SYRUS A. DINSHAW Versus ASMA
1. The respondent filed an application for ejectment of the appellants on the ground of default in payment of rent. There seems to be some dispute in the rate of rent as according to the appellants it is Rs.4,500. The respondent filed an application under section 16(1) for deposit of rent. The appellants took the plea that they have been depositing rent in Misc. Rent Case filed by them at the rate of Rs. 2,500. The learned Controller passed order under section 16 (1) on 28-2-1988 fixing the rate at Rs.4,500. He further calculated the arrears at Rs.90,000 which were ordered to be deposited on or before 10th April, 1988 subject to adjustment made by the appellants in respect of the amount which they have deposited in Court. The current rent was to be deposited on or before 10 th of March, 1988. It seems that the appellants were unable to deposit the arrears in time. They deposited Rs.61,400 on 5-5-1988 and an application for extension of time was also made but the same was rejected. Consequently order under section 16(2) was passed striking off the -appellant' f i n ejecting them from the premises.
2. Mr. Khawaja Naveed A ma the earned counsel for the appellants has contended that the order passed under section 16(1) was arbitrary and sufficient time was not given to deposit the huge arrears which were ordered by the Controller and further that the rate of rent was also not fixed as required by law. Mr. Shaikh Hamid Hassan the learned counsel for the respondent has contended that default has been made in payment of rent and no valid reasons have been given for extension of time. Be that as it may, in my view the order dated 28-2-1988 passed under section 16(1) of Sind Rented Premises Ordinance was not proper, valid and legal. Therefore, for non-compliance of such an illegal order no penalty can be imposed upon the appellants. Under section 16(1) the Controller is required to determine the arrears and direct the said arrears to be deposited by the tenant. In the present case the Controller came to the conclusion that Rs.90,000 were the arrears but he did not take into consideration the amount already deposited by the appellants in Court and without ascertaining such deposit he left the determination of adjustment to the tenants themselves. As ordered by the Controller the appellants were to calculate adjustment and then the balance which may be found due was to be deposited. This procedure is not warranted by law. It is likely to create controversy and multiplicity of proceedings.
3. The object of section 16(1) inter alia is to at least tentatively determine the controversy regarding arrears of rent or the rate of rent for an interim period. This object cannot be achieved if determination is left to the tenants. Such determination should be made by the Controller who should ascertain the arrears after giving adjustments, if any, and pass a speaking and definite order. I therefore, set aside the impugned order and also the order dated 28-2-1988 and remand the case to the Controller to pass an order under section 16(1) in the light of aforesaid observation. By consent the learned Controller should dispose of the entire matter on or before 31-12-1989.
4. M.Y.H./C-113/K
5. Case remanded.