P L D 1966 (W (PLP)

Date of hearing : 22nd February 1966. This is an appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the order dated 9th September 1963 of Mr. Saad Saood Jan, District Judge, Rahimyar Khan acting as the appellate authority under the said section, who in his turn had upheld the order of the Rent Controller, Khanpur dated 20th October 1962, whereby he had struck off the defence of the respondent and directed that the possession of the shop in question should be delivered to the applicants.

2. The applicants before the Rent Controller had purchased the shop in question bearing No. 231/C situated in the city of Khan pur at an auction held by the Deputy Settlement Commissioner on 6th March 1960 for a sum of Rs. 31,

600. According to their application they had sent a notice to the occupant, who is now the appellant before me on 22nd June 1961 demanding rent from him at the rate of Rs. 158 per month. On the failure of the occupant to 'pay that rent the purchasers moved an application in the Court of the Rent Controller on 7th April 1962 for fixation of fair rent of the said shop and also for the ejectment of the occupant. The occupant filed a written statement in which three preliminary objections were taken; firstly, that the Rent Controller had no power to hear that application; secondly, that it had not been shown as to under what provision the fixation of rent was being prayed and so the application could not be entertained; and thirdly, that the respondent was an old tenant and his rights as tenant had been determined by the Custodian and he was not liable to pay the applicants anything more than Rs. 12 per month. ‑ On merits it was stated that he had always been willing to pay rent at the‑ rate at which he had been paying to the Government (Custodian) but the applicants had been asking for Rs. 158 per month.

3. On 18‑6‑62 the learned Rent Controller framed the following issues (1) Whether the application is competent? (2) Whether this Court had `no jurisdiction to try this application? (3) What is the fair rent of the shop? The case was then fixed for evidence on 14‑7‑

62. On that day the case was adjourned to 30th July 1962 and it was on this date that the Controller made an order for deposit of the arrears of rent from 6‑3‑60 to 17‑9‑62 at the rate of Rs. 12 by 17‑9‑1962 and future rent on the 5th of every month at the same rate. The case then came up before the Controller on 18‑9‑1962 for which date it had been fixed and the Naib Nazir made a report that the arrears of rent had not been deposited in Court. However, the counsel appearing for the tenant made a statement at the Bar that the arrears of rent had, in fact, been deposited. The Controller then called upon the counsel to produce proof in support of big assertion. On the following day, the tenant himself made an application stating that he had not been able to deposit rent because of a theft in his house and he should be permitted to deposit rent. A notice of this application was given to the applicant‑landlords and the tenant was allowed to deposit rent but this was expressly subject to just exceptions. The deposit was then actually made on 13th October 1962 and was accepted in the terms of the order. The applicant‑landlords replied to the application of the tenant and they also added a prayer that he had committed a default of the order of 30th July 1962 and his defence should be struck off and the applicants should be put into possession. The learned Rent Controller after bearing the parties passed an order on 20th October 1962 striking off the defence of the respondent‑tenant and ordering his eviction. The tenant's appeal to the District Judge having failed he has now come up in second appeal.

4. Mr. D. M. Awan for the appellant has urged the following three points before me Firstly, that the order under section 13 (6) for the deposit of rent could not validly be made after the issues had been framed. Secondly, that since the Controller had framed an issue on the point of jurisdiction it should have been first decided before the order for deposit of rent was made. Thirdly, that in the application there were two reliefs sought, one for fixation of fair rent and the other for ejectment and in such an application an order for deposit of rent under subsection (6) of section 13 could not be made.

5. With regard to the first contention the learned Controller has said in his order that when on 18‑6‑62 he framed the three issues which have been reproduced above he was under the impression that the application was merely for fixation of fair rent. This statement is borne out by the fact that amongst the three issues framed there was no question involved as regards the default. He has further stated that it was on 30th July 1962 when the case came up before him for hearing that he realised that he had omitted to take note of the prayer for ejectment and upon such realisation he passed an order for deposit of rent at Rs. 12 p.m. which is what the tenant had asserted that he was liable to pay. The terms of this order has been earlier stated in this judgment.

