Order Sheet

 

IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD

 

First Rent Appeal No. 02 of 2019

 

Appellant                   :  Ahmed Khan,

    through Mr. Arbab Ali Hakro Advocate.

 

Respondent              :  Javed Ali, called absent.

 

Date of hearing        :  23.12.2019.

 

O R D E R

 

NADEEM AKHTAR, J. – This First Rent Appeal filed by the appellant / tenant is directed against order dated 07.08.2019 passed by learned Rent Controller, Cantt. Area, Hyderabad, in Rent Application No.05/2017 filed by the respondent / landlord against the appellant under Section 17(2) of the Cantonment Rent Restriction Act, 1963, (‘the Act’). Through the impugned order, the above rent / eviction application was allowed and the appellant was directed to vacate the demised premises viz. Shop No.1, Building No.118, Survey No.41, Tahir Complex, Doctors’ Lane, Saddar, Hyderabad, on the ground that he had failed to comply with the tentative rent order.

 

2.         Relevant facts of the case are that the above eviction application was filed by the respondent seeking eviction of the appellant on the grounds of personal need, default in payment of monthly rent and damage caused to demised premises. Written statement was filed by the appellant wherein the above grounds urged and the allegation of default made by the respondent were denied by him. Thereafter, on 01.02.2017 the respondent filed an application under Section 17(2)(i) of the Act praying that the appellant be directed to deposit monthly rent in Court at the rate of Rs.12,000.00 per month. During pendency of his main eviction application and the above application for deposit of rent in Court, another application under Section 7(2)(a) of the Act was filed by the respondent on 30.05.2019 praying that fair rent at the rate of Rs.36,000.00 per month be fixed in respect of the demised premises and the appellant be directed to deposit monthly rent at the said rate. The said application for fixation of fair rent filed by the respondent on 30.05.2019 was allowed by the Rent Controller on the same day. Thereafter, a tentative rent order was passed by the Rent Controller on 17.07.2019 by directing the appellant to deposit future rent at the rate of Rs.20,000.00 per month with effect from July 2019 on or before the 05th day of each calendar month till final disposal of the eviction application. As the appellant did not comply with the said tentative rent order, the main eviction application was allowed by the Rent Controller through the impugned order, by directing him to vacate the demised premises.

 

3.         In the present appeal, the respondent was duly served whereafter a counsel viz. Mr. Murtajiz Ali Jafri filed power as well as a statement dated 20.09.2019 on his behalf. However, the respondent and his learned counsel have chosen to remain absent at the time of hearing although name of the counsel has appeared in the cause list and this appeal has been called twice since morning.

 

4.         It is a matter of record that the respondent had filed an application under Section 17(2) of the Act seeking eviction of the appellant on the grounds alleged therein, and he had also filed an application therein for passing of a tentative rent order which application was pending. The provisions of Section 17 of the Act clearly show that the Rent Controller has no power under the said Section to fix or determine fair rent in respect of the demised premises. The power to fix or determine fair rent can be exercised under the Act by the Rent Controller only under Section 7 of the Act on an application filed by the tenant or landlord, as the case may be. It is significant to note that the cause of action for filing an application under Section 7 of the Act could be that the rent is insufficient or excessive, and the cause of action for filing an application under Section 17 of the Act would be that the tenant is liable to be evicted on any of the ground(s) enumerated in the said Section 17. Thus, the causes of action for filing applications under Section 7 and 17 of the Act are separate and distinct, and as such separate applications should be filed for seeking relief under the said Sections. In the present case, the application filed by the respondent under Section 7 of the Act for fixation of fair rent was not maintainable as the same was filed by him in the eviction application already filed by him under Section 17 which was pending.

 

5.         The other important aspect of the case is that record shows that the application filed by the respondent on 30.05.2019 for fixation of fair rent was allowed by the Rent Controller on the same day without notice to the appellant and without providing him any opportunity of hearing. Such order, being in clear violation of the well-settled principles of natural justice, is not sustainable in law, and due to this reason the appellant was not bound to deposit the rent in pursuance of such illegal order.

 

6.         In view of the above discussion, the impugned ex-parte order passed by the Rent Controller on 17.07.2019 regarding fixation of fair rent as well as the order passed on 07.08.2019 for eviction of the appellant on the ground of non-compliance of the said ex-parte order, are hereby set aside. The Rent Controller is directed to decide the main eviction application filed by the respondent under Section 17 of the Act strictly in accordance with law. The appeal is allowed in the above terms with no order as to costs and pending applications stand disposed of accordingly.

 

 

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      J U D G E