1992 PLP 1574 (MLD)

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction‑‑‑Orders of Courts below being not in accordance with law were set aside and declared to be without [awful authority ‑‑‑Ejectment application would revive for proceeding to trial on evidence and decision on merit in accordance with law ‑‑‑Ejectment case would proceed from stage when tenant's defence was struck off. Mirza Anwar Baig for Petitioners. Hafiz Saeed Ahmad Sheikh for Respondents Nos.3 to

12. Date of hearing: 22nd April, 1992. This petition under Article 199 of the Constitution arises out of a tenancy dispute. Rent Controller directed ejectment on account of the tenant failing to comply with a direction under section 13(6) of the Rent Ordinance, to deposit monthly rent in time. Lower Appellate Court confirmed his decision. On 4‑.6‑1989, respondents brought a petition for eviction of the petitioners, from Godown No.2 in Property No.W/19‑20, Gandam Mandi, Rawalpindi City, on account of its requirement for reconstruction in accordance with the sanctioned building‑plan, and, its subletting without their prior permission. There was no allegation about rent‑default. Tenancy and the rent payable for it per month were not disputed. Petitioners submitted their written statement and controverted the allegations for reconstruction, and creation of sub‑tenancy. On 5‑10‑1989, Rent Controller under ‑section 13(6) of the Rent Ordinance directed the tenant to deposit, in Court, monthly rent at the agreed rate of Rs.1,000 per month before 15th of each succeeding month. Obviously, first deposit was relatable to the month of October, 1989. After making the above direction, issues on merits were settled and the hearing of the ejectment‑case adjourned to 6‑11‑1989 for taking of evidence from the respondents. Prior to commencement of ejectment proceedings, tenant paid the rent to respondent No.3 for and on behalf of respondents Nos.3 to 12 through money‑orders. As in the past, under a bona fide mistake, the tenant remitted the rent for the month of October, 1989, to respondent No.3 on 31‑1Q‑1989. Upon refusal to take the rent, it was sent back to its remitter on 21‑11‑1989. Similarly, rent for the month of November, 1989, was remitted through money‑order on 14‑11‑1989. As, in case of rent for the month of October, rent for the month of November was also received back upon its refusal on 23‑11‑1989. Meanwhile, postman had informed the tenant on 16‑11‑1989 that respondent No.3 was avoiding receipt of rent sent to him through money‑order. Consequently, the due rent was immediately deposited in the Treasury on 16‑11‑1989. On 4‑1‑1990, respondents Nos.3 to 12 applied to the Rent Controller for striking off defence of the petitioners for violating the rent direction, and, failing to deposit the monthly rent in time. Petitioners submitted a reply and explained the alleged default for its condonation. On 14‑4‑1990, by a few lines order of laconic nature, Rent Controller found the default established, and, directed ejectment of the petitioners from the Godown in question by striking off the defence of the petitioners, and, gave them seven days to vacate. As said above; appeal from this order was dismissed on 21‑5‑1990 by Addl. District Judge, Rawalpindi, who, while dismissing the appeal, gave two months more to the petitioners to hand over possession of the Godown. Facts are not in dispute. Only point requiring decision was, whether remitting of monthly rent by the tenant in time to the landlord was a sufficient compliance with rent direction made under section 13(6) of the Rent 'Ordinance requiring deposit of the monthly rent in Court before a specified date. On the strength of rulings reported in PLD 1978 Lah. 258, 1983 CLC 613, 1988 MLD 1911 Karachi (not produced) and 1990 SCMR 1688 it was submitted that remitting of the monthly rent through money‑order to the landlord before the time fixed for its deposit in Court was a substantial compliance. At was further submitted that without an inquiry into the allegation of rent‑default and circumstances culminating in it, defence of the petitioners could not have been lawfully struck off for forthwith delivery of possession of the rented Godown to the landlords. Learned counsel for respondents Nos.3 to 12 countered arguments advanced on behalf of the petitioners and submitted that it was for the petitioners themselves to come forward to explain the default and inquiry into it was not contemplated. In support, learned counsel referred to rulings in 1992 M L D 1577, PLD 1982 Lah. 72 and 1991 SCMR 1982. As for the necessity for an inquiry into the allegation of rent‑default arising out of a direction under section 13(6) of the Rent Ordinance, learned counsel for the petitioners referred to the cases reported in PLD 1967 Lah. 957 and 1982 CLC 1944. Cases reported in PLD 1978 Lah. 258 and 1990 SCMR 1688 gave clear support to the view that rent remitted through a money‑order for payment to the landlord in time was sufficient compliance with a direction under section 13(6) of the Ordinance directing deposit of due‑rent into the Court. As observed elsewhere, there was no allegation regarding default in payment of rent in the past. It appeared to be a case of old tenancy, and, payment of rent was regular. It was also the case of the petitioners that the rent was paid through money‑orders. Therefore, if the petitioners, relying upon the practice in the past continued it during the currency of the ejectment case, they could not be held defaulters of the direction by the Rent Controller. Without an inquiry on the factual plane and the law declared by the superior Courts, Rent Controller found the petitioners guilty of violating the rent- direction, and, so also did the lower Appellate Court. It was evident that law was not correctly applied to the facts of the case in the lower Courts. Therefore, the judgments rendered by them could not be upheld. It may be of advantage to note that, eventually, even learned counsel for respondents Nos. 3 to 12 felt constrained to say that after setting aside of the impugned orders, the case may be remitted to the Rent Controller for deciding of it afresh on merits in accordance with law. Having regard to the aforesaid, impugned orders of the Courts below directing ejectment of the petitioners are set aside, and, declared to be without lawful authority. Consequently, ejectment case shall revive for proceeding to trial on evidence and decision on merits in accordance with law. Ejectment case was fixed for evidence when the petitioners' defence was struck off and their ejectment ordered. It shall now proceed from that stage onward. Parties shall appear before the Rent Controller, Rawalpindi, on 26‑4‑1992. Trial of the ejectment case shall be finalized by him within three months. Costs shall be borne as incurred. AA./S‑117/L Case remanded.