SHAH BEHRAM BOMAN IRANI Versus Messrs COMMERCE BANK

This appeal is directed against art order dated 6-1-1982, passed by the learned XVIIth Senior Civil Judge/A,I/Rent Controller, Karachi passed in Rent Case No.354 of 19?5 dismissing the present appellant's application for ejectment on the ground of default and casing damage to the demised tenement.

2. The brief facts leading to the filing of the above appeal are that the' appellant had filed the aforesaid rent case on the above two grounds. In the above rent case a tentative order was passed on 1‑2‑1977. After that the learned Rent Controller framed the following six issues;

"(1) What is the agreed rent of the demised premises?

(2) Whether in terms of clause 6 of the registered lease deedatesy 26‑4‑1973 the opponent are liable to pay all such already agreed rate.; ceases or taxes as are imposed and/or increased due to, the improvements, alterations or any one: on their behalf? If so, to what extent?

(3) Whether the opponents have committed default in payment of rent of the demised premises?

(4) What are the arrears of rent?

(5) Whether the opponents have carried out material changes in the structure of the demised premises that are likely to impair materially its value, utility and durability?

(6) What should the order be?"

Alter the recording of the evidence of the parties, the learned Rent Controller recorded his finding that the agreed rent was Rs.8,000 per month plus all other taxes and charges in terms of clause 6 of the lease deed (Ext. A/1). It was also held that in case of any increase in the tax liability the same could not have been demanded without the approval of the Rent Controller. He also recorded a finding that there was no default on the part of the appellant and that the ground of causing damage to the property was also not proved, and dismissed the rent application. The appellant being aggrieves above order has filed the Present appeal.

3. It seems that while the above appeal was pending the appellant had attained the age of 60 years. Thereupon, he filed an application under section 14 of the Sind Rented Premises Ordinance, 1979 and got an ejectment order passed against the above ejectment order the respondent filed a Constitutional Petition in this Court, which was dismissed. Petition for Leave to Appeal was filed by the respondent in the Supreme Court but was not pressed as the respondent had also filed Suit No.47 of 1982 in this Court for declaration that the above ejectment order was obtained by fraud. In the above suit an application under Order XXIII, Rule 1, C.P.C. was filed for the withdrawal of the suit and it was stated that the keys of the premises had been handed over to the Advocate for the present appellant. The suit was dismissed as withdrawn with no order as to costs.

4. The above appeal factually has become infructuous in respect of the relief for ejectment because of the above development. However, Mr. Gharib Nawaz, learned counsel for the appellant has submitted that this appeal is still alive as the question of respondent's liability to pay the amount of tax should have been determined by the Rent Controller. It has been submitted by him that the factum that the appellant obtained the possession of the premises does not render the Rent Controller functus officio but he has to determine the question of liability. In furtherance of his above submission he has referred to the following cases;

(i) Ashfaq‑ur‑Rehman v: Ch. Muhammad Afzal (P L D 1968 S C 230)

(ii) Syed Akhlaque Hussain v. Habib Ismail Bajwa. Advocate (1974 S C M R 504)

(iii) Province of the Punjab through Collector Sheikhupura v. Anjuman Talim‑ul‑Islam and others (P L D 1987 S C 123).

5. The ratio of the above cases seems to be that if a Rent Controller has passed a tentative rent order, he is obliged to decide the question as to the rate of rent and as to the period of the arrears finally even if the ejectment order is passed or executed. There seems to be no cavil with the proposition propounded in the above cited cases. If there was a dispute as to the rate of rent or as to the period of the arrears of rent and the Rent Controller had passed a tentative rent order for depositing of rent, he is bound to determine the above question finally in order to dispose of the amount deposited in his Court in pursuance of the tentative rent order. In the present case according to the appellant the learned Rent Controller has already determined the question of rate of rent and also the question of liability as to the taxes in terms of clause 6 of the lease deed, if that is so, there is nothing left which is to be determined by the Rent Controller. However, Mr. Gharib Nawaz learned counsel for the appellant has submitted that the Rent Controller should have calculated the amount of tax, which according to him comes to over Rs.3,00,000 and should have directed the respondent to deposit the amount so determined. In other words, the appellant wishes to convert the rent case into a proceedings for the recovery of the amount after obtaining the possession of the premises.

6. In my view, the above contention is devoid of any force. I may explain by giving an example. Suppose in a particular case there is no dispute as to the rate of rent or the period of arrears of rent and the Rent Controller passes an order for depositing of the arrears of rent, the tenant commits default of the said tentative rent order. The consequence provided under the law is that the tenant's defence is to be struck off and he is to be directed to put the landlord into possession. In such a case, after obtaining the possession the landlord cannot file an application that the tentative rent order should be converted into a money decree and be executed as such. The rent proceedings under the Rent Restriction Ordinance are not designed for the purpose of affecting the recoveries of the dues but the main object seems to be to facilitate a landlord to obtain the possession on various grounds contained therein. In my view,. the above appeal has become infructuous as admittedly the appellant had obtained possession of the premises on 2‑12‑1984 and the Rent Controller according to the appellant's own showing has determined the question of rate of rent as well as the question of liability of taxes, there is no amount lying deposited with the Rent Controller in the above rent case, which needs to be deal; with or to be disposed of.

7. The appeal is dismissed as having become infructuous with an order as to costs.

M.Y.H./S‑196/K Appeal dismissed.