1993 PLP 2435 (CLC)

Qazi Iftikhar Ahmad for Respondent No.3. Date of hearing: 10th April, 1993. In this Constitutional petition legality of order dated 11‑1‑1993 passed by the learned Additional District Judge, Lahore, whereby the appeal filed by the petitioner against the order dated 4‑1‑1993 passed by the Rent Controller through which his defence for non‑deposit of rent for the month of July 1990 before the fixed date was struck off has been challenged.

2. The facts admitted by the learned counsel for both the parties are that the petitioner was inducted in the premises in dispute as tenant in the month of January 1990. In the next month i.e February 1990 the ejectment petition was filed by respondent No.3 against the petitioner seeking his eviction from the premises on the ground of damage and personal need. No ground was taken regarding default in the payment of monthly rent.

3. On 11‑6‑1990 after filing the written statement the Rent Controller proceeded to pass order under section 13(6) of the Rent Restriction Ordinance, directing the petitioner to deposit monthly rent from July 1990 before 15th day of each succeeding month. The petitioner did not deposit the rent for the month of July 1990 and instead started depositing rent from August 1990 in advance for two months.

4. An application was moved by respondent No.3 for striking off the defence of the petitioner for non‑compliance of the said order as the rent for the month of July 1990 had not been deposited. This application was contested by the petitioner and a specific plea was raised that he had already paid rent for two months i.e. June and July 1990 to the petitioner in the presence of a shopkeeper before institution of the ejectment petition, therefore, the rent for the said month was not due. This explanation did not find favour with the Rent Controller and through order dated 4‑1‑1993 the petitioner's defence was struck off and the eviction order passed and he was directed to hand over vacant possession of the property to respondent No.3 forthwith. The appeal filed by the petitioner against the said order before the lower appellate Court has been dismissed through order dated 11‑1‑1993.

5. Learned counsel for the petitioner maintained that before passing an order for deposit of monthly rent under section 13 (6) of the Rent Restriction Ordinance, it was incumbent upon the Rent Controller to have first resolved the controversy, if any, between the parties as to from which month the rent was due and thereafter pass tentative order and this requirement of law having not been complied with, the order dated 11‑6‑1990 was void ab initio and its non‑compliance could not have been visited with the penalty of petitioner's defence being struck off. The provisions of law relating to passing of an order for deposit of rent being mandatory, therefore, were to be followed strictly.

6. The argument has force. It is manifest from the order dated 11‑6‑1990 that it was neither stated' on behalf of the respondent before the Rent Controller that the rent for the month of July, 1990 was due and that he had already received rent up to the month of June 1990, nor there is anything mentioned that the petitioner raised the objection that the rent up to the month of July 1990 had already been paid. Learned counsel for respondent No3 submitted that this objection should have been raised by the petitioner when the said order was passed and if he was aggrieved of the same he should have challenged it which having not been done, as such, he was bound to comply with the same.

7. The Rent Controller under the law was bound to resolve the controversy regarding dispute, if any, as to from which month the rent was due. The order dated 11‑6‑1990 being interim, therefore, the petitioner under the law as observed by the Rent Controller could not file any appeal against the same. Law is not meant for trapping the parties in a given case and the provisions of section 13(6) meant to secure payment of monthly rent during the pendency of the ejectment petition to the landlord. Admittedly there was no A plea that the petitioner had committed default, therefore, the Rent Controller should have first by a speaking order given a finding that the rent up to June 1990 had been paid on which the petitioner could have raised objection that instead the rent up to July had already been paid.

8. For the foregoing reasons order dated 11‑6‑1990 was not in accordance with law, therefore, the subsequent orders impugned in this writ petition based on the said order cannot be held to be lawful. The writ petition is accepted. The order dated 4‑1‑1993 passed by the Rent Controller for striking off the defence of the petitioner as also the order dated 11‑1‑1993 passed by the lower appellate Court are hereby declared to have been passed without lawful authority and of no legal effect and quashed. Since I have held that the order dated 11‑6‑1990 passed by the Rent Controller for deposit of rent was not legal and proper, therefore, he shall pass fresh order after hearing the parties regarding the controversy between the parties as observed above. There will be no order as to costs. H.B.T./T‑44/L????????????????????????????????????????????????????????????????????????????????????? Petition accepted.