P L D 1969 Supreme Court 424 (PLP)

ABDUS SAWAR, J.‑These two appeals by special leave, at the instance of the tenant, arise out of two proceedings instituted by the respondent in the Court of the Rent Controller under section 13 of the West Pakistan Urban Rent Restriction Ordi nance (hereinafter called the Ordinance), for ejectment of the tenant from two fiats of the building situated on Plot No. 211‑LY‑14, Yousaf Haroon Road, Baghdadi, Karachi. On the 3rd August. 1964, the respondent filed, under section 13 of the Ordinance, two applications against the appellant on the ground, inter alia, that he was a defaulter in payment of rent. It was asserted that the monthly rent for each of the tenements was Rs.

12. The tenant, in his objections, alleged that the rate of rent was Rs. 9.79. On the 28th September 1964, the learned Rent Controller, passed an order under section 13(6) of the Ordinance directing the appellant to deposit the arrears of rent before the 5th October 1964 and to deposit future monthly rent at the rate of Rs. 9.79 before the 5th of each month till the decision of the cases. The appellant complied with the order by depositing arrears of rent and continued to deposit the monthly rent on due dates. The learned Rent Controller, after recording evidence, by his consolidated, order dated the 24th April 1965, dismissed the applications of the respondent for ejectment of the appellant. He, however, found the monthly rent for each tenement to be Rs.

12. It may be noted that no complaint was made before the Rent Controller that his order under section 1.3(6) was not complied with. The respondent filed appeals against the orders of dismissal. During the pendency of the appeals applications under section 15 (2) read with section 13(6) of the Ordinance were filed for striking off the defence of the appellant on the ground of the appellant's failure to deposit rent at Rs. 12 p.m. The appellate authority, on the 17th August 1966, ordered ejectment of the tenant from the tenements. The relevant portion of the order reads as follows:- "Mr. Abdul Hamid, the learned counsel appearing for the appellant,‑has produced the report of the Nazir to show that in respect of the two tenements the respondent deposited Rs. 19.38 on 2‑2‑65 but he has made no payment for February 1165 in March 1965. He has further deposited Rs. 19.38 on 5‑4‑65, Rs. 137.06 on 18‑10‑65, Rs. '78.32 on 8‑2‑66 and Rs.‑39.16 on 28‑4‑

66. Mr. Muhammad Yousuf; the learned. counsel appearing for the respondent, is not able to produce receipts to show that the respondent has deposited the current rent regularly at the rate of Rs. 12 per month, as ordered by the Rent Controller and as such he has committed so many defaults. He is, therefore, not entitled to any clemency to remain in the tenement. I, therefore, order ejectment of the respondent from the two tenements in his possession and direct him to hand over possession thereof to the landlord within two weeks from the date of this order." The appellant filed second appeals against the said order but they were summarily dismissed by a learned Single Judge of the High Court. Special leave to appeal was granted in this case to consider whether the application of the provisions of section 13.(6) of the Ordinance is confined to a proceedings before the Rent Controller. The only question that' falls for determination in this case is whether the order passed by the Appellate Authority directing ejectment is sustainable in law. It is an admitted fact that no complaint about any default in carrying out the order of the Rent Controller under section' 13 (6) of the Ordinance was made up to the time the proceedings remained pending‑before him. The Rent Controller dismissed the applications for eject ment on the 24th April 1965. The appeals ‑before the Appellate Authority were filed on the 8th May 19‑