6. Section 13 (6) in so far as it is material for the argument raised may be conveniently reproduced: ‑ "(6) in proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller, shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him." The contention of Mr. Awan was that considering that the failure to make a deposit involves the penalty of the defence of the tenant being struck off this provision must be strictly construed and since it provides that the direction to tenant to deposit rent is to be made before issues are framed it must follow that once issues are framed the Controller has no power to direct the making of a deposit. I agree that this provision has to be strictly construed. But does this provision mean what the learned counsel contends? This provision is essentially designed to protect the interest of the landlord with regard to the arrears and current rent during the pendency of the proceedings. The provision merely emphasises that this order for deposit of rent shall be made at the earliest opportunity, that is before the issues are framed. The intention was not to leave it to the discretion of the Controller to defer the making of the order for deposit upon some plea by the tenant. The emphasis in the subsection is that the arrears and current rent must be ordered to be deposited and this order must be made either on the first date of hearing or as soon as possible after that date before issues are framed. Normally, the controller is required to make the order of the deposit on the very first day of the hearing, but if that is not possible be cannot of his own will or at the instance of the tenant postpone the making of the order indefinitely. It is for this reason that a point of time been fixed so as to have a compelling force upon the Controller in order that the main object of this provision may not be defeated or frustrated. When the Controller fails to make an order for deposit before the framing of the issues he is violating the mandatory requirement" of the provision. But I am unable to see any bar on the Controller to rectify his mistake and make an order for deposit even after the issues are framed. The failure to make such an order before the time fixed for it is a matter of which the landlord would be aggrieved. The tenant by no means suffers if the order of deposit is delayed. If anything he would be able to put off the making of such a deposit. I am, therefore, of the opinion that the limit of time fixed in the subsection is for the benefit of the landlord so as to compel the tenant to, make the deposit as early as possible in the proceedings but if by any mistake such an order is not made before the issues are framed the Controller certainly has jurisdiction to make such an order when he does discover his mistake. When I say this I would make it clear that in a proper case it would be open to the Controller not to make an order for deposit and determine an issue upon a matter, the existence of which is necessary before he gets jurisdiction under this provision. For instance, if it is alleged that there is no, relationship of landlord and tenant or that certain facts exist which exclude the jurisdiction of the Controller to make an order under this subsection and such an objection is not frivolous or without any plausible basis, it would be within the power of the Controller, if not an obligation on him, to try that question first and defer the making of an order for deposit. But having, determined the question of jurisdiction and upon a finding in favour of the landlord he would still have jurisdiction to make an order or deposit notwithstanding the fact that he has first tried the issue of jurisdiction. Can it be reasonably contended that when an objection to jurisdiction is taken and that objection is based upon plausible grounds and the Controller proceeds to decide that issue, he will then be precluded from making an order for deposit if he finds that he has jurisdiction? The answer must be in the negative. This aspect further strengthens my conclusion that the order for deposit can be made even after the framing of an issue or issues.

7. There is another aspect of the matter. In the present case, no issue on the question of default or the liability of the tenant to pay rent had been framed. The framing of that issue was deferred by the Controller when he realised that he had to make an order for deposit. Therefore, that order for deposit would still be an order before the framing of the material issues in relation to default in payment of rent. Therefore, on both the grounds I repel the first contention raised by the learned counsel.

8. With regard to the second contention that a question of jurisdiction had been raised and an issue on that point 'had been framed and the Controller must have decided that issue before making an order for deposit, the short answer is that the objection to jurisdiction raised in the written petition was without any basis. All that was said was that the Controller had no jurisdiction. Why he did not have jurisdiction was not even remotely indicated. Indeed, it was the case of the tenant in the written statement that he had always been willing to pay rent at the rate of Rs. 12 and had in fact offered that amount to the landlord but he had wanted fancy rent of his own choice. D Therefore, the liability to pay was admitted. The dispute was only as to the amount. An admission of such a liability necessarily involves an admission of the existence of the relationship of land lord and tenant. That being so, the Controller was perfectly right in making an order for deposit even before embarking upon the question of jurisdiction which was raised frivolously and without any basis. The second point thus is devoid of any force.

9. With regard to the third contention that since the two reliefs of fixation of rent and ejectment had been joined together the Controller should have determined the amount of fair rent and was not competent to make an order of deposit, is also without any force. Section 13 (6) empowers the Controller to make an order for deposit of rent at an approximate or tentative rate. As to what would be the exact rate would fall for determination after the order for deposit at the tentative rate has been complied with and the exact rate is determined by the Controller in the inquiry which would follow. There was, thus nothing wrong in the two prayers being joined in the same application and this by no means ousted the jurisdiction of the Controller to make an order for deposit.

10. It was lastly urged by Mr. Awan that the failure on the part of the tenant to deposit the arrears and the rent for August 1963 was not wilful. He had been unable to do so because of a burglary which was committed in his house and that since the deposit was made not long after the limit of time had expired the Controller should not have ordered the striking off the defence. Even assuming that a burglary had been committed in the house of the tenant, he would still have to make the deposit in terms of the order. Poverty or lack of funds are not circumstances upon which a plea of absence of wilful default can be effectively urged. Such a plea can only be successfully raised if the tenant was prevented by superior force or by events over which F he had no control. Lack of funds or being devoid of funds) certainly cannot be one of these grounds. It may be noted that the premises in question are business premises which the tenant is occupying. If he did not take care to make a deposit even at a very modest rate of Rs. 12 per month as against Rs. 158 per month which was being claimed by the landlord who had bought the property for a sum of Rs. 31,600, the tenant has to thank himself for the position in which he finds himself on account of his failure to comply with the orders of the Court.

11. No other point was urged and for the reasons given I dismiss the appeal with costs. K. M. A. Appeal dismissed.