2002 PLP 567 (MLD)

Muhammad Akbar Butt for Respondent. Date of hearing: 4th May, 2000. Briefly stated the facts are that the plaintiff/ respondent filed a suit for possession through ejectment and mesne profit against the defendant/petitioner claiming himself to be owner of House No.659 Street No‑.113 Sector G‑9/3, Islamabad, which was recited out to the defendant/petitioner vide lease agreement dated 1‑12‑1988 at Rs.4,800 per month for a period of two years commencing on 6‑12‑1988 and ending on 5‑12‑1999. The suit was resisted by the defendant/petitioner vide written statement dated 9‑9‑1998.

2. During the pendency of the suit, the plaintiff/respondent moved an application under section 151, C. P. C., praying that the defendant/petitioner be directed to deposit rent. Vide order, dated 18‑12‑1998, the said application was accepted ,the defendant/petitioner was directed to deposit Rs.96,000 on account of arrests of rent from 6‑12-1997 to 6‑12‑1998 in the Court on or before 14‑1‑1999. He was further directed to deposit Rs.8,000 per month before 15th of each succeeding month. The, defendant/petitioner filed an application dated 23‑1‑1999 for review of order dated 18‑12‑1998 requesting for the adjustment of Rs.47,000 towards the total amount of Rs.96,000 and further requested that the remaining amount be allowed to be deposited in four easy installments. On the other hand the plaintiff/respondent filed an application on 12‑2‑1999 under Order 17, rule 3, C.P.C. for decreeing the suit for non‑compliance of order, dated 18‑12‑1998. After hearing the learned counsel for the parties, the trial Court accepted the application moved by the plaintiff/respondent under Order 17, rule 3, C.P.C., and decreed the suit on 24‑3‑1999. The defendant/petitioner filed an peal against the judgment and decree, dated 24‑3‑1999, which was dismissed by the learned District Judge, Islamabad vide judgment and decree, dated 31‑7‑1999 Hence the instant civil revision.

3. Arguments have been heard and record perused. 4.' Contention of learned counsel for the petitioner is that the trial Court has closed his evidence under Order 17, rule 3, C.P.C. on the ground that he had failed to comply the order, dated 18‑12‑1998. He submits that the trial Court was not competent to close the evidence under Order 17, rule 3, C.P.C. as the non‑compliance of order, dated 18‑12‑1998 did not attract the penal provisions of Order 17, rule 3, C.P.C. and the trial Court was bound to decide the suit on merits. He further contended that the impugned judgments appear to have been passed by applying analogy of provisions of section 13(6) of Rent Restriction Ordinance, 1959 which are not applicable to the instant proceedings. He thus, submitted that both the Courts have not applied the correct law as such impugned judgments are not sustainable and he set aside and the suit be remanded to the trial Court for its decision afresh on merits.

5. Conversely, the impugned judgments have been supported by learned counsel for the plaintiff/respondent.

6. The point involved in the instant civil revision which requires adjudication is, if in the ,given circumstances the trial Court could pass an order under Order 17, rule 3, C.P.C. for non‑compliance of order, dated 18‑12‑1998 and direct the defendant/petitioner to vacate the premises. Learned counsel for the petitioner contends that as provisions of Rent Restriction Ordinance are not applicable in the instant proceedings, so the trial Court . on the analogy of provisions bf section 13(6) of the Rent Restriction Ordinance could not pass an order under Order 17, rule 3, C.P.C. His stand is that the only course available with the trial Court was to decide the matter on merits irrespective of the fact whether the defendant/petitioner had complied with the order, dated 18‑12‑1998 or not. He further contends that the suit for possession through ejectment and mesne profit is governed by Transfer of Property Act, as such provisions of Transfer of Property Act are applicable while adjudicating such suits and provisions of section 13(6) of the Rent Restriction Ordinance cannot be made applicable in the instant case.

7. There is no cavil to the proposition that in Islamabad, Punjab Urban Rent Restriction Ordinance, 1959, is not applicable, as such landlords/owners have to file suits for possession through ejectment and mesne profits against the tenants and such proceedings are regulated under the Transfer of Property Act, 1882. Since there is no explicit provisions analogous to section 13(6) of the Rent Restriction Ordinance in the Transfer of Property Act, so the landlord/owners have to move applications under section 94 read with section 151., C.P.C. for‑seeking said relief. Now the next question is, if such an application can be moved and an order thereon can be passed, then its non‑compliance shall also attract the penal provision as contemplated under Order XVII, rule 3, C.P.C. There is also no denial of the fact that such an application under sections 94 read with section 151, C.P.C. can be moved and a tenant can he directed to deposit the amount claimed and compensation for use and occupation of, the property. Reliance is placed on C.P.L.A. No.521 of 1997 dated 27‑4‑.1998 (Mian Muhammad Attaullah v. Dr. Amjad Yaseen and others), in which it has been held that an order for deposit of such amount can be passed in an application moved under sections 94 reads with section 151, C.P.C. As such an order can be passed, so its non‑compliance shall also entail the consequences enumerated in Order XVII, rule 3, C.P.C. In the instant case, the trial Court directed the petitioner to deposit a certain amount vide order, dated 18‑12‑1998. As the said order was not complied with, so it entailed the penalty provided under Order XVII, rule 3, C.P.C. which was inflicted upon the petitioner vide order, dated 24‑3‑1999 by the trial Court which order has been confirmed by the appellate Court vide judgment and decree, dated 31‑7‑1999. The impugned judgments and decrees do not suffer from misreading and non‑reading of evidence or jurisdictional defect. There is no force in this civil revision and the same is hereby dismissed. H.B.T./W‑34/L Revision dismissed.