1979 PLP 159 (CLC)

4. On the other hand, the learned counsel for the respondents maintained that since the appellants had admittedly failed to comply with the direction of the learned Rent Controller regarding the deposit of rent, the learned Rent Controller had no option but to strick off their defence without taking any further proceedings in the case. He cited Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530), to advance his plea. As for the final determination of the amount of rent payable by the appellants to the respondents, learned counsel for the respondents urged that such determina tion could be done by the learned Rent Controller even after the passing of the order of ejectment. In support of this proposition, he relied on Syed Akhlaque Husain v. Habib Ismail Bajwa, Advocate (1974 S C M K 504).

5. Subsection (6) of section 13 of the Ordinance which is required to be interpreted for the purpose of the disposal of this case reads thus:- "In proceeding 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 fifteenth day of each month the monthly rent due from him. 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 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 in possession of the property without taking any further proceedings in the case." The provisions relating to the final determination of the amount of rent due from the tenant were not there in the Ordinance as originally enacted but were added subsequently be means of an amending Ordinance, namely, the West Pakistan Urban Rent Restriction (Amendment) Ordinance, 1965. While making this addition, however, the Legislature did not introduce any amend ment so as to make it obligatory for the Rent Controller to record a final decision in regard to the amount of rent due from tenant before striking off his defence. It, therefore, seems that the above amendment was aimed at requiring the Rent Controller to determine the amount of rent due to the landlord and order its payment to him and it was not the intention of the Legislature to make the final determination of rent payable to the landlord as a condition precedent to the passing of an order of ejectment against the, tenant by striking off his defence. In view of the existing language of sub-section (6), therefore, if a tenant does not deposit rent in pursuance of the direction. of the Rent Controller, he can strike off` his defence without finally determining the amount of rent payable to the landlord.

6. The provisions of subsection (8) of section 13 of the Ordinance, which are reproduced below, are also helpful in resolving the controversy involved in the present case :-- "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 bare reading of these provisions would show that the amount of rent; deposited with the Rent Controller in compliance of his direction under subsection (6) of section 13 of the Ordinance can be paid to the landlord. "at the conclusion of the proceedings" for the ejectment of the tenant. This payment of rent, if made, shall, however, be "subject to the final determination of rent as payable to the tenant". Thus, it is clearly contemplated by the said provisions of the Ordinance that the rent due from the tenant can be finally determined after the disposal of an ejectment application In other words, according to subsection (8), it is not necessary for a Rent Controller to finally determine the rent payable by the tenant before' striking off his defence and ordering him to vacate the disputed property.

7. As for the case of Ibrahim cited by the learned counsel for the appellants, the main point decided in that case was that an order passed under the first part of subsection (6) of section 13 of the Ordinance is of a provisional nature and is, therefore, not appealable. The dictum in the said case, which has been relied upon by the learned counsel for the appellants is as follows "This brings into bold relief the provisional character of the order made under the first part of section 13(6) which in the event of default need not necessarily result in the striking off the defence and order of ejectment. The possibility cannot be entirely excluded that the Rent Controller, upon the final determination under the second part of the clause, comes to the conclusion that the tenant was never in default. The provisional fixation of current rent and the amount of arrears, under the first part of the clause remains provisional and until it is followed by final determination or the culmination of the other contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession, the order would not be appealable under section 15(1) or else a provisional fixation of current rent or past arrears would per se be equated with the default and striking off the defence within the meaning of section 15(1) of the Ordinance, for which so far as can be. seen, there is no warrant in law." The precise question under examination in the present case is whether the Rent Controller can strike off the defence of the tenant without finally determining the rent payable by him to the landlord. This question was not raised in the case of Ibrahim. It was, however, to some extent involved in the case of Syed Akhlaque Husain relied upon by the learned counsel for the respondents, The observations made in the case of Syed Akhlaque Husain from which I will be seeking guidance read thus :- "It is evident that the order provisionally fixing the rent in the event of a dispute about the rate and its deposit is an interim or interlocutory order. Under the second part of the section, the statutory duty is cast on the Rent Controller to finally determine the rent, and until this act is performed, the proceeding does not legally conclude. This is really what this Court said in Abdul Ghafoor v. Ahmad Kunhi. We are, therefore, unable to accept the contention advanced on behalf of the respondent that the Legislature regarded the passing of the order of eviction as the last or ultimate act of the Rent Controller which put an end to the proceeding for eviction under section 13 of the Ordinance and the Rent Controller thereafter was precluded from finally determining the rent as required under the said Ordi nances. It is of course true that for the purpose of finally, determining :he rent it is necessary to issue notices to the parties concerned and to arrive at a decision after evidence has been led on the point and after the parties have been given an opportunity to be heard. It may be mentioned here that the learned Judges of the High Court while disposing of the letters patent appeal held that the final determination of rent had to follow immediately after striking off the defence of the defaulter while the Controller had not lost seisin in the matter. The learned Judges were right when they said that it was the duty of the Rent Controller to finally determine the rent. They were, however, not correct when they said that the passing of the order of eviction by the Rent Controller had the effect of making the Rent Controller functus officio so that he could not thereafter finally determine the rent." In these observations while holding that the Rent Controller could make final determination of the amount of rent payable to the landlord even after ordering ejectment of the tenant from the disputed property it was impliedly ruled by their Lordships this the stage at which the Rent Controller is to decide an application for eviction of the tenant is not the only stage when the final determination of the rent is to be made. The opinion expressed in the case of Syed Akhlaque Husain was not reviewed by their Lordships of the Supreme Court while deciding the case of Ibrahim. Therefore, I would, with great respect, follow the ratio dicidendi of the case of Syed Akhlaque Husain and hold that it is not necessary for the Rent Controller to finally determine the amount of rent payable to the landlord before ordering his eviction by striking off his defence,

8. The view taken by me is also supported by the phrase "without taking any further proceedings in the case" occurring in subsection (6) of section 13 of the Ordinance. While spelling out the import of the said phrase in Muhammad Saeed v. Syed Niaz Ali Shah (1972 S,C M R 30) it was ruled by the Supreme Court that when a tenant fails to comply with the direction of the Rent Controller regarding deposit of rent, the Rent Controller has "no alternative but to direct that the tenant shall put the landlord in possession of the disputed property". Similar view was expressed in the case of Ghulam Muhammad Khan Lundkbor, cited by the learned counsel for the respondents. Now, if after an obvious default of the tenant in complying with the direction of the Rent Controller he, instead of immediately striking off his defence and ordering his eviction, proceeds to work out the amount of rent payable to the landlord, he will be taking further proceedings in the case in disregard of the letter and spirit of the above-quoted phrase and the law laid down by the Supreme Court in the cases of Muhammad Saeed and Ghulam Muhammad Khan Lundkhor.

9. For all these reasons, I hold that the order of the learned Rent Controller whereby he struck off the defence of the appellants and ordered their ejectment cannot be set aside on the ground that before making that (1) order he bad not finally determined the rent payable to the respondents. The appeal, therefore, fails and is dismissed with costs. The appellants are, however, allowed a period of two months to vacate the premises in dispute. Appeal dismissed.