MUHAMMAD HUSSAIN BHATTI Versus BEGUM ZARIN AZAM JAN
This Appeal is directed against the order dated 21‑9‑1987 passed by the learned Additional Controller of Rent, Clifton Cantt. in Rent Case No.33 of 1987 striking off the appellant's defence under section 17(9) of the Cantonments Rent Restriction Act, 1963, hereinafter referred to as the Act.
2. The brief facts leading to the filing of the above appeal are that the respondent filed aforesaid rent case for ejectment on the ground of default for the period from December, 1984 till the filing of the rent case, which was fled on 5‑4‑1987 at the rate of Rs.1,200 per month in respect of flat in building No.5‑C, "A" Market: Phase II, Pakistan Defence Officers Housing Authority, Karachi. The above application was resisted, inasmuch as the appellant had filed a written statement in which it was pleaded that he had given various cheques towards the rent. After the filing of the written statement the Rent Controller in terms of Section 17(8) of the Act fixed the case for passing tentative rent order. The parties were directed to file rent account. The respondent filed rent account indicating the arrears for the period commencing from December, 1984 to May, 1987 for 30 months at Rs.1,200 per month amounting to Rs.36,000. The appellant did not file any statement of account. However, the learned Rent Controller referred to the written statement filed by the appellant and passed a tentative order on 24‑5‑1987 ordering the appellant to deposit arrears amounting to Rs.36,000 and current rent on or before 5th of each month till the time the above question is finally settled at the regular hearing. It appears that the appellant had not complied with the above order. Thereupon, the respondent riled an application under section 17(9) of the Act for striking off the defence, which application was allowed by the order under appeal dated 21‑9‑1987. The appellant being aggrieved by the above order has filed the present appeal. The above appeal has been fixed for regular hearing as well as hearing of the stay application.
3. In support of the above appeal, Mr.Shaikh TA.Fareedi, learned counsel for the appellant has urged that Section 27 of the Act enjoins upon the Rent Controller to hold an inquiry before passing any order under section 17, which was not done in the instant case and, therefore, both the orders i.e. the above tentative rent order dated 24‑5‑1987 and the above order dated 21‑9‑1987 for striking off the defence suffer from infirmity and are liable to be set aside. In furtherance of his above submission he has referred to the following cases:
(i) Syed Muhammad Akram Shah v. Ch.Ghulam Nabi P L D 1967 Lah. 957, in which a learned Single Judge of the erstwhile High Court of West Pakistan at Lahore while construing the provisions of Sections 13(6) and 15(4) of the late West Pakistan Urban Rent Restriction Ordinance: 1959, hereinafter referred to as the late Ordinance of 1959, held that there should be a proper determination of a fact which is possible only when proper opportunity has been allowed to produce evidence in proof or disproof of the fact.
(ii) Ashiq Maseeh v. Muhammad Yaqoob P L D 1981 Lah. 656. 1n the above case a learned Single Judge of the Lahore High Court held that before passing an order under section 17, the learned Rent Controller was obliged to hold inquiry in terms of section 27.
(iii) Abdul Majeed represented by legal heirs v. Lutfi Siddiqui and 2 others, 1987 C L C 455 (Karachi), in which a learned Single Judge of this Court held that if original order of Court was nullity in law, all edifice built on such order, would also fall and could not be sustained and that non -speaking and very short order on preliminary issue passed by Rent Controller without reasoning, without application of his mind and without taking into consideration evidence and pleas of parties before him was no order in eyes of law.
Mr.Fareedi has also referred to section 27 of the Act referred to hereinabove in furtherance of his above submission.
On the other hand Mr.J.M.Rahimtoola learned counsel for the respondent has contended that a distinction is to be drawn between a final order under section 17(2) on the question of default and a tentative rent order under f section 17(8) inasmuch as in the former case regular evidence is to be recorded whereas in the latter case only summary inquiry is. to be conducted by the Rent Controller on the basis of the material placed by the parties. He has further submitted that in the present case the learned Rent Controller had passed the tentative rent order on the basis of the material placed by the parties and, therefore, the order was in consonance with law. He has further submitted that since there was non‑compliance of the above tentative rent order, the second order for striking off the defence passed by the learned Rent Controller is in consonance with law. He has referred to the following judgments:
(i) Zia Ullah Shah v. Syed Riaz Ahmed 1981 S C M R 538, in which the Honourable Supreme Court while declining petition for leave observed that under section 13(6) of the late Ordinance of 1959, the Rent Controller is to fix tentative rent on the basis of material produced and tenant is to comply with such order subject to adjustment of amount paid when rent is finally determined on merits of the case, and determination of such effect is possible only when tenant defends ejectment proceedings.
It was also held that the tenant failing to comply with order under section 13(6) is forbidden to contest proceedings and his defence is liable to be struck off.
(ii) Mst.Akhtar Jahan Begum and 4 others v. Muhammad Azam Khan P L,D 1983 S C 1. In the above case the Honourable Supreme Court while dealing with an appeal held that Controller for the purpose of Section 13(6) of the late Ordinance of 1959, was not required to determine quantum or rate of rent finally if same are in dispute but is required to determine such amount approximately, and that consequence of non -compliance of an order under section 13(6) entails striking off defence.
4. In the instant case the appellant had not filed any statement of account at the stage of the settlement of account nor placed any material to indicate primal facie that the arrears of rent claimed by the respondent were not due and payable. In the absence of any such accounts or material filed by the appellant, the learned Rent Controller was...obliged to pass the order of the nature which was passed by him in the present case. Admittedly the appellant had not complied with the above tentative rent order and, therefore, in terms of subsection (9) of Section 17 of the Act the defence was to be struck off.
In my view section 27 of the Act does not change the above legal position. The above section inter alia, provides that no order under section 7, 8, 13, 15, 17 or 19 of the Act shall be made by the Controller except after holding an inquiry.
5. I am inclined to hold that this does not mean that even in a case where tenant does not place any material before the Rent Controller to show that the amount of arrears of claim by a landlord at the stage of passing of the tentative rent order is not correct, the Rent Controller is supposed to record evidence. If no such material is placed, the Rent Controller is bound to accept the statement of account of the landlord in the absence of any glaring discrepancy or l inconsistency not pointed out by the tenant.
I am also inclined to hold that if a tenant does not comply with the tentative rent order and if it is an admitted position, the Rent Controller is not supposed to record evidence or hold inquiry for the purpose of finding out whether factually any arrears of the rent were due and payable when the rent case was filed. It has been pointed out in the above cases,‑cited by Mr.J.M.Rahimtoola learned counsel for the respondent, that a tenant gets the right of defending the case after complying with the tentative rent order. If he does not comply with the tentative rent order, the law provides the consequence inasmuch as the defence of the tenant shall be struck off.
6. The above appeal has no merits and, therefore, it is dismissed, but there will be no order as to costs.
However, I grant four months' time to the appellant on the condition that he deposits arrears of rent uptodate within a period of one month, failing which the ejectment order will be executed.
M.Y.H./M‑498/K Appeal dismissed.