65. The. Appellate Authority found, inter alia, that the appellant had failed to deposit 'the current rent at the rate fixed by the Rent Controller. The question whether the order for depositing of rent made under section 13 (6) continues to remain operative after the final determination of the proceedings by the Controller so as to enable the Appellate Authority to pass order under that section has been the subject‑matter of decisions in a number of cases in the High Court. It appears that there is a wide divergence of opinion on this question. The relevant portions of section 13 read as follows:‑ "13 (1).‑‑A tenant in .possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this . Ordinance, or otherwise, and whether before or after the termination of the tenancy; except in accordance with the provisions' of this section. (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 fifth day of each month the monthly rent due from him. 1f there is any dispute about the amount of rent due of the rate of rent, the Controller shall determine such amount approxi mately and direct that the same be deposited by the tenant be fore a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his 'application shall be dismissed summarily and if he is the respondent his defence shall be struck‑off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant. (8) The rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller:" Subsection (6) of section 13 has two parts. Under the first part the Controller i to direct the tenant to deposit all the rents due from him and also to deposit regularly "till the final decision of the case before the 5th of each month the monthly rent due frond, him. This part also provides that if there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same, be deposited by the tenant before a sate fixed for the purpose It then says that if the tenant makes default in the compliance of such an order then if he is the petitioner, his application shall be dismissed summarily and if be is the respondent, his, defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The second part lays down that the Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord subject to adjustment of the approximate amount deposited by the tenant. Subsection (8) says, that the rent deposited by the tenant under this section shall subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller. A close scrutiny of the above provisions clearly indicates that an order passed under section 13(6) of the Ordinance remains effective only up to the time of the final determination of the pro ceedings before the Controller. It will be seen that under the first part of subsection (6) of section 13, the Rent Controller while directing deposit of~ arrears and the monthly rent fixes the amounts in regard to both tentatively if there is a dispute. Under the second part which $ may either be at the stage when the default is committed and the question of striking off the defence arises or when the proceedings are disposed of he is finally to determine the amount of rent due. In doing so he not only determines the period for which rent is due but also the rate at which the rent is payable. He is then to direct that the amount so determined be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. It is, therefore, evident that the order passed I under the first part merges in the order passed under the second part. In this view it cannot be said that the former remains effective ever after the latter order is passed. Subsection (8) provides that at the conclusion of the proceed ings at such earlier date as may be specified by the Controller, the rent deposited by the tenant shall subject to the final determi nation of rent as payable by the tenant be paid to the landlord. I am unable to see how in view of the above provisions it can be argued that an order passed under section 13(6) remains operative even if the ejectment proceedings started by the landlord are dismissed after final hearing by the Rent Controller. The learned counsel for the‑respondent has argued that‑ the words "till the final decision of the case" include proceedings before the first appellate Authority and even before the High Court in second appeal. Reliance in this connection has been placed on the decision of a learned Single Judge of the High Court of West Pakistan in the case of B. Lobo v. Sh. Muhammad Zakir (P L D 1967 Lah. 194). In this case it was observed:‑‑ "The default in the present case was: made during the time when the appeal under section 15 was pending before the learned appellate Authority. It requires no gainsaying that an appeal is not a fresh application but is only a continuation of the original proceedings and is, in fact, a stage in the application itself. This view finds support from a number of decided cases including Flour Mills employees Union v. Karachi Steam Roller Flour Mills Co. Ltd. The result would, therefore, the that a petition under section 13 cannot be said to have been finally decided until either the time prescribed for filing an appeal under section 15 of the Ordinance has expired or in case such appeals are filed they have been disposed of. Since section 13 (6) requires that the direction to deposit future rent shall be ‑effective till the final decision of the case, therefore, if the rent due is not deposited by the 5th of each month till the appeals are disposed of the tenant shall be considered to be in default within the meaning of subsection (6) and shall be liable to the penal consequences mentioned therein." I am unable, with due respect to the learned Judge, to agree with the above view. The order contemplated, by the first part of section 13 (6)1 is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made. It is worthy of note that the penalties provided under subsection (6) of section 13 for non‑compliance of an order passed thereunder. are that if the tenant is the C petitioner his application is dismissed and if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further, proceedings in the case. Such an order in my view can only he passed by the original Court in any event such an order does‑not remain effective after the final determination of the proceedings before the Controller. Some arguments were advanced by the learned counsel for the respondent as to whether the Appellate Authority can pass a fresh order under section 13 (6) of the Ordinance in an appeal. As no such order was passed in the present case and the direction for ejectment was not given for non‑compliance with such an order it is not necessary for me to go into this question in this case. I would, therefore, allow the appeals with costs and set aside the judgments and orders of the High Court and that of the Appellate Authority. The cases will now go back to the Appellate Authority‑ for disposal on merit, the appeals preferred by the respondent against the decisions of the Rent Controller in the ejectment proceedings. HAMOODUR RAHMAN, C. J.‑‑‑I agree. S. Q. Appeals allowed.