1987 PLP 1530 (CLC)

Ch. Altaf Hussain for Respondents. Date of hearing: 25th April, 1987. JUDGNEMT Petitioner is tenant of Property No.Z/727, a house situated at Sarai Beli Ram, Rawalpindi City, of which respondents are the landlords. Rent payable was fixed at Rs.195 p.m. Tenancy as also the rate of monthly rent is not in dispute between the parties. On 30‑7‑1978, respondents applied to Rent Controller, Rawalpindi, Urban Area for ejectment of tenant and alleged that he had sublet the premises without their permission; that he had materially damaged the property which has impaired its value and utility; that the premises are required for reconstruction. In defence, demand for ejectment was denied. On 1‑3‑1979, Rent Controller directed tenant‑petitioner to deposit monthly rent at the rate of Rs.195 p.m. before 15th of each succeeding month till the final disposal of rent‑case and settled following issues for determination:‑

(1) Whether the respondent has sublet the suit property? O.P.A. (2) Whether the respondent has materially damaged the suit property and has impaired its utility and value? (3) Whether the petitioners bona fide require the suit property for reconstruction? (4) Relief. On the issues framed, Rent Controller, recorded evidence of the parties and vide his decision dated 11‑11‑1979, found for the respondents and directed ejectment of the petitioner. Issues Nos. 1 and 2 were decided against the respondents, whereas, No.3 was held in their favour. It was observed that the property in question was required for reconstruction in accordance with site plan approved by the competent authority. Tenant preferred an appeal and questioned the finding of Rent Controller before District Court. In course of appeal, respondents filed an application and complained that as the petitioner‑tenant had contravened the direction of the Rent Controller and failed to deposit the monthly rent, his defence be struck off and the possession of property be restored to them. In reply, it was pleaded that breach of a rent‑direction made by Rent Controller under section 13 (6) for deposit of monthly rent, could not be availed of in appeal for ordering ejectment forthwith. However, learned Additional District Judge before whom the appeal was fixed for hearing found that as the tenant had not deposited rent since May 1979 to March 1980 and had contravened rent direction, tenant's defence was liable to be struck off and his appeal bound to fail. Accordingly, appeal was dismissed and petitioner‑tenant was directed to vacate within one month from his order, dated 14‑12‑1981. Aggrieved of the decision, petitioner filed petition in constitutional jurisdiction. It was admitted to hearing on 26‑12‑1981 and it was ordered that status quo meanwhile shall be maintained. Short point arising for consideration in the petition is whether the Appeal Court could rely on the breach of rent‑direction issued by the Rent Controller, and strike off the tenant's defence. Nasir Saeed Sh., Advocate on behalf of the petitioner, with reference to decided cases contended that such a course was not available to the Appeal Court. It was argued that order passed under section 13 (6) of Rent Ordinance, was of a interlocutory nature and could not be said to remain effective after the final determination of proceedings in which it was made. It was submitted that after the appeal was filed and admitted to hearing, learned Additional District Judge was empowered to pass a fresh order in regard to deposit of rent under section 15 (5) of the Rent Ordinance and if the appellant failed to abide by this direction, it was clearly open to the learned Appellate Judge to take penal action as provided in the afore-noticed subsection. Ch. Altaf Hussain, learned counsel for the respondents conceded to the proposition of law. However, it was argued that as the default was admitted and rent‑direction had not been complied with, petitioner should be denied relief in equitable jurisdiction. After having heard learned counsel at length and examination of the record. I find that this petition is bound to succeed. There is no dispute that Appeal Court had not passed a fresh order for deposit of rent, arrears or future. Only order relied upon for striking off the defence was that which was made by the Rent Controller. It is well‑settled statement of law that direction issued under section 13 (6) of the Ordinance by the Rent Controller being of an interlocutory nature, merges in the judgment and does not survive final determination to keep its separate identity alive thereafter to give rise to penal consequences. This statement of law has been accepted as correct in number of decisions given by the superior Courts. Refer Roshan Din v. S.M. Badruddin P L D 1969 Kar. 546, Abdul Ghafoor v. Ahmad Kunhi P L D 1969 SC 424, S. Pin Liu v. Mrs. Najma Kazmi P L D 1978 S C 275, Mst. Janatan Bibi and 6 others v. Kh. Shaiq Hassan 1980 CLC 1584, Qamar‑uz‑Zaman v. Khair Din and 2 others 1980 C L C 2011, Mst. Shamim Akhtar v. Mst. Insha Allah Begum 1981 C L C 1072. Learned counsel for the respondents frankly conceded that on this point there is no dissension. Therefore, it can be safely said that learned Additional District Judge took an entirely incorrect view of law when he proceeded to strike off the defence on the basis of an order passed by Rent Controller. With the contention of the learned counsel that the relief in equitable jurisdiction should be refused to the petitioner, I cannot agree. Learned counsel, on both sides, are not agreed on the period of default. It is also seen from the record that learned Additional District Judge did not record his finding on merits of the cause, but had proceeded to order ejectment on the basis of default in payment of rent only. Without being disrespectful to him, course adopted by him had not the sanction of law. Rather, the judicial pronouncements of the superior Courts, reference to which has already been made, were contrary to the opinion of the learned Judge. Law declared by the superior Courts was clearly binding upon the learned Judge and it is not known as to how he came to disregard conspectus of authorities which went against his view. No doubt, when a Court acts in disregard of the law declared by the superior Courts, which, by authority of Constitution, is binding upon him, he clearly acts without jurisdiction and without lawful authority. For the reasons given above, petition is allowed, impugned judgment, dated 14‑12‑1981, is set aside and is declared to have been made without lawful authority Result is that the appeal filed by petitioner shall be deemed to be pending for its decision afresh. Accordingly, rent‑case is remitted to the Court of learned District Judge, Rawalpindi, who shall pass a fresh order for deposit of rent and after hearing the parties shall decide the appeal on merits also within three months and in any case before 31st July, 1987. I am confident that the rent appeal which has already suffered delay in its decision shall not be made to suffer further delay. No costs. Records be sent to the Court below where parties have been directed to appear on 28‑4‑1987. M.B.A./A‑75/L??????????????????????????????????????????????? Case remanded.