1996 PLP 1816 (MLD)

Muhammad Hashim Khan for Respondents Nos. 4 to

6. Petitioners instituted an ejectment petition against their tenant Muhammad Yasin/respondent No.3 and others in 1978. On 30‑6‑1978 the learned Rent Controller passed an order of deposit of tentative rent. Respondent No.3 during the pendency of the ejectment petition, sub‑let the disputed premises, the shop in question, to one Khushi Muhammad, and as such, defaulted in payment of rent in June, 1980. On petitioner's application, the Rent Controller Hasripur, vide his order dated 5‑1‑1981 struck off the defence, and passed an order of ejectment against the respondents, and the possession was ordered to be delivered to the petitioners, forthwith, but no determination of rent was made by the Rent Controller, and no order was passed by him qua the payment of arrears of rent. Respondents never challenged this order of the Rent Controller. However, petitioners being aggrieved of non‑determination of arrears of rent instituted an appeal which was dismissed by learned Additional District Judge, Bahawalpur on 1‑3‑1983. Petitioner's Writ Petition 261/83/BWP was accepted on 10‑10‑1989 after setting aside the order dated 1‑3‑1983 of ADJ/Bahawalpur the case was remanded back to Rent Controller, Hasilpur in the following terms:‑‑ "In the circumstances of the case, I keep the order of ejectment intact and remand the case to the learned Rent Controller for the final determination of the actual rent payable by tenant to the landlord. He shall dispose of the case after taking the evidence of both the parties and hearing arguments advanced before him. I make no order as to costs."

2. The learned Rent Controller after framing the necessary issues and after hearing the parties vide his order dated 16‑12‑1990 determined the rate of rent to be Rs.200 per month payable by respondent No.3 to the petitioners from November, 1975 to December, 1990. Accordingly, petitioners filed an execution petition against respondent No.3 for the recovery of arrears of rent of Rs.33,

500. In the meanwhile respondent No.3 instituted an appeal, in which, learned Additional District Judge, BWP granted temporary injunction to him vide order dated 20‑1‑1991, where under, the operation of the impugned order and decree dated 16‑12‑1990, of the Rent Controller was suspended, and thereafter, the petitioner's execution petition was adjourned sine die .by the Executing Court on 3‑4‑1992. The learned Additional District Judge, Bahawalapur vide his order dated 3‑3‑1994 partly accepted the appeal of respondent Muhammad Yasin, and held that the rent was payable by respondent No.3 to the petitioner Q Rs.200 per month only from November 1977 to March, 1980 (29 months) which comes to Rs:5,

800. Hence this petition.

3. It is contended on behalf of the petitioners that possession was delivered to them on 9‑6‑1994, and as such, they are entitled to the recovery of rent from respondent No.3 with effect from November, 1975 to June, 1994 &Rs.200 per month which comes to Rs.43,100 and that the impugned order of the Additional District Judge, Bahawalpur is arbitrary and based on conjectures and that the appeal before him was not competent.

4. I have heard the learned counsel at length, and after admitting this petition to regular hearing, this petition is being disposed of today, because the full‑fledged arguments have been addressed by both the learned counsel.

5. The order dated ‑16‑12‑1990 passed by the learned Rent Controller was passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance of 1959 because the said order was in regard to the determination of the rent due and the determination of the rate of rent, and in regard to the payment of the due rent, and there is no other provision in the Punjab Urban Rent Restriction Ordinance of 1959, except, section 13(6) of the said Ordinance, A where under the Rent Controller could have passed such an order. The 1st proviso to subsection (1) of section 15 of the said Ordinance bars on the appeal against the order made by Rent Controller under subsection (6) of section 13 wherein the order is made determining approximately the amount of rent due or the, rate of rent and directing the tenant to deposit the rent due.

6. Learned counsel appearing on behalf of respondents has not been able to show as to how the appeal was incompetent before the District Judge against the order dated 16‑12‑1990 of the Rent Controller which was definitely passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance.

7. For the reasons mentioned above, this writ petition is accepted with costs, and the order dated 3‑3‑1994 of the learned Additional District Judge, Bahawalpur is set aside with the result that the order dated 16‑12‑1990 of the B learned Rent Controller is restored with a modification to the extent that respondent No.3 is liable to pay the rent to the petitioners at the rate of Rs.200 1 per month from November, 1975 to June 1994 because the possession was delivered to the petitioners on 9‑6‑1994, which comes to Rs,43,100, and the same shall be paid (minus Rs.5,600) which has been received by the petitioners) by respondent No.3 to the petitioners along with an additional amount of profit on the total amount. The amount of profit shall be determined in accordance with the rate of profit being given by the National Bank, of Pakistan. A.A./S‑18/L???????????????????????????????????????????????????????????????????????????????????????? petition accepted.