1979 PLP 143 (CLC)

Dates of hearing: 17th and 18th March. 1979. This is a second appeal against an order for the ejectment of the appellant, Abdur Rehman, from a house belonging to the respondent, Muhammad Tufail.

2. The ejectment of the appellant has been ordered in consequence of a petition filed by the respondent on 7th June 1972, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance. During the pendency of the ejectment petition, on 8th December 1972 the respondent made an application to the Rent Controller, Mr. Muhammad Akhtar Naqvi, who was then seized of the. case, praying that the appellant be directed to deposit rent for the months of October, November and December 1972 and afterwards pay the rent to the respondent regularly till the decision of the petition. The application came up before the learned Rent Controller on 11th January, 1973 when the appellant was not present. The learned Rent Controller, therefore, granted the respondent's prayer in the absence of the appellant. Subsequently, on 6th June 1973 the respondent made an application for striking off the defence of the appellant saying that he had not deposited or paid rent as directed by the learned Rent Controller. It was disposed of by the learned Rent Controller by order, dated the 24th July 1973. The view taken by him was that as the appellant's ejectment was being sought on the grounds oilier than that of default the order relating to the deposit of rent could not have been made. He, therefore, while reviewing the order passed on 11th January 1973, set aside the same.

3. On 19th December 1973, the case was transferred from Syed Muhammad Akhtar Naqvi, Rent Controller to Mr. Salabat Khan, Rent Controller. On 9th January 1974, when the case came up before Mr Salamat Khan, learned counsel for the respondent brought to his notice that no order under subsection (6) of section 13 of the Ordinance had been passed in the case. This statement was also endorsed by the learned counsel for the appellant. Thereupon, the learned Rent Controller adjourned the case to 14th January 1974 for arguments on the point as to whether direction under subsection (6) of section 13 of the, Ordinance, for deposit of rent could be given at that stage of the proceedings. By then, the issues had been framed and some evidence had also been recorded. On the said date the learned Rent Controller heard the parties' counsel and, relying on Hafiz Ali Muhammad v. Jamal Din and others (P L D 1966 Lah. 934) held that the direction for deposit of rent could be given even after the framing of the issues. He therefore, asked the appellant to produce receipts relating to deposit of rent so as to enable him to make suitable order under subsection (6) of section 13 of the Ordinance. The appellant produced certain receipts in compliance with the order of the learned Rent Controller and after taking them into account, he directed the appellant, on 27th March 1974, to deposit future rent for each month before the 15th of the next following month.

4. Then, after sometime, the case was transferred to Mr. Shahbaz Hasan Gardezi, Rent Controller. When the case was with him, the respon?dent made an application on 23rd July 1977 pointing out to the learned Rent Controller that rent for the month of April 1977 had not been deposited by the appellant before the stipulated date and, therefore, his defence was liable to be struck off. This plea found favour with the learned Rent Controller because he gathered that rent for April 1977 had been deposited in the month of June 1977. The learned Rent Controller, therefore, struck off the defence of the appellant and ordered his ejectment.

5. Feeling aggrieved by the order of the learned Rent Controller, the appellant went in appeal before an Additional District Judge, but without success. He has, therefore, come up in second appeal to the Court.

6. Learned counsel for the appellant contended that the order, dated 27th March 1974, was passed by the learned Rent Controller by reviewing the earlier order of 24th July, 1972, and since he had no power to review the said order, the order of 27th March 1974 was not sustainable. The arguments proceed that as the order, dated the 27th March, 1974, directing the deposit of rent was not in accordance with law, the defence of the appellant could not be struck off due to his failure to comply with that order. Reliance was placed on Agha Muhammad Hussain v. Mehraj Din (P L D 1973 Lah. 95) to support the aforesaid contention.

7. On the other hand, learned counsel for the respondent maintained that the orders passed by the learned Rent Controller before that of 27th March, 1974 were not in consonance with the letter and spirit of the provision of subsection (6) of section 13 of the Ordinance and as such they could not be taken into consideration while examining the validity of the order made on 27th March, 1974. According to him, the order required to be passed by the learned Rent Controller, under subsection (6) of section 13, was made by him, for the first time, on 27th March, 1974 and it was not open to any valid objection.

