P L D 1962 (W (PLP)

MUHAMMAD YAQUB ALI, J.‑Briefly the facts giving rise to this appeal are as under:‑ Dr. Muhammad Abdul Shakoor respondent is the owner of a house situated in Samnabad, Lahore. About ten years ago, he leased it to Malik Taj‑ud‑Din appellant by an oral agreement at a monthly rent of Rs.

100. In 1956, the respondent moved an application under section 13 of the Rent Restriction Ordinance (XIX of 1956) in the Court of Mr. Obaidullah Khan, Rent Controller, for ejectment of the appellant, inter alia, on the ground that the appellant had failed to tender or pay the monthly rent for a considerable time. On. the 3rd of January 1957, the Rent Controller directed the appellant to deposit Rs. 800 as arrears of rent and thereafter to deposit the monthly rent before the 5th day of each month. Both the directions were complied with, but on the 4th of April 1957, before the application for ejectment could be disposed of, the Ordinance XIX of 1956, lapsed and in consequence of it, the petition was consigned to Record Room sine die. After that, the appellant did not deposit monthly rent, obviously for the reason that the Court of the Rent Controller had ceased to exist.

2. In 1957 the President of Pakistan promulgated Rent Restriction Act (IX of 1957) which, inter alia, provided that applications and proceedings which had terminated on account of lapse of the aforementioned Ordinance may be restored on an application being made in that behalf within the prescribed period. In accordance with it, the respondent moved a petition under section 22 for revival of his original application, but before the matter could be disposed of, Act IX of 1957 itself lapsed on the 24th of February 1958, as it was not placed before the Provincial Assembly which had been reconvened in the meantime. The proceedings for revival of the original petition of the respondent were, accordingly struck off.

3. On 27th February, 1959 the Governor of West Pakistan promulgated West Pakistan Urban Rent Restriction Ordinance (VI of 1959) which contained a similar provi sion for revival of the applications and proceedings which had been consigned to Record Room on account of the lapse of Act IX of 1957. In accordance with it, the respondent moved a petition for revival of his original appli cation for ejectment of the appellant, but the petition was returned for incorporating in it further particulars of the case. Instead of re‑filing that petition, the respondent presented a fresh application under section 13 (2) of the Ordinance (VI of 1959) for ejectment of the appellant on the ground that he needed the house for his personal use and that the appellant had made default in payment of rent since 1956. At the first hearing in this petition, on the 26th of May, 1959 the learned Rent Controller directed the appellant under section 13 (6) of the Ordinance to deposit Rs. 3,500 as arrears of rent by the 19th of June 1959 and to continue to deposit monthly rent before the 5th day of each month. The sum of Rs. 800 already deposited by the appellant on account of arrears of rent under the orders of Mr. Obaidullah Khan in the first ejectment application was not taken into account, but the appellant rightly deducted this sum from the amount named in the order of the Rent Controller and deposited the balance of Rs. 2,700 by the 19th of June 1959. Since then he has been depositing monthly rent, but on two occasions it was after the 5th day of the ensuing month. No notice of it was, however, taken and the application for ejectment proceeded to trial on merits. It was dismissed on the 30th of September 1960, on the finding that it was not proved that the respondent needed the house for his personal use and that the appellant had all along tendered monthly rent to the respondent by money order remittances which he refused to receive.

4. On appeal by the respondent, Mr. Abdul Hamid, District Judge, Lahore, found that the case was covered by a Single Bench decision of this Court in Bakhshi Mahmood Ali v. Aurangzeb (P L D 1960 Lah. 1210) and in accordance with it struck off the appellant's defence for non‑deposit of monthly rent in accordance with the order of Mr. Obaidullah Khan, Rent Controller, after the cessation of his Court. The decision of case, by our learned brother Nazeer Ahmad Mahmood proceeds on the view that an order of a Rent Controller under section 13 (6) of the Rent Restriction Act IX of 1957, which corresponds to the provisions of the present Ordinance, operates as a decree of a Civil Court and, therefore, the cessation of the Controller's Court does not put an end to the liability of the tenant to deposit monthly rent before the 5th day of each month. Reliance was placed in this behalf on the terms of section 17 of the Rent Restriction Act IX of 1957 which reads as follows: ‑ " Every order made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."

5. Aggrieved by the order of the learned District Judge the appellant preferred a second appeal which was placed before the learned Judge who had decided the aforementioned case and dismissed it in limine. A certificate was, however, granted under clause 10 of the Letters Patent for filing of the present appeal.

