P L D 1969 Karachi 82 (PLP)

A. S. FARUQUI, J.‑This is a Letters Patent Appeal against a judgment of a learned judge passed in Second Appeal No. 170 of 1963 setting aside the judgment passed by the two Courts below. The material facts are these. The appellant was in occupation of a godown or godowns consisting of 10 rooms in a property which was transferred to the respondent by a Provisional Transfer Order dated the 6th May 1960. A demand for rent having been made by registered notice and not complied with an application was filed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance demanding the ejectment of the tenant‑respondent and claiming that the appellant was entitled to get rent at the rate of Rs. 180 per month which was the municipal assessment at the time of Partition of the country. Later on, an application was made that if this rent is not found to be correct, the Court may fig the fair rent. During the trial a certificate from the Municipality was produced showing that the latest Municipal assessment was Rs. 100 per month.

2. In the proceedings before the Controller an order was passed by him under section 13(6) on the 22nd May 1961, for the deposit of all arrears from 6th May 1960 to 31st May 1961, on 4th May 1961 (evidently there is a mistake of typing or writing with regard to the month) and to continue to deposit till the disposal of the matter. On 23rd November 1961, the landlord made an application to the Court asking for the striking out of the defence of the tenant respondent because he had not deposited the rent for the months of June, July, August, September and October 1961, which he should have deposited every month. An application had before this been filed by the tenant on the 1st of November 1961, seeking permission to deposit the rent and asking for condonation of delay on the ground that he had been ill and was on that ground not able to deposit the current rent. The arrears had been deposited and there is no dispute about that. Upon that application the learned Controller on the same day allowed the tenant to deposit rent. Then with regard to the landlord's application for the striking out of the defence, the Controller passed the following order on 16th December 1961 "Since the opponent has paid up all the arrears till 30th November 1961, file." The matter rested there and no appeal was filed by the landlord against this order which he was entitled to do under section 15(4) of the Ordinance. The case was then tried on merits and the final order was passed on 14th February 1962, dismissing the landlord's application for eviction of the tenant and fixing the rent at Rs. 100 per month. This order was maintained in appeal by the learned District Judge. In second appeal the learned Single Judge who heard it came to the conclusion that the assessment of Rs. 100 p. m. by the Municipality had been manoeuvred because if the premises had been assessed at Rs. 180 p. m. at the time of Partition, there would be no justification for the reduction of that rent 13 years afterwards. Upon that conclusion he fixed the rent at Rs. 180 p. m. and directed the payment on that rate. On the question of eviction he took the view that as there had been default in payment of the current rent, as stated above, the Controller should have struck off the defence of the tenant and should have directed the landlord to be put into possession, and he ordered accordingly.

3. In this appeal before us Mr. M. M. Pirzada for the appellant has only contested these two findings of the learned Single Judge. We have heard Mr. Jafri for the respondent at some length and his contention was that in so far as the appeal was a continuation of the original proceedings, the learned Single Judge did have jurisdiction to pass an order striking off the defence and not to go into the merits of the case with regard to the final order passed by the Courts below. It was further attempted to be urged before us that the order of 16th December 1961, condoning the default of the tenant was an order which had been passed without notice to the landlord. We do not think that in this L. P. A. we can rightly permit the appellant to raise this point for the first time. This point was not raised in the memo. of appeal filed before the District Judge nor was it pressed before the learned Single Judge. Coming to the merits of the question whether the order striking out of the defence passed by the learned Single Judge should be maintained, we would like respectfully to observe that the default of the tenant was condoned by the order of the Controller as far as 16th December 1961. This was an appealable order. No appeal was filed against it. Instead, the landlord preferred to contest the matter on merits. It is true that adverse orders under the Civil Procedure Code, which are of interlocutory nature, can still be questioned in an appeal which may be passed against the decree. We are however of the opinion that this order under section 13(6) would have concluded the proceedings because subsection (6) of section 13 provides that the defence, in the circumstances narrated in that section, shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. So it would appear that the order of the Controller refusing to strike out the defence was a final order in so far its impact on the proceedings was concerned. The landlord did not challenge it by an appeal. Having thus acquiesced in the continuation of the proceedings which culminated into a final order, we do not think he should be permitted to raise this. question in a second appeal which was against the final order. There is support for this view from a Division Bench judgment of this Court at Lahore in the case of Tajuddin Ahmed v. Muhammad Abdul Shakoor (P L D 1962 Lah. 175) but there is another aspect of the matter and which, according to us, is more important. The learned Controller had, for reasons indicated in the order, condoned the delay. The ground upon which the condonation was sought by the tenant was that he was ill and was thus prevented from depositing the current rent in time. It is now well settled by a recent judgment of the Supreme Court that though the provisions of section 13(6) with regard to the striking out of the defence are mandatory, yet if the tenant is prevented by superior force from depositing rent, the Controller has the power to condone the delay. Therefore, the question whether the tenant in this case was prevented by superior cause from depositing the rent would have to be looked into if his application in that regard was to be rejected. That investigation could have taken place in the Court of the Controller if the landlord had properly contested the matter. That was not done. Could we then sitting in appeal go into the question whether the cause stated was made out or not ? We think we cannot do so. The proper way of doing it was either by challenging the statement made by the tenant and showing that even if he were ill he had other means by which he could have deposited the rent or filing an appeal against the order which was permissible under section 15(4). In these circumstances, we, with profound respect of the learned Single Judge, hold that the defence should not have been struck off in the second appeal. The order for the eviction of the tenant cannot, therefore, be maintained.

4. With regard to the second question as to the quantum of rent, we are, if we may say so, in respectful agreement with the learned Single Judge that it appeared to be somewhat extraordinary that the rent in 1947, according to the municipal assessment, was found excessive so as to justify its reduction in 1961. We do not, however, think that we can help the landlord in this respect. Under section 30 of the Displaced Persons Act the liability of the protected tenant is to pay rent c only according to the latest assessment. It was not disputed before us by Mr. Jafri that Rs. 100 was the latest assessment, though he also contended that this amount had not been rightly fixed. We are, therefore, of the opinion that the Civil Court had no jurisdiction to fix an amount higher than the latest. assessment in cases governed by section 30 of the Displaced Persons Act. We would, however, like to add that it is open to the landlord to move the proper authorities either by an appeal or otherwise for the re‑consideration of this assessment.

5. Mr. M. M. Pirzada pointed out that rent had been depo sited at the rate of Rs. 180 and we should order that it should be refunded. We are not inclined to make this order because we cannot anticipate the result of the proceedings which may take place in respect of the re‑assessment of the rent.

6. For the reasons given this appeal is allowed. However, having regard to the circumstances of the case there will be no order as to costs. A. V. Appeal allowed.