IN THE HIGH COURT OF SINDH AT KARACHI

C.P.No.S-88 /2009

                                                    Present: Justice Ms. Rukhsana Ahmad

 

 

O R D E R

 

Date of Hearing                                    :                      03.12.2009                                         .

 

 

Petitioner                                             :                        Through Mr. R.F. Virjee,

                                                                                     Advocate                                          .

 

Respondents                                        :                        Respondents Mr. Badruddin Khan,      

                                                                                    Advocate                                           .                                              

 

 

 

MS. RUKHSANA AHMAD, J.- Being aggrieved and dissatisfied with the impugned judgment in F.R.A No. 176 of 2007, passed by District and Sessions Judge Karachi (South) dated 18.02.2009 who upheld the Order of the VII Senior Civil Judge and Rent Controller, Karachi (South) in R.C No. 1198 of 1998 on an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, whereby the defence of the Petitioner was struck off.

2.       The facts of the case in nutshell are that the Petitioners who are the tenants in respect of a shop on the ground floor premises in a building known, as Fakhri Manzir situated at Plot No. S.B-1/33, Syedna Burhanuddin Road (Mansfield Street), Saddar, Karachi (hereinafter referred to as the demised premises) belonging to the Respondents, both the parties seem to have an old history of litigation pertaining to the subject premises. Initially rent case (No. 3820 of 1981) was instituted in the Court of the Vth Rent Controller (South) under section 10 of the Sindh Rented Premises Ordinance, 1979, which was compromised between the parties. An ejectment application was filed under section 15(2)(ii)(viii) of the Sindh Rented Premises Ordinance, 1979 for ejectment of the Petitioners from the demised premises, and the present Petition is an offshoot steming from Rent Case No. 1198 of 1998, which was instituted by the Respondent. The Respondents made an application under section 16(1) of the Sindh Rented Premises Ordinance, 1979 being a Rent Application for deposit of rent in Court and the learned Rent Controller after hearing both the counsels has passed the tentative rent order on 07.04.2001, disposing of the said Application.

3.       The Respondents moved an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 on 24/7/2007 wherein it was contended that the Petitioners have deposited the rent of March, 2001 on 12.04.2001 instead depositing the same on 10.04.2001, as such they failed to comply with the order passed on 07.04.2001 by the learned Rent Controller. The learned Rent Controller heard the arguments of both the counsels and held that the Petitioners had committed a willful default by not complying with the tentative rent order dated 07.04.2001 in its letter and spirit and therefore the said application was allowed as prayed and the defense of the Petitioners was struck off and thereby the Petitioners were directed to handover the vacant and peaceful possession of the demised premises to the Respondent. Thereafter, the Petitioners filed an appeal before the learned Appellate Court, after hearing both the parties vide impugned judgment dated 18th February 2009 the Appellate Court dismissed the Rent Appeal. Therefore, through this instant Petition, the Petitioners have assailed the said judgment of the Appellate Court.

4.       Mr. R.F Virjee learned counsel for the petitioners argued that the learned Rent Controller allowed the application of the Respondent under section 16(2) of the Sindh Rented Premises Ordinance, 1979 by contravening his earlier Order dated 07.04.2001. He further argued that the learned District and Sessions Judge also exceeded the parameters of his jurisdiction in framing the issue “Whether the Rent Controller has any authority to fix the future date for the past rent as he has done in the Order dated 07.04.2001”, Whereby the order of the Rent Controller was affirmed by the impugned judgment. The learned counsel for the petitioner further argued that it was especially mentioned in the order that the opponent is directed to deposit rent for March, April upto 10th May 2001, and thereafter the future / subsequent rents to be paid by the 10th of each month. Therefore, Petitioners in compliance of said order paid five months advance rent on 12th April 2001. Learned counsel lastly argued that in these circumstances, both the concurrent findings of the learned Rent Controller as well as learned Appellate Court may be declared to be illegal and passed without considering the actual directions contained in the order passed on an application under section 16(1) of the Ordinance, and consequently, the instant Petition may be allowed and both the order/ impugned Judgment may be set aside.

5.       On the other hand Mr. Badaruddin Khan learned counsel for the Respondent argued that the Petitioners have failed to comply the order of the learned Rent Controller passed under section 16(1) of Sindh Rent Premises Ordinance, 1979 on 07.04.2001 regarding deposit of rent and the petition is not maintainable as the same has been filed by two of the petitioners instead of four, Mr. Zoeb Amir Khambati and Dr. Aziz Amir Khambati have not been joined in the said petition. Moreover the said petition has been filed against the dead person Akbar Ali, his legal representatives were not joined in the petition by the petitioners.  He lastly argued that both the concurrent findings of the learned Rent Controller as well Appellate Court are based on proper findings and the Petitioners have failed to point out a single lacuna or illegality in the said findings, therefore, the Petition may be dismissed.

6.       I have heard both the learned counsels at some length and have perused the material placed before me. The short controversy involved in the instant Petition to the effect that whether the rent for the month of March 2001 was deposited in time or not in pursuance of the order of the learned Rent Controller. It would be profitable to reproduce the Section 16(1) of the Ordinance, which deals with tentative rent order, which may be read as under:-

“16. Arrears of rent.-(1) Where a case for eviction of the tenant has been filed, the controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.”

 

7.       A bare perusal of the above provisions of the Ordinance stipulates that the Rent Controller could only order the tenant to deposit the arrears of rent due within such period as he fixes in this behalf which in the instant case was to be paid by 10th May 2001 and whereas, future monthly rent would be deposited by the tenant on or before the 10th of every month until final disposal of the case, which is a mandatory requirement of the Section. The order on the application under section 16(1) of the Ordinance was passed on 7th April 2001 and therefore, it is crystal clear from the perusal of the above section that the Petitioners have deposited the rent for the month of March and April 2001 on 12th April 2001. The Petitioner infact deposited 5 months rent on 12/4/2001 towards the demised premises. The relevant portion of the cross examination of Petitioner Dr. Pervez Amir Khambati, is reproduced below:-

“It is correct to suggest that Court has passed the order to deposit the rent in this case from March 2001, before the 10th day of each month. It is correct to suggest that I have deposit the rent for the month of March on 12-4-2001. Vol. says the rent till Feb 2001 was already deposited in MRC No.1794/96 and the rent of March was due in April 2001.”

 

The second part of the Rent Controller’s order was, “to onward in this case on or before 10th of every English calendar month without fail.

The Rent Controller while passing Order on the Application filed U/S 16(2) of SRPO 1979 has erred and misread that the opponents have committed violation of the Order dated 7/4/01 by depositing the Rent of March 2001 on 12th April 2001 instead of 10th April 2001 as such they have failed to comply with the tentative rent Order passed by the Court.

There is no denial of the payment being made on 12/4/01 by the opponents which included rent from March and April 2001 and further three months Rent upto July 2001 for the demised premises. The Order which was passed by the Rent Controller was granting leverage to opponents to deposit rent of the months of March and April 2001 till 10th May 2001 which was complied with within the prescribed time, as such this Hon’ble Court deems to conclude that the concurrent findings of both the Courts below suffer from misreading of the Order dated 7/4/2001 and therefore, the concurrent findings of the two Courts are set aside, and the Petition is allowed as prayed and the Rent Case is remanded to the trial Court to be decided on merits.        

 

Judge.