P L D 1967 Lahore 194 (PLP)

(2) Whether the petitioner requires the house in suit for his own use? (3) What .is the effect of the decision of the previous application filed by the petitioner for the ejectment of the respondent? (4) Relief.

2. The learned Rent Controller found issues Nos. 1 and 2 in favour of the tenant and issue No. 3 in favour of the landlord. He consequently dismissed the petition for ejectment on the 19th of March 1964; as he came to the conclusion that there had been no default in tendering rent and the landlord did not `bona fide' require the house for his own use.

3. The landlord filed an appeal against this order. was argued before the learned Appellate Authority however on an entirely different basis. It was contended that although the petition had been decided in favour of the tenant but since the appeal was a continuation of the original proceedings he was under a legal obligation to deposit the rent for each month before the 5th of the succeeding month. The rent for March 1965, was deposited on the 29th of April, that of February 1965, on the 29th of March 1965, that of January on the 2nd of March 1965, and that of December 1964, on the 9th of January 1965. It was also contended that similar defaults had occurred earlier after the disposal of the petition by the Rent Controller.

4. The learned Appellate Authority came to the conclusion that the defaults mentioned above attracted the provisions of section 13 (6) to the facts of the case and he passed an order on the 1st of June 1965, striking off the defence of the tenant. The latter was directed to put the landlord in possession of the premises in dispute within two months from the date of the order. Hence this second appeal.

5. It has been contended before me that the appellate autho rity had no power to strike off the defence of the appellant in respect of a default alleged to have been committed after the decision of the petition, and more so because the decision was in his favour.

6. The relevant part of section 13(6) runs ag follows: .the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 15th day of each month, the monthly rent due from him." There is no dispute about the fact that such an order was duly made by the learned Rent Controller when he was seized of the matter at the trial stage. The order that he is required by the law to make with regard to the regular payment of future rent is in accordance with the subsection, quoted above, to remain in force `till the final decision of the case'. The default in the present case was made during the time when the appeal under section 15 was pending before the learned Appellate Authority. It requires no gainsaying that an appeal is not a fresh application but is only a continuation of the original proceedings and is, in fact, a stage in the application itself. This view finds support from a number of decided cases including Flour Mills Employees' Union v. Karachi Steam Roller Flour Mills Co. Ltd. (P L D 1964 Kar. 587). The result would, therefore, be that a petition under section 13 cannot be said to have been finally decided until either the time prescribed for filing an appeal under section 15 of the Ordinance has expired or in case such appeals are filed they have been disposed of. Since section 13(6) requires that the direction to deposit future rent shall be effective till the final decision of the case, therefore, if the rent due is not deposited by the 5th day of each month till the appeals are disposed of the tenant shall be considered to be in default within the meaning of subsection (6) and shall be liable to the penal consequences mentioned therein.

7. This conclusion is further supported b the provisions of section 15(5) of the Ordinance. Section 15 of the Ordinance deals with appeals and the proviso to subsection (5) reads as under: "Provided further that the appellate court may direct that instead of the rent being deposited or paid in cash, security to its satisfaction of the amount of the rent shall be furnished by the tenant." The words, "may direct that instead of the rent being deposited or paid in cash" signify that if the Court does not ask for security, the rent shall be continued to be deposited or paid in cash. Had it not been so, the proviso would have been differently worded, e.g., it could have provided that `shall direct that the rent be either deposited or paid in cash, or security, to its satisfaction, of the amount of the rent shall be furnished'.

8. In the present case, there is no dispute about the fact that future rent had not been deposited in accordance with the pro visions of subsection (6) of the Ordinance. I have, therefore, no option but to uphold the order of the learned Appellate Authority and to dismiss this appeal, but in the circumstances of the case I direct that the parties shall bear their own costs. The tenant shall put the landlord in possession of the premises within three months from today. K. M. A. Appeal dismissed.