1982 PLP 2598 (CLC)

8. Against the above order the appellant filed Appeal No. 559/78. The learned lower Appellate Court by order dated passed on 27‑5‑1980 came to the conclusion that the appellant had failed to deposit rent and that the flagrant default stands unexplained, and that no reasons were shown as to why the tentative rent order could not be obeyed in ordinary course. It was further observed that no plea at all was taken by the appellant that he was compelled by circumstances beyond his control due to which he could not deposit rent. Having thus found that since the default was clearly wilful it was held that the learned Rent Controller was perfectly right in recording a finding in that direction. The appeal was accordingly dismissed.

9. Against the aforesaid orders passed on 30th September, 1978 and 27th May, 1980 by the Rent Controller and the learned First Appellate Court respectively the appellant has preferred this second appeal under section 15 (4) of the then West Pakistan Urban Rent Restriction Ordinance, 1959.

10. Mr. Raja Qureshi the learned Advocate for the appellant in the first place argued that the order passed on review application filed by the appellant on 4‑9‑1977 whereby the Rent Controller accepted the contention of the appellant was correct to the extent that certain payments had‑ been made by the appellant and as were disclosed in the written statement. According to learned counsel this assertion of the appellant is substantiated by the order passed afresh by the Rent Controller directing the appellant to deposit arrears of rent from May, 1974 to 31‑7‑1977 before 30‑9‑1977 after adjustment of Rs. 2,450 and the rents paid after the earlier order for deposit of rents. The appellant was further directed to continue to pay current monthly rent for the period thereafter for every month before 15th of each month.

11. Learned counsel then submitted that this order was not an appealable order under section 15 (1) of the Ordinance of 1959 and accordingly it was contended that the Rent Appeal No. 290177 filed by the respondent and which was allowed by the First Appellate Court by order passed on 10‑12‑1977 was illegal and erroneous. The above argument of the learned counsel cannot be accepted as the Appeal No. 290 of 1977 was directed against the order dated 4‑9‑1977 whereby the Rent Controller not only allowed review application but had also rejected the landlord's application under section 13 (6) for striking off the defence of the appellant. Since by order dated 4‑9‑1977 the Rent Controller not only purported to have reviewed the order dated 14‑3‑1977 but had also rejected to application filed under section 13 (6) by the respondent/ landlord for striking off the defence of the appellant the Rent Appeal No. 290/1977 was competent under section 15 (1) of the West Pakistan Urban Rent Restriction Ordinance of 1959. If any authority is required for the proposition, reference may be made to the case of Hiyar Ali v. Mrs. Azaza Mahmood (1980 S C M R 298). In the appeal thus filed, against order dated 4‑9‑1977, the lower Appel late Court being competently seized of the matter, first set aside the said order passed by the Rent Controller (on 4‑9‑1977) in purported exercise of powers of review and thereafter as regards the order of rejection of application under section 13(6) with the observation that the order for deposit of rent. passed earlier by Rent Controller on 14‑3‑1977 is valid, operative and in force ; remanded the case to the Rent Controller for deciding the said application afresh on the basis of the rent order dated 14‑3‑1977. I am further of the view that the learned Rent Controller uncle; the provisions of Ordinance of 1959 had no lawful authority to modify or rescind the order for deposit of rent earlier passed on 14‑3‑1977 by him as he did by order passed on 4‑9‑1977, and that even on merits, no case for review was made out. The order of 14‑3‑1977 is reproduced in extenso to appreciate this question :‑‑ "According to the applicant the rent of the disputed premises is Rs. 87 per. month and the opponent has failed to pay the rent from May, 1974 to February, 1977 i.e. for 34 months amounting to Rs. 2,

958. The contention of the opponent is that he has paid up to date rent and hence there is nothing more to be paid as rent to the applicant. The burden of paying the rent lies upon the tenant to prove the payment of rent to the landlord. The opponent failed to discharge this burden as no rent receipts have been filed by him in this case. I therefore, direct the opponent to deposit the arrears of rent tentatively amounting to Rs. 2,958 from May, 1974 to February, 1977, in this case, in this Court before 15th May, 1977. The opponent is further direct to deposit the rent of March, 1977 before 15th of April, 1977 and also continue to deposit the rent of each month before 15th of the following month." A perusal of the above order shows that there is no error apparent on the face of the record or any other cause, within the meaning of Order XLVII, rule 1, C. P. C. to call for review or to modify the above order. In the circumstances of the case I am of the view as held by the learned 1st Appellate Court in Appeal No, 290/77 that the Rent Controller neither had the authority to review the order passed on 14‑3‑1977 giving direction for deposit of arrears of rent and future rent nor any justification was made out in law for passing the alleged order of review recalling the earlier order dated 14‑3‑1977 or to pass a new or fresh order on 4‑9‑1977 under section 13 (6) for deposit of rent. I would like to refer here to the case of Fazai Ahmed v. Muhammad Ali (P L I3 1978 Lah. 1032) where the learned High Court held :‑‑ "The question arises whether the Controller was competent to extend time or pass a new order giving the tenants a fresh date for deposit of rent.' It was held in Messrs Ansari Brothers v. Holy Trinity Church Trust that the time for payment of the monthly rent before fifteenth day of each month is statutorily fixed under section 13 (6) of the Ordinance, and it is not within the competence of the Rent Controller to enlarge that time." The learned Rent Controller while passing fresh order on 4‑9‑1977 failed to appreciate that once the order had been passed under section 13 (6) on 14‑3‑1977 directing the tenant to deposit arrears of rent and future rent, he could not pass an order extending the time to deposit rent in the purported exercise of power of review on the alleged ground that certain alleged payments had not been taken into consideration by him while passing the order for deposit of rent on 14‑3‑1977 under section 13 (6). Moreover it is established principle that power to review can only be exercised in such cases where the power is expressly conferred by statute upon the tribunal as the right to review any decision of a Court of law like the right of appeal is a substantive right and not a mere matter of procedure. If any authority is needed reference be made to the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (P L D 1970 S C 1). Thus neither on facts nor in law the Rent Controller was justified or even competent to have reviewed the order passed on 14‑3‑1977 and proceed to pass a fresh order on 14‑9‑1977 under section 13 (6) directing the tenant/appellant to deposit arrears of rent and future rent on an application, moved with ulterior motives after the default in deposit of rent had already been committed of the order dated 14‑3‑1977.

