MUHAMMAD ILYAS Versus Hafiz ABDUL MALIK
1. The respondent purchased the property bearing No.A.M. 4/2 Custodian .,rNo.111‑B‑6/4/2 situated on the Burns Road, Karachi. The appellant is a statutory tenant and therefore, a notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 was served on 6‑7‑1966 and rent Rs.30 was demanded as according to the respondent it was latest assessment fixed by the K.M.C. in 1966. The assessment was reduced to Rs.27 by the Excise and Taxation Department. On revision filed by the appellant it was again reduced to Rs.12 by the Additional Commissioner Karachi on 23‑5‑1967. The respondent tiled Rent Case No.1018 of 1966 against the appellant on the basis of the assessment of Rs.12 per month. The learned Controller passed a tentative order for deposit of rent at the rate of Rs.12 per month. The premises was re‑assessed by the Assessing Authority at Rs.15. On 22‑2‑1968 on revision filed by the respondent the rent was enhanced to Rs.30 per month by a final order of the Additional Commissioner dated 7‑4‑1969. The respondent filed Suit No.751/69 for declaration that the rent fixed by the Additional Commissioner at Rs.30 was illegal but it was dismissed on 29‑5‑1978. The appeal filed was also dismissed. The Rent Case No.1018 of 1966 was dismissed for default on 20th December, 1.81. The appellant failed to pay rent at the rate of Rs.30 per month from 21‑12‑1981 therefore, ejectment application was filed by the respondent. In the application it was alleged that the appellant had failed to pay rent according to the latest assessment from 7‑4‑1969 and in any case from 20‑12‑1980. However, for the purposes of ejectment case the learned counsel has restricted his claim for default from 20‑12‑1981 to 22‑12‑1984 when ejectment application was filed. The appellant filed written statement denying that he is a defaulter. It was alleged that assessment of Rs.30 by the Taxation Authority was neither a fair rent nor it was agreed between the parties. It was alleged that the appellant was not aware of the dismissal of the rent case and he deposited rent in Court at the rate of Rs.12 per month and no exception can be taken to it. It was denied that any wilful default has been committed. The learned Controller by the impugned order held that the default has been committed and granted the ejectment application.
2. Mr. Burhani the learned counsel for the appellant has contended that the appellant had deposited the rent at the rate of Rs.12 per month as ordered by the‑, Rent Controller in Rent Case No.1018 of 1966 and therefore, that if at all there was a default it was a technical one and appellant cannot be penalized for that. The learned counsel for the appellant relied on Major (Retd.) A.S.K. Samad v. Lt.‑Col.(Rtd.) A.Hussain and another 1987 S C M R 1013. In this case the appellant started depositing rent in Court after obtaining permission of the Rent Controller in Miscellaneous Case. Thereafter, respondents filed ejectment case against the appellant and during the pendency of these proceedings Rent Controller directed the appellant to deposit rent from September, 1978 onwards in Court. The appellant continued to deposit rent in Miscellaneous Rent Case instead of ejectment case filed by the respondent. On an application under section 16(2) of the Sind Rented Premises Ordinance the Controller held that the appellant had defaulted in depositing the rent and directed his eviction. An Appeal filed against this order was dismissed. The tenant filed appeal in the Supreme Court where it was observed:‑
3. 'It is obvious that the appellant continued to deposit rent in Court, according to his earlier practice, in Miscellaneous Rent Case No.953 of 1976 and for the only fault committed by him in depositing rent in that' case, rather than in the case concerned, namely, Ejectment Application No.1823 of 1977 he cannot be condemned for having been guilty of disobedience of the order of the Rent Controller dated 20‑9‑1978 so as to entitle penalty of his eviction from the demised premises.'
4. Mr.R.H.Faruqui the learned counsel for the respondent pointed out that Rent Case No.1018 of 1966 was dismissed in December, 1981, therefore, any payment in that case in terms of the tentative order passed therein was not legal and proper. The appellant's plea is that he was not aware of the dismissal. I am, not inclined to believe that the appellant was not aware of the dismissal of ejectment case for many years. Usually the tenant is vigilant about the ejectment case and keeps track of its progress. In the case relied upon by the appellant the payment was made in a pending Miscellaneous Rent Case in terms of the order passed in the ejectment case. In the present Case No.1018 of 1966 had been dismissed. The tentative order was not in existence. The rent had been revised by the Excise and Taxation Authorities in the presence and to the knowledge of the appellant but he chose to deposit only Rs.12 the rent which was ordered to be deposited in terms of the tentative order passed in case No.1018 of 1966. This will) not amount to a technical default.
5. The learned counsel for the appellant relying on Syed Akhlaque Hussain v. Habib Ismail Bajwa 1974 S C M R 504 contended that although the ejectment application had been dismissed the Rent Controller should have finally determined the rent and therefore, the proceedings in Case No.1018 of 1986 did not terminate and there was no default as the rent was deposited in a valid and a pending proceeding. The learned counsel also relied on P L D 1969 S C 424. The contention raised by the appellant's counsel that the Ejectment Case No.1.018 of 1966 after dismissal remained alive for the purpose of depositing the rent under interlocutory order is completely misconceived. The two authorities of the Supreme Court cited by the learned counsel for the appellant do not support his contention. In the first case after the observation that the proceeding does not conclude until the rent is finally determined, it was observed that:‑
6. "A close scrutiny of the above provisions clearly indicates that an order passed under section 13(6) of the Ordinance remains effective only up to the time of the final determination of the proceedings before the Controller.
7. It will be seen that under the first part of subsection (6) of section 13, the Rent Controller while directing deposit of arrears and the monthly rent fixes the amounts in regard to both tentatively if there is a dispute. Under the second part which may either be at the stage when the default is committed and the question of striking off the defence arises or when the proceedings are disposed of he is finally to determine the amount of rent due. In doing so he not only determines the period for which rent is due but also the rate at which the rent is payable. He is then to direct that the amount so determined be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. it is, therefore, evident that the order passed under the first part merges in the order passed under the second part. In this view it cannot be said that the former remains effective even after the latter order is passed.
8. Subsection (8) provides that at the conclusion of the proceedings or at such earlier date as may be specified by the Controller, the rent deposited by the tenant shall subject to the final determination of rent as payable by the tenant be paid to the landlord. I am unable to see how in view of the above provisions it can be argued that an order passed under section 13(6) remains operative even if the ejectment proceedings started by the landlord are dismissed after final hearing by the Rent Controller.'
9. In the present case the ejectment application had been dismissed and no order of ejectment had been passed.
10. In the second case the Supreme Court had clearly observed that the order contemplated by the first part of section 13(6) of West Pakistan Urban Rent Restriction Ordinance is of an interlocutory nature and cannot be said to remain effective after the final determination of the proceeding in which it is made.
11. The tentative order passed by the Controller for deposit of rent is in the nature of an interlocutory order which merges with the final order. If before a final order is passed or rent is finally determined, the ejectment application is dismissed on merits or in default, the proceeding terminates and the tentative order for deposit of rent does not continue thereafter. In view of this discussion the appeal is dismissed. The appellant is allowed four months time to hand over vacant possession of the disputed premises to the respondent.
12. H.B.T./M‑419/K Appeal dismissed.