karachi Central in Rent Case No.162/91. The facts leading to the present appeal are as under:‑
2. The appellant is a tenant of two Godowns bearing Nos. 6 and 7 of Plot No. ST‑13/6, Block 2, Federal ' B' Area, Karachi on a monthly rent of Rs.2,200. A Rent Case bearing No. 162/91 was filed by respondent Muhammad Younus Shah Khan against the appellants on the ground of default in payment of monthly rent of the premises from September, 1990 to January, 1991. It is stated that the respondent Muhammad Younus Shah also filed an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 alongwith the said rent case praying that the appellants be directed to deposit arrears of rent with the Nazir of Court from September, 1990 to January, 1991. The appellant in his written statement specifically stated that he had not committed any default in payment of monthly rent as the appellant was regularly paying monthly rent of the premises to the Income Tax Department as per their direction vide notice dated 28‑10‑1992 under section 92 of Income Tax Ordinance, 1979. It was also mentioned by appellant that the rent had been deposited with Income Tax Department w.e.f. September, 1990 to June, 1992 which came to a total of Rs.48,400. In the meanwhile Income Tax Department returned the cheques for the rent of January to March, 1992 and April to June, 1992 with a note that the Income Tax Department no longer required the respondents to pay the rent to the said department. In view of this situation the appellant sent the rent for six months i.e. from January, 1992 to June. 1992 to the respondent but the respondent refused to accept the rent. Because of refusal of respondent to accept the rent the appellant filed M.R.C No. 451/92 and started to deposit the rent in it. No reply for objections were filed in the Miscellaneous Rent Case by the respondent.
3. The Rent Controller allowed respondent's application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 vide his order dated 23‑11‑1992 and directed the appellant to deposit arrears of rent from September, 1990 to November, 1992 for 27 months at the rate of Rs.2,200 per month amounting to Rs. 59,400 on or before 24‑12‑1992. The Rent Controller further directed that the future rent be deposited at the same rate. The appellant filed an application for review of Order dated 23‑11‑1992 and requested that the Income Tax Department be directed to return the entire rent deposited by the appellant. The appellant continued depositing the rent in M.R.C. No. 451 of 1992 instead of the rent case in which order was passed. The Rent Controller on application of respondent directed that the appellant's defence be struck off and he be evicted from the premises.
4. The learned Advocate for the appellant repeated the facts mentioned above that the appellant was directed to deposit rent with Income Tax Department and not to pay rent to opponent and accordingly the rent for disputed period was being deposited with Income Tax Department when Income Tax Department refused to accept the cheques. The appellant had sent the cheques to respondent but he refused to accept cheques and, therefore, Miscellaneous Rent Case No. 451/92 was filed by appellant. It was beyond means of appellant to collect rent from Income Tax Department. Extension of time was requested but this was not allowed.
5. The learned Advocate for the respondent submitted that no receipt had been produced to show that rent was deposited with Income Tax Department and he referred to page 39 of the R & P and page 5 of memo. of appeal to show that there was contradiction in the statements. The ejectment application is dated 10‑3‑1991 and order of Rent Controllers covers two periods. He further submitted that even the order with regard to deposit of future rent has not been complied with. He relied on decisions reported in 1992 CLC page 2499 and 1994 SCMR page 159. The learned Advocate for respondent further submitted that the letter was received from Income Tax Department in January, 1992 but rent was deposited on 5th July, 1992 amounting to Rs.19,800. The rent order is dated 23‑11‑1992. He submitted that even one day's default cannot be condoned and he relied on decision reported in 1990 SCMR page 557. The order of Rent Controller had been disobeyed and mistake is no excuse for disobeying the order. He referred to decisions reported in 1991 MLD page 1256, PLD 1991 page 370 and 1989 CLC page 1934. He submitted that the appeal be dismissed as the order of Rent Controller has not been complied with.
6. The relevant portion of the order of IIIrd Senior Civil Judge and Rent Controller, Karachi dated 15‑4‑1993 is as under:‑‑
7. "It is an admitted position that a tentative rent order was passed against the opponent as mentioned above. Perusal of the Nazir report dated 1‑3‑1993 and 8‑4‑1993 reveals that no deposit has been made in this rent case. However, the opponent deposited the rent in Miscellaneous Rent Case No. 451/92 on 4‑1‑1993 amounting to Rs.33,000 as such it is clear that opponent has intentionally and deliberately failed to comply with the order of the Court. It also appears that opponent had made two applications dated 21‑12‑1992 and 1‑3‑1993 for enlargement of time for compliance of order dated 23‑11‑1992 and for transferring the rent from M.R.C. No. 451 of 1992 in this rent case to which I have no hesitation to say that both the applications are not maintainable as this Court had no power to enlarge the time or to review its own order. In this respect I rely upon 1989 CLC page 1934 Karachi, PLD 1991 Karachi page 370, 1992 CLC page 2499 Karachi. Consequently in the light of the above discussion I am inclined to strike off the defence of the opponent and direct him to vacate the premises in question within 30 days and hand over its vacant and peaceful possession to the applicant."
8. The order of Rent Controller dated 15‑4‑1993 is based on his previous order dated 23‑11‑1992 and the relevant portion of the said order is as under:‑‑
9. "The opponent is directed to deposit arrears of rent from September, 1990 to November, 1992 for 27 Months at the rate of Rs.2,200 per month amounting to Rs.59,400 on or before 24‑12‑1992. The opponent is further directed to deposit future rent at the same rate commencing from December, 1992 on or before 10th of each succeeding calendar month. The opponent is also directed to withdraw the rent which he deposited before the Income Tax Department and deposit the same in the Court in this case. "
10. The order itself shows that it is admitted that the rent had been deposited with Income Tax Department and which was ordered to be withdrawn. The appellant states that it is beyond his means to get back the deposited rent from the Income Tax Department and it was because of default of respondent that he was compelled to pay the rent to Income Tax Department and because of default of respondent he should not be penalised. A tenant is not expected to pay rent to two different persons but Income Tax Department accepted rent. He has to make payment to the landlord. In this case the landlord had also refused and, therefore, Rent Application bearing No. M.R.C No. 451/91 was filed by him. The future rent is being deposited in this case according to the appellant. The facts have not been considered properly: Assuming that the stand of appellant is correct that he deposited the rent with the Income Tax Department and thereafter, in R.C.A No. 451/92 then he is not defaulter. Before the passing of order dated 23‑11‑1992 the Rent Controller should have determined positively whether there was a deliberate default. The order dated 15‑4‑1993 is based on order dated 23‑11‑1992. The order dated 23‑11‑1992 is not based on proper finding with regard to the fact that the appellant deposited the rent of disputed period with Income Tax Department and thereafter, with the Rent Controller. If there is continuity and the appellant has not defaulted then he should not be penalized as a defaulter. In view of these facts I set aside both the abovementioned orders and remand the case back to the same Rent Controller to give a fresh finding and order on deposit of rent after examining document or witness of Income Tax Department and also of Rent Case No. 451/92 with regard to deposit of past rent and future rent. In case the appellant is a defaulter his defence may be struck off and it is opened for Rent Controller to come any finding on the basis of evidence produced before him. Accordingly the appeal is allowed with no order as to costs. These are the reasons in judgment of short order dated 20‑4‑1995.
11. A.A/T‑8/K Appeal allowed.