12. I would like to recall here that by order passed on 14‑3‑1977 the tenant was directed to deposit arrears of rent amounting to Rs. 2,958 for the period from May, 1974 to February, 1977 before 15th May, 1977 and to deposit monthly rent of March, 1977 before 15th April, 1977 and to continue to deposit future rent for each month before 15th of the following month. The Rent Appeal No. 119/77 filed against the above order was dismissed in limine. Application for striking off the defence was filed on 18‑5‑1977 on the plea that the above order of 14‑3‑1977 had not been complied with and it was only thereafter that the application for review of this order was filed after a lapse of almost two months on 10‑7‑1977 by which date the appellant in terms of the order passed on 14‑3‑1977 had already committed default in deposit of arrears of rent which he was required to deposit before 15‑5‑1977 and also committed default in deposit of tent for the months of May and June, 1977. It may also be pointed out that the appellant deposited rents for the months of March, 1977 and April 1977 on 14‑4‑1977 and 4‑5‑1977 respectively and only these deposits were in time. For other months the appellant clearly committed default.

13. The other significant fact to note is that the order dated 10‑12‑1977 passed by the learned 1st Appellate Court in Rent Appeal No. 290/77, setting aside the order passed in review on 4‑9‑1977 by the Rent Controller and remanding the case with the direction to decide the landlord's application under section 13 (6) on the basis of order dated 14‑3‑1977, was allowed to attain finality by the tenant (appellant) who did not challenge the said order by filing any appeal against the same or by taking any other legal proceedings. Since the tenant had allowed the above order and direction given in Rent Appeal No. 290/77 to attain finality, it is not open to the appellant tenant to attack the said order before this Court Reference may be made to the case of Murad Bibi v. Mst. Ramzan (1968 S C M R 1007) where the case was remanded by the Settlement Commissioner and the said. order was not challenged in revision or by petition for writ in the High Court and was thus allowed to become final. Pursuant to the order of remand, the Deputy Commissioner passed order which wets challenged before the High Court. The honourable Supreme Court observed that order of remand having been allowed to become final, could not be attacked before the High Court or the Supreme Court. In my humble opinion the principle laid down in the above case applies to the facts of this case as well as it is not open to the appellant to contend that the order passed in Appeal No. 290/77 was not passed competently.

14. After the remand of the case as per order passed on 10‑12‑11977 in the Rent Appeal No. 290/77, the case came up before the Rent Controller. The learned Rent Controller after hearing the parties by order passed on 30‑9‑1978 held that the appellant had to deposit in Court Rs. 3,132 before the 15th of May, 1977, but the total amount deposited by the appellant in Court before the said date amounted to Rs. 863 only and that there was flagrant default committed by the appellant tenant which remained unexplained and that no reasons were advanced as to why the order passed on 14‑3‑1977 could not be complied with in the ordinary course. The learned Rent Controller having come to the above conclusion and finding that in the absence of any plausible circumstance showing that the tenant was unable to make the deposit of rents for reasons beyond his control ordered the striking off the defence of the appellant and directed him to hand over possession of the premises in question to the respondent. 15.. The First Appellate Court dismissed the Appeal No. 559/78 preferred by the appellant by order passed on 27‑5‑1980 for the reason that there was flagrant default on the part of the appellant in complying with the order of the Rent Controller and in the absence of any reason shown in the written objection making out case that the deposit of arrears and future rents could not be made for the circumstances beyond the control of the tenant, the defence was rightly struck off by the Rent Controller Court. The concurrent findings given as above by the two Courts below, could not be demonstrated by the learned counsel as erroneous in law or even on facts.

16. Before concluding I would like to observe that in the order passed on 14‑3‑1977 there was no clerical mistake or accidental omission which called for correction. The application for review was nothing but an attempt to get a fresh order of deposit of rent to defeat the consequences arising out of non‑compliance with the direction given on 14‑3‑1977 under section 13 (6) by the Rent Controller for deposit of arrears and future rent. To allow such a course to succeed is against the provisions of law which itself makes such interlocutory orders non appealable.

17. For the above‑mentioned reasons, I hold that the order dated 4‑9‑1977 was rightly passed by the learned First Appellate Court. The conclusion therefore, is that the appellant who had deposited only a meagre amount of Rs. 863 before 15‑6‑1977 against an amount of Rs. 3,132 which he ought to have deposited before 15‑5‑1977 had committed a clear default in complying with the order for deposit of rent passed on 14‑3‑1977 by the Rent Controller under section 13 (6). As no plausible or valid reason justifying non‑compliance with the said order was made out, the defence was rightly held to have been struck off by the Rent Controller by order passed on 13‑9‑1978 and by the 1st Appellate Court in appeal on 27‑5‑1980. This appeal accordingly fails on merits and is dismissed as such. The appellant is however granted six months time to vacate the premises subject to the condition that he shall continue to deposit the rent every month for this period. In case of default in payment of rent for any month during this period or vacating the premises on the expiry of the period mentioned above whichever event happens earlier, the writ of ejectment will be issued without any notice to him. There shall however be no order as to costs. M. A. Appeal dismisses.