P L D 1987 Peshawar 148 (PLP)

It shall thus be seen that the Rent Controller had not made any order for deposit of rent in the case in hand. Another order of the Rent Controller dated 5‑5‑1986 again averts to the deposit of rent and it was insisted by the counsel for the respondents herein that there should be a specific order for deposit of rent in the Court. For proper appreciation of the circumstances of the case the relevant portion of this. order is also reproduced below:‑ "The learned counsel for the petitioner insists that there should be a specific order for depositing of rent in this Court. Since the Respondent has been allowed to deposit rent in this Court on his application in case No.37 of 1976 (Misc.) Altaf Amin v. Qazi Tasneem, hence it is felt that there is no need of specific order for depositing of rent today at this stage, because he was already permitted to deposit the rent vide his application . referred to above." The perusal of the aforesaid two orders of the learned Rent Controller dated 12‑7‑1982 and 5‑5‑1986 would show that the matter of deposit of arrears of. rent was brought to his notice but he did not make any order as envisaged by subsection (8) of section 17 of the, Act. On the contrary the order impugned in this appeal would show that the Rent Controller has held the appellant herein defaulter in payment of rent by not depositing within time rent as follows:‑ Rent due for the month. Deposited on (1) October, 1983. 8‑ 1‑1984 (2) November, 1983. 2‑ 2‑1984 (3) June, 1984. 3- 9‑1984 (4) July, 1984. 9‑10‑1984 (5) August. 1984. 31‑10‑1984 (6) August, 1985. . 2‑11‑1985 (7) September, 1985. 2‑12‑1985 (8) October, 1985. 4‑ 1‑1.986

5. From the aforesaid circumstances the position which emerge, is that the application for ejectment was based on the non‑payment of ,rent for the period from 1‑3‑1976 to 30‑11‑1976, that the appellant herein had been depositing rent in the court on the strength of order obtained in his application No.37 of 1976, that the rent for the months for which the. appellant had been held defaulter in the impugned order had also been deposited by him but beyond the stautory date of 5th of the next month, that there was no specific order at any stage of the proceedings in the case in hand for deposit of arrears of rent and the future rent by the appellant till the decision of the application.

6. The perusal of subsection, (8) of section 17 of the Cantonment Rent Restriction Act, 1963 would show that on the first hearing of proceedings under section 17 or as soon thereafter as may be but before the issues are framed it is mandatory for the Controller to direct the tenant to deposit in his office before a specified date all the rent due from the tenant and also to deposit regularly till the A final decision of the case, before 5th day of each month, the monthly rent which subsequently becomes due. It appears that the learned Rent Controller failed to appreciate the purport of this provision of law as there is no order in this case for the deposit in court of rent by the appellant. However, in view of his own application he was depositing rent in court right from 1‑3‑1976. The appellant had been depositing rent for every month regularly in obedience to the order made in his own miscellaneous application but for some months he had deposited the same after the 5th day of the next month. This fact of deposit of rent has been proved from the evidence of the official of the G.P.O. who appeared as a witness in the case before the Rent Controller.

7. Strictly speaking there is no default on the part of the appellant to deposit rent as no order was passed requiring him to deposit the rent as envisaged by subsection (8) of section 17 of the Act by the B Rent Controller in ejectment proceedings pending before him. The minute perusal of the provisions of subsection (8) of section 17 of the Act will show that the order for the deposit of rent has. to be made by the Rent Controller in hearing of proceedings under this section. There would be no default in deposit of rent on the part of the tenant if no such order is made for deposit of rent by the Rent Controller in hearing of proceedings under this section. The deposit of rent by the appellant in the present case was not under any hearing of proceedings under this section, hence it cannot be said that he has committed any default in deposit of rent in the Court. The question of default in deposit of rent would only be material when an order for deposit of, rent is made in proceedings under section 17. of the Act and that order is not complied with. Even otherwise the appellant herein had deposited arrears of rent and rent for every month in pursuance to the order dated 12‑2‑1977 which was made by the learned Rent Controller in his miscellanceous application No.37 of 1976. The circumstance that rent for certain months was deposited beyond the statutory period would not tantamount to default in the case in hand as there was no order made by the C Rent Controller for deposit of rent of each month before the 5th of the next month in proceedings of the case. For the aforesaid reasons I will hold that the appellant herein had not committed any default in payment of rent of the suit shop and would set aside the finding of the learned Rent Controller on issue No.1 and would decide this issue against the respondents herein.

8. Another objection was raised by the learned counsel for the appellant herein that Amin Jan predecessor of the appellant, who was original tenant of the suit shop, had died and the ejectment proceedings initiated by the respondents against him were defective and that his legal representatives should have been brought on record. However, all along the present appellant herein has been defending the application on behalf of the original tenant. The application for deposit of rent was also made by him alone and not by the other legal representatives. The fact that appellant alone has been defending the application for ejectment, it is not expedient to accede to this objection which is overruled.

9. As a result of my findings on issue No.1, I will accept this appeal, set aside the impugned order dated 29‑9‑1986 of the learned Rent Controller, Peshawar Cantonment arid would dismiss the application of the respondents for ejectment of the appellant from the suit shop. There shall however be no order as to costs. K.B.A./535/P Appeal accepted.