8. I agree with the learned counsel for the respondent that the order for deposit of rent as contemplated by subsection (6) of section 13 of the Ordinance was, in fact, only that order which was made by the learned Rent Controller on 27th March, 1974. The order made by him on 11th July, 1973 was not an order in terms of the said provisions of law inasmuch as by that order he had simply allowed the request made by the respondent that the appellant be directed to deposit rent for the period from October to December, 1972 and pay future rent to him (respondent). In that order no date for the deposit of arrear of rent was fixed which is required to be done under subsection (6) of section 13 of the Ordinance. Also, the g provisions of subsection (6) of section 13 do not envisage a direction by a Rent Controller requiring the tenant to pay rent to the landlord. What a Rent Controller can, and is obliged to do is to direct the deposit of arrears of rent, if any, and the future rent in his office. The order passed on 11th January, 1973, therefore, cannot be treated as an order under subsection (6) of section 13.

9. As regards the order, dated 24th July, 1973, it is true that by the said order the learned Rent Controller reviewed the order passed on 11th January 1973 which, in view of the dictum: in the above cited case of Agha Muhammod Husain, he was not competent to do. Thus, if the order of 24th July, 1973 is ignored on the authority of the law laid down in the case of Agha Muhammad Hussain, the position would boil down to this that the order, dated the 11th January, 1973, would stand revived. But, as already explained, that order is no order in the eye of law because it was not warranted by subsection (6) of section 13 of the Ordinance or any other provisions of the Ordinance. It would, therefore, follow that till the passing of order, dated the 27th March 1974, there was no order for deposit of rent which is required to be made under subsection (6) of section 13 of the Ordinance and the order of 27th March 1974 was the first and last order made by the learned Rent Controller, under subsection (6) of section 13, without superseding any earlier order in this behalf. In this view of the matter, no exception can be taken to the order of 27th March 1974, on the basis of the principle enunciated in the case of Agha Muhammad Husain.

10. Subsection (6) of section 13 of the Ordinance makes it obligatory for a Rent Controller to direct a tenant to deposit arrears of rent, if any and the future rent. This direction is to be given not only in a case in which the ejectment is sought solely on the ground of default or that ground is one of the grounds pressed for securing the eviction of a tenant, but also in every case for the ejectment of a tenant regardless of the nature of pleas raised therein. If any authority were needed for the above proposition, a reference can be made to Mst. Mahmooda Begum v. Mst. Mahmooda Jan (1973 S C M R 13). Thus, it was the statutory duty of the learned Rent Controller to direct the appellant, under subsection (6) of section 13 of the Ordinance, to deposit rent. This legal requirement was satisfied by him on 27th March 1974 only. The orders passed by him earlier were not in accordance with the said provisions of law. In the circumstances, even after passing those orders, the Rent Controller was not absolved of his responsibility to order the deposit of rent. The order passed by him on 27th March 1974 was therefore, in the discharge of his statutory obligation and this is another reason for which it is unexceptionable.

11. Admittedly, the appellant did not deposit rent for the month of April 1977 within the stipulated period. The only explanation offered by his learned counsel for his failure to comply with the said direction is that he had no funds to make the deposit in question. There is nothing on the record to show that the applicant was a pauper and was therefore, unable to pay a small amount of monthly rental, i. e., Rs.

15. Even if he was so, it is immaterial. The law applies to all persons for whom it is enacted regardless of the fact that they are rich or poor. The appellant is enjoying the premises owned by the respondent. If he is not going to pay for them, be should part with them. The plea of poverty, which is also not supported by any evidence on the record, therefore, cannot save the appellant from the legal consequences of his failure to comply with the direction of the Rent Controller. The above cited case of Hafiz Ali Muhammad is an authority in point.

12. In result, I hold that there is no merit in this appeal. It is, therefore, dismissed with costs. The appellant is, however, allowed two months' time to vacate the premises in dispute.

13. It has been unanimously stated by the learned counsel for the parties that the facts of S. A. Os. Nos. 456, 457, 458, 459, 460 and 461 of 1978 are identical to those of the present appeal and the points involved in the said appeals are also the same as raised in the instant appeal. Learned counsel for the parties, who are also counsel of the parties in the said appeals, have addressed common arguments in the appeals mentioned above and the one in hand. The reasons recorded in this order shall, therefore, be read as reasons for the orders made in the said appeals. Appeals dismissed.