2006 PLP 2046 (YLR)

MRS. FAKHAR UN NISA KHOKHAR, J.

Brief facts in this appeal are that the respondents filed an eviction petition on the basis of default, personal requirement and alteration in the property without permission. The learned Rent Controller on the first date of hearing in view of section 17(8) of the Cantonment Rent Restriction Act, 1963 on 16-9-2002 gave an order that respondent within seven days is directed to deposit the rent for the months of August and September, 2002; and the future rent of each commencing month in advance on 5th of every month. The appellant deposited the rent for the months of August and September, 2002 on 25-9-2002 instead of 23-9-2002 which was the target date and further deposited the rent of October, 2002 on 15-10-2002 with the delay of ten days. Respondents filed an application for striking of defence of appellant under section 17(9) of the Cantonment Rent Restriction Act, 1963 for committing wilful default in depositing the rent. This application was contested through filing written reply and the learned Rent Controller vide order dated 30-12-2002 observing that there was nothing on the file to show that default was unavoidable, wilful and beyond control of tenant struck off the defence of appellant and ordered that respondents-landlords to put in possession without any further proceedings.

2. Arguments advanced by learned counsel for the appellant are that copy of agreement of tenancy shows that rent is to be paid in advance on 1st till 10th of each commencing month and in case if for certain reasons the rent is not paid then the rent of two months, one the preceding month and the other month will be paid together and that the appellant paid the monthly rent regularly to the respondent No.1 till July, 2002. The application for striking of defence of appellant filed mala fidely by respondent and learned Rent Controller while passing illegal order unlawfully struck off the defence of the appellant hence, this appeal.

3. Learned counsel for the respondent submitted that default in depositing the rent for the months of August and September, 2002 is proved. The appellant was in a habit of depositing the rent not within the dates as agreed between them through the rent agreement and even when the Court passed order he did not deposit the rent for the month of October, 2002 in time and committed a default of ten days. He has deposited the rent for the months of January and February, 2003 on 18-2-2003. He relied on "Muhammad Ali Tauqir v. Rafiq Ahmad" (1999 CLC 795), where it is held that the delay of even one day, in making deposit of rent would be default within the meaning of section 17(9) of Cantonments Rent Restriction Act, 1963. The Rent Controller having no power to extend time or condone default committed by tenant, no exception would be taken to the finding of Rent Controller to the effect that tenant was liable to be ejected.

4. I have heard the learned counsel for the parties and perused the record as well as the relevant law on the subject. In the present case no compelling or unavoidable circumstances have been shown by the appellant for not depositing the rent in view of section 17(9) of Cantonment Rent Restriction Act, 1963. The learned counsel for the appellant has argued that in view of section 17(8) of the Act the rent of commencing month is to be deposited before 5th of next month but the learned Rent Controller committed illegality while directing to deposit advance rent on 5th of each commencing month.

5. I am afraid I am not convinced by this argument of learned counsel for the appellant as in tenancy agreement it is also agreed between the parties that rent of each commencing month will be deposited in advance on first till 10th of the month, therefore, the learned Rent Controller has not committed any error of jurisdiction while passing the order of deposit of advance rent under section 17(8) of the Act. Even from the perusal of record it is found out by this Court that receipts for the months of February and May, 2002 are not on the record, therefore, the order passed by the learned Rent Controller is unexceptionable and is not interfered in the instant appeal, which is dismissed being without substance. However, four months time from passing of this judgment is given to the appellant to vacate and handover the premises intact to the respondent No.1. M.I./M-86/L Appeal dismissed.