ASAD BROTHERS Versus IBADAT YAR KHAN
This petition arises out of an eviction application filed by the respondent-landlord against the petitioner-tenant on the ground of default in payment of water, conservancy charges, and Betterment Tax. The Rent Controller directed the petitioner to deposit arrears and future monthly payments of water charges and Betterment Tax under section 16(1) of the Sind Rented Premises Ordinance, 1979. Upon a minor delay and partial non-compliance, the Rent Controller struck off the petitioner's defence and ordered eviction, a decision affirmed by the High Court. The Supreme Court granted leave to appeal, holding that substantial legal questions were raised regarding the legality and justification of the Rent Controller's order under section 16(1), the propriety of ordering future monthly deposits without prayer, and whether the defence could be struck off without affording an opportunity to show that non-compliance was not wilful or that the underlying order was unsustainable. The appeal was admitted for regular hearing with a stay of eviction conditional upon continued deposits.
- Whether an order made by a Rent Controller under section 16(1) of the Sind Rented Premises Ordinance for the deposit of water charges and Betterment Tax, including future monthly deposits, is in accordance with the law when such charges are otherwise payable annually?
- Whether the Rent Controller was justified in ordering future monthly deposits of water charges and Betterment Tax when no such prayer was made by the landlord in his application?
- Whether it was open to the Rent Controller to strike off the tenant's defence without giving an opportunity to establish that the deposit order was illegal and unjustified or that the failure to comply was not wilful?
- Whether the High Court erred in holding that a tenant cannot urge that a deposit order under section 16(1) was on merits unjustified until the final adjudication of the rent application?
- Section 16(1), Sind Rented Premises Ordinance 1979
- Section 151, Code of Civil Procedure 1908
- Section 5, Limitation Act 1908
ORDER
1. ABDUL KADIR SHAIKH, J. ‑‑The petition arises out of application for petitioner's eviction filed by respondent‑landlord in January, 1981, on the ground that petitioner was a defaulter in payment of water and conservancy charges from 1975‑1976 onwards in the total sum of Rs.4,870 and a share of Betterment Tax payable by petitioner for the period of 8 years to the extent of Rs.3,216 in respect of shop premises let out to petitioner at the rate of Rs.700 per month.
2. In defence, petitioner raised several legal pleas, including one of limitation, in the written statement, and on merits asserted that water charges were not payable, these being a part of rent which was paid regularly. As regards the Betterment Tax, petitioner took the plea that it is, in fact, the liability of the landlord, and not that of the tenant.
3. During the proceedings of the case, the Rent Controller on an application by respondent under section 16(1) of the Sind Rented Premises Ordinance passed the order, dated 30‑7‑1984, directing petitioner to deposit, within 90 days, Rs.5,844 as water charges for 6 years from 1978‑1979 to 1983‑1984 at Rs.974 per annum, and Rs.2,412 as Betterment Tax for the same period at Rs.402 per annum. In addition, the Rent Controller directed the petitioner to deposit water charges at Rs.81.02 per month and Betterment Tax at Rs.34 per month as future liability, before 10th of each succeeding month.
4. On 27th May, 1986, respondent applied for petitioner's eviction on the ground that petitioner had failed to comply with the order of the Rent Controller dated 30‑7‑1984, and on the report of the Nazir, it was noticed that petitioner had deposited Rs.115 on 15‑8‑1984, instead of on 10‑8‑1984, and Rs.230 on 5‑9‑1984. Petitioner had, however, filed an application for the condonation of the delay in depositing Rs.115 late by five days, in that, the order, dated 30‑7‑1984 was not announced upto 2‑30 p.m., and on the following day it was learnt that petitioner was to deposit the arrears of the amount claimed within 90 days, and accordingly petitioner's counsel applied for grant of certified copy of the order which he obtained on 13‑8‑1984, and it was only on that day that it was learnt that the order, dated 30‑7‑1984 contained a direction for deposit of certain amounts as future liability. In this behalf, it was also pleaded that the order of the Rent Controller, dated 30‑7‑1984 was not legible and petitioner's counsel could not read it properly, earlier, until typed certified copy was made available. Petitioner, therefore, made the application for the condonation of the delay and deposited the amount of Rs.115 on 15‑8‑1984.
5. Learned Rent Controller, however, rejected this plea and by the order, dated 28‑8‑1986 struck of petitioner's defence and directed his eviction from the demised premises.
6. Petitioner's appeal against this order was dismissed by the High Court by the judgment, dated 26‑2‑1987, and it is on these facts and circumstances that he filed this petition in this Court for leave to appeal.
7. Mr. Fakhruddin G. Ebrahim learned counsel for the petitioner raised several pleas in support of the petition and these are as under:‑
8. "(i) Whether the order, dated 30‑7‑1984, made by the learned Rent Controller under section 16(1) of the Sind Rented Premises Ordinance, 1979 for the deposit of water charges and Betterment Tax w.e.f. 1978‑79 to 1983‑84 and future monthly deposit of water charges and/or Betterment Tax, which even otherwise are payable annually and at the end of the year, was in accordance with the law?
(ii) Whether the learned Rent Controller was justified in ordering the future monthly deposit of water charges and Betterment Tax when there was no such prayer made by the respondent in his application under section 16(1) of the Sind Rented Premises Ordinance, 1979?
(iii) Whether there was any agreement between the parties for payment of water charges and Betterment Tax much less an agreement to pay Rs. 81.02 per month towards Betterment Tax as rent or otherwise?
(iv) What is the effect of the failure of respondent to seek deposit of water charges and Betterment Tax alongwith monthly rent in the earlier Rent Application No.462/72 made under the Sind Urban Rent Restriction Ordinance, 1959?
(v) Whether it was open to the Rent Controller to strike off defence without giving the petitioner an opportunity to establish that the order, dated 30‑7‑1984, made under section 16(1) of the Sind Rented Premises Ordinance, 1979 was itself illegal and unjustified and without affording to the petitioner an opportunity of demonstrating that the failure to comply with the order dated 30‑7‑1984 was not wilful?
(vi) Whether the learned Single Judge in the High Court was in error in holding that it was not open to the petitioner to urge that the order, dated 30‑7‑1984, was on merits unjustified and unsustainable in law and that such a plea could only be raised and determined upon final adjudication of the Rent Application?
(vii) Whether the impugned order has been without proper application of mind?
(viii) Whether in the facts and circumstances of the case the petitioner had defaulted in complying with the order dated 30-7-1984 and the Rent Controller was justified in striking off the defence of the petitioner, and the learned Single Judge in the High Court was right in affirming the same?
(ix) Whether the Rent Controller was justified in dismissing the following applications filed by the petitioner:
(1) Under section 151, C.P.C. dated 28‑5‑1984.
(2) Under section 151, C.P.C. dated 28‑5‑1984.
(3) Under section 151, C.P.C. dated 28‑5‑1984.
(4) Under section 5 of the Limitation Act, 1908 dated 15‑8‑1984.
(5) Under section 151, C.P.C. dated 10‑5‑1986?
9. There appears to be substance in points raised, we, therefore, grant leave to appeal and allow the petition. Security Rs.2,500.
10. Appeal to be heard on the present record at an early date. It is however open to the parties to file additional documents, if any.
11. Petitioner shall not be evicted from the demised premises till the appeal is decided, provided the petitioner continues to deposit the amount in Court payable in terms of the order of the Rent Controller, dated 30‑7‑1984.
12. S.Q./A‑175/S ????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.