6. The questions which call for determination in the case are: ‑ (i) Whether the order of Mr. Obaidullah Khan, dated the 8th of January 1957, requiring the appellant to deposit monthly rent before the 5th day of each month remained operative in spite of the lapse of Ordinance x1X of 1956 and the consequent cessation of his Court ? (ii) Can the defence of a respondent in an application for ejectment be struck off in an appeal by the landlord on account of the former's failure to comply with the directions of the Rent Controller under section 13 (6) when no such action was taken in the trial Court and the case proceeded to trial on merits 7 (iii) Whether there has been a default on the part of the appellant in paying or tendering monthly rent to the respondent, and if so, with what effect ?

7. The decision of our learned brother Nazeer Ahmad Mahmood is based on section 17 of Act IX of 1957 which lays down that an order passed under section 13 of the Act shall operate as a decree of the Civil Court, but on the face of it this provision is applicable to only final orders and not to inter locutory directions issued under section 13 (6) of the Act. In fact, section 13 itself provides the manner in which the amount deposited by the tenant under subsection (6) is to be disposed of at the conclusion of the application for ejectment. Subsection (8) of section 13 reads as follows: ‑ " 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 pro ceeding or on such earlier date as may be specified by the Controller." Section 17 has, therefore, no application to an order made under subsection (6) of section

13. While there is no doubt that other orders made under section 13 of the Act such as for ejectment of a tenant take effect as a decree of a Civil Court an interim order under subsection (6) exhausts itself on the passing of the final order in the case. Act IX of 1957 with which our brother dealt in Bakhshi Mahmood Ali's case lapsed by efflux of time. Its legal effect is as if it was never on the statute A Book of the country and no order made under it which had not already exhausted itself remained in operation. Another necessary corolary is that the Courts of Rent Controller under Act IX of 1957 ceased to exist in law. Orders made by such non‑existent Courts could not have the effect to control future jural relations of the parties. If a subsequent default is made the Court of Mr. Obaidullah Khan became functus officio, after the termination of the proceedings in the application for ejectment of the petitioner. It had, therefore, no jurisdiction to control the future jural relations between the parties. Subsequent default in payment of rent it may furnish the landlord with a new cause of action to sue for ejectment of his tenant, but an order passed in a previous proceeding on a different cause of action cannot be authorised to regulate the adjudication of the rights and liabilities in the second suit or other legal action. We are thus constrained to hold that the view expressed by our learned brother Nazeer Ahmad Mahmood in Bakhshi Mahmood Ali v. Aurangzeb is not tenable.

8. As to the second question, the learned District Judge struck off the defence of the appellant on the ground that he had failed to comply with the direction of the Rent Controller fn depositing Rs.2,700 Instead of Rs.3,500 as arrears of rent and in depositing the rent for the months of June and July after the prescribed dates. The finding is factually erroneous. As seen above, the appellant had already deposited Rs. 800 on account of arrears under the order of Mr. Obaidullah Khan which accounted for rent up to January 1957. Thereafter he deposited two months' rent, i.e., for February and March and discontinued to make further deposits on account of the cessation of Mr. Obaidullah Khan's Court. Rent, therefore, fell due from April 1957 and as the present petition was filed in May 1957 the arrears amounted to Rs. 2,500 only. As against this, the plaintiff deposited Rs. 2,700 which not only wiped out the arrears but also amounted to depositing two months' rent in advance. On this view it cannot be said that the appellant had made any default in complying with the order of the Rent Controller under section 13 (6) for which his defence could be struck off. There is another aspect of the point under discussion. Assuming there was a default on the part of the appellant, neither the respondent nor the learned Rent Controller took any action for it at the proper stage. This written statement was allowed to be filed and issues framed in the case. Thereafter, both parties led oral and documentary evidence and the case was decided on merits. It, therefore, became the duty of the Rent Controller to pass judgment in the case in accordance with the provisions of Order XX, rule 5, C. P. C., which reads as follows: ‑ " In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefore, upon each separate issue, unless the finding upon anyone or more of the issues is sufficient for the decision of the suit.' It was accordingly too late to strike off the defence of the appellant in the appeal filed by the respondent which again had to be decided on the material placed on the record of the lower Court. The second ground on which the learned District Judge set aside the order of the Rent Controller is, therefore, equally untenable.

9. This appeal must, however, fail on the third point, because the appellant admittedly failed to pay or tender rent to the respondent for a considerable period after the original appli cation for ejectment was consigned to the Record Room. In proof of his assertion that the appellant had ail along tendered monthly rent to the respondent a number of counter‑foils of money‑order remittances were placed on record, but not properly proved or exhibited as evidence in the case. However, their perusal shows that no rent was remitted to the respondent during the whole of 1957 and for two months in 1959. The appellant, therefore, incurred the penalty for ejectment under section 13 (2)(i) and we see no ground on which this default could be condone. In the result, we dismiss this appeal, but in the circumstances of the case make no orders as to costs. A. H. Appeal dismissed.