1980 PLP 1564 (CLC)

KHURSH)D AHMAD, J.-Briefly stated ,the facts of the case are that the respondent filed a petition for the ejectment of Haq Nawaz deceased from Shop No. 62', Block No. 1, Rail Bazar, Jhang Saddar sin 29th October, 1965. On 23rd April, 1966 the learned Rent Con troller passed an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance for the deposit of Rs. 2,720 as arrears of rent at the rate of Rs. 100 p. m. from 1st June, 1963 to 30th April, 1966 which was to be deposited before 19th May, 1966. Haq Nawaz deceased filed an appeal on 14th May, 1966 which was accepted by the learned Additional District Judge, Jhang on 8th July, 1966 and the rent was reduced from Rs. 100 to Rs.

60. The aforesaid appellant had been directed to furnish security for the arrears of rent during the pendency of the appeal. After the remand of the case by the order of the Appellate authority, the respondent submitted an appli cation for striking of the defence on the ground that the rent for the months of May, June and July, 1966 had not been deposited in time. The learned Rent Controller accepted the application and struck off the defence of the original tenant and passed an order of eviction of the appellant on 7th October, 1966. On 24th October, 1966 an appeal was preferred against tide said order which was dismissed on 19th November, 1966 by the learned Additional District Judge. However, an S. A. O. No. 421 of 1966 was filed in this Court which was accepted on 6th May, 1976 and the case was remanded. In the said appeal it was held that no default for the months of May, June and July 1966 had occurred anti the security given for the past arrears covered the period ending 30th April. 1966. After the remand the respondent again submitted an application before the learned Rent Controller that the appellants have committed default in the deposit of rent for the months of April, July and August, 1966. This application was contested by the appellants and the same was dismissed on 14th March, 1978. The respondent filed an appeal before the learned Additional District Judge, but the same was withdrawn on 24th May, 1978, The respondent is said to have filed another application for the striking off the defence of the appellants before the learned Rent Controller on 26th June, 1978 on the ground that the rent for the months of August and November, 1966 was not deposited in time. The learned Rent Controller dismissed the application vide his order dated 16th December, 1978 on the ground that although the rent for the month of October, 1966 was deposited on 15th November, 1966, but it was not advisable to strike off the defence after a period of 12 years. The respon dent filed an appeal before the learned Additional District Judge which was accepted on 10th July , 19`19 which order has been challenged by the appellants in the present appeal

2. The learned counsel for the appellants has argued that the judgments reported as Muhammad Jan v. Khadim Hussain (1973 S C M R 243) and Muhammad Siddique v. Muhammad Rashid (P L D 1979 Lah. 273) relied upon by the learned Additional District Judge were not applicable to the facts of the present case. .The precise contention of the appeliants is that the learned Rent Controller having passed a final order of ejectment on 7th October, 1966 and the appeal having been filed before the learned District Judge was dismissed on 19th November, 1966, therefore after passing the final order the tenant was not bound to comply with the order under subsection (6) of section 13 of the Ordinance. Reliance was placed in this behalf on Abdul Ghafoor v. Ahmad Kunhi (P L D 1969 S C 424). If the case is examined from this point of view then the default in not depositing the rent for the months of August ,and November, 1966 even in time would not invoke the penalty of striking off the defence. The relevant observa tions of their Lordships arc quoted below :- "The order contemplated by the first part of section 13 (6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceed ings in which it is made, It i worthy of note that the penalties provided under subsection (6) of section 13 for non compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only be passed by the original Court. In any event such an order does not remain effective after the final determi nation of the proceedings before the Controller." This judgment of their Lordships was further relied in the case of Qamaruzzaman v. Khair Din (P L D 1979 Quetta 72) and was further affirmed in S. Pinlieu v. Mst. Najma Qasim (P L D 1969 S C 424). The learned counsel for the appellant has also relied on the case of Roshan Din v. S. M. Hadar Din (P L D 1969 Kar. 546).

3. In view of the above discussion it would therefore be abundantly clear that the final order of eviction having been passed and the matter having remained pending before the appellate Court, order under sec tion 13 (6) could not be pressed into service. The two judgments relied on by the learned Additional District Judge are not applicable to the facts of the present case. Muhammad Jan v. Khadim Hussain (1973 S C M R 243), deals with the default in depositing the monthly rent by the due date. The tenant in that case had sought permission from the Court for depositing the rent late in the day with the consequence that by the time he reached the Bank to deposit the amount the banking hours were over. The default committed under these circumstances was held due to . negligence. The order striking of the defence was upheld by the learned Supreme Court.

4. In the case of Muhammad Siddiq v. Muhammad Rashid (P L D 1979 Lah. 73) the learned Rent Controller had clearly directed that the rent for each month shall be deposited before the 15th day of the next month and as such had left no room that the rent was to be deposited on 15th. In this case it was held that there was nothing to show that the delay of one day was due to any reason beyond the control of tenant. In case the question of termination of the order under section 13 (6) was' not involved the aforesaid. decision would have been applicable.

5. However, in view of the circumstances explained above the order of the learned Add]. District Judge, dated 10th July, 1979 is hereby set aside and that of the learned Rent Controller is restored and the case is remitted to the learned Rent Controller for the disposal of the petition on merits. However, in the circumstances of the care there will be do order as to costs.

6. The Rent Controller is further directed to expedite the matter. K. M. A. Case remanded.