MUSHTAQ AHMAD Versus AHMED BUX

Civil Petition No, 402 of 1983 F. R. A. No, 51 of 1983, decided on 15th January, 1984.

Authored by M. S. H. Quraishi. Result: Petition dismissed.

Summary

This petition for leave to appeal arose from ejectment proceedings initiated by the respondent landlord under the Sind Rented Premises Ordinance 1979 on the ground of default in rent payment. The Rent Controller had ordered the petitioner tenant to deposit arrears and future rent under Section 16(1) of the Ordinance. Upon non-compliance, the Controller struck off the tenant's defense and ordered ejectment on merits. The High Court affirmed this decision. Before the Supreme Court, the petitioner contended that his counsel was absent when the deposit order was passed, that arrears covered by previous proceedings were improperly included, and that the Controller lacked territorial jurisdiction. The Supreme Court dismissed the petition, holding that the record clearly noted the presence of the petitioner's counsel, that the period of arrears was not shown to overlap or be time-barred, and that the plea of territorial jurisdiction had not been raised in the lower forums and could not be entertained for the first time.

Questions settled in this judgment

Can a plea regarding the territorial jurisdiction of a Rent Controller be raised for the first time before the Supreme Court if not raised earlier?
Whether the striking off of a tenant's defence under Section 16(1) of the Sind Rented Premises Ordinance 1979 is valid where the order of deposit was passed in the recorded presence of the tenant's counsel?

Laws & provisions referred

Section 16(1), Sind Rented Premises Ordinance 1979

ejectmentstriking off defencedeposit of rentdefault in rentterritorial jurisdictionleave to appealarrears of rent

ORDER

M. S. H. QURAISHI, J.-In an ejectment proceeding instituted on the ground of default in payment of rent, the defence of the petitioner tenant was struck off by the Rent Controller on 14-5- i583, for his failure to comply with an order of deposit of rent. By the same order, the Controller also directed the petitioner's ejectment on merits. His appeal before the High Court having failed on 11-8-1983, he has moved this petition for leave to appeal.

2.A previous ejectment application filed on the ground, inter alia, of default had been dismissed by the Rent Controller mainly for the reason that the landlord had been accepting rents periodically and as such the ejectment sought was not justified. The landlord's appeal before the Additional District Judge had also failed on 23-9-1979. He, thereafter, on 15-6-1980, instituted fresh proceedings again on the ground of default. On his application made under section 16(1) of the Sind Rented Premises Ordinance, 1979, an order of deposit of arrears of and future rents was passed on 9-3-1982. As no deposit was made, the landlord moved an application on 7-6-1982 for striking out the petitioner's defence. The petitioner, however, applied for setting aside the order of deposit of rent on the ground that the same had been passed without affording him an opportunity of hearing but the application was dismissed on 27-6-1982. Ultimately, the landlord's application was allowed and the petitioner's defence was struck off on 14-5-1983, and as in the meantime, the parties had produced their evidence, the Controller by the same order also decided the main application in favour of the landlord and directed the petitioner's ejectment.

3.The contentions raised before the High Court were that (1) the Controller's order was illegal and without jurisdiction as it covered time-barred rent ; (2) the order of deposit of rent had been passed in the absence of the petitioner ; and (3) the Civil Judge had no jurisdiction to entertain a rent application under the Sind Rented Premises Ordinance, 1979. The High Court rejected all the contentions. It held that the order of deposit did not include rent beyond the period of three preceding years; that the proceeding sheet of the Controller of 9-3-1982, on which date the order of deposit had been made, showed the presence of Advocates of both the parties and that the Civil Judge had jurisdiction under the Ordinance.

4.Learned counsel for the petitioner has urged before us that :

(1)the petitioner's Advocate was not present on 9-3-1982, which fact was supported by an affidavit filed later ;

(2)the arrears of rent at least for the period covered by the earlier ejectment proceeding could not be included in the order of deposit ; and

(3)the Rent Controller sitting at Sukkur had no territorial jurisdiction over the matter which pertained to Rohri.

None of the contentions has substance. On the first point, it is clear from the Controller's order dated 27-6 1982 that the presence of the petitioner's counsel had been duly noted in the relevant proceeding-sheet. As regards the question of the period of arrears, overlapping that of the previous proceeding, we find that not only no such question had been specifically raised before the High Court but also that the date on which the earlier ejectment application had been filed, has not been furnished nor has it been shown that the rent for the period covered by the earlier application had actually been included. Even otherwise, as already mentioned the decision on that application had been on the basis of the conduct of the landlord in collecting rents periodically and not upon a finding that rent, had actually been paid. As regards territorial jurisdiction, no such ground having been taken earlier the same cannot be allowed to be raised now.

5.The petition is, therefore, dismissed.