1984 PLP 929 (CLC)

‑‑Ss. 13(6) & 15(4)‑Stricking off defence‑Tentative rent order Non‑compliance‑No explanation for non‑deposit of arrears of rent-Wilful default, held, committed by tenant. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 11959)‑ ‑‑ Ss. 13(6) & 15(4)‑Tentative rent order‑Wilful default estab lished‑Pendency of review application in respect of order, held, not bar to validity thereof. 1979 S C M R 336 ref. PLD1983 S C 1 rel. JUDGMENT Appellant above‑named being aggrieved by order dated 23rd February, 1980 of the learned Second Rent Controller, Karachi, in Rent Case No. 4540/713 by which respondent's application under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 was allowed and the defence of the appellant was struck off and the appellant was directed to hand over possession of the shop to the respondent, has preferred the above appeal on the facts and grounds mentioned in the memo of above appeal. The learned Advocate for the appellant in support of the above submitted as under :‑ (a) That at the time when respondent filed application under sec tion 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, appellant's application for review of the tentative rent order was pending and the same has not yet been disposed of and con sequently the impughed order cannot legally be sustained. (b) That the tentative rent order in question is illegal and contrary to the facts on record and as such it could not have been made the basis for striking off the defence of the appellant and the learned Rent Controller ought to have considered the review application filed by the appellant, which was pending and there after he should have passed the legal tentative order, which he failed to do so and as such the said tentative rent order was illegal and could not have been made the basis of the impugned order. In support of this the learned Advocate for the appellant relied upon case reported in 1979 S C M R 336. (c) That the decision of Hon'ble Supreme Court reported in P L D 1983 S C 1 was based on different facts and as such not appli cable to the present case and therefore either this Hon'ble Court consider the review application filed by the appellant which is still pending and/or set aside the impugned order and remand back the case to the learned Rent Controller for consideration of the review application of the appellant, which is pending and thereafter to pass tentative rent order in accordance with the provisions of the law. The learned Advocate for the respondent on the other hand submitted, that the appellant filed his objections to the said application of the respondent under section 13(6) of the West Pakistan Urban Rent Restric tion Ordinance, 1959 in which be stated, that respondent be called upon to take oath on Holy Quran regarding quantum of rent and denied that he had committed default in payment of rent in accordance with the tentative rent order. The learned Rent Controller took into considera tion the submissions made by the learned Advocates before him and perused the Nazir's report which is at the back of respondent's applica tion, which clearly shows, that the appellant failed to deposit Rs.3,875 on account of arrears of rent on or before 15th April, 1979. In view of this, since the appellant offered no explanation for non‑deposit of arrears of rent in question, the learned Rent Controller was fully justified in passing the impugned order. The learned Advocate for the respondent further submitted, that the contentions raised by the appellant regarding validity of the tentative rent order cannot be considered in the above appeal, in view of the above decision of the Hon'ble Supreme Court reported in P L D 1983 S C 1 and consequently the above appeal is liable to be dismissed. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned Rent Controller as well as impugned order and the tentative rent order. It is clear from the tentative rent order, that the appellant was directed to deposit arrears of rent amounting to Rs.3,875 before 15th. April, 1979 but he failed to deposit the said arrears, which is clear from the Nazir's report dated 15th January, 1980 which is given on the back of respondent's application in question. I have gone through the objections of the appellant filed in response to respondent's application under sec tion 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and I see no explanation at all given by the appellant for non‑depositing the arrears of the rent amounting to Rs.3,875 before 1 5th of April, 1979 in accordance with the tentative rent order. In view of this I see no reason to disagree with the conclusions of the learned Rent Controller, that the appellant committed wilful default in compliance with the tentative rent order dated 6th February, 1979. The contention of the learned Advocate for the appellant, that the tentative rent order dated 6th February, 1979 is illegal and contrary to facts on record and since appellant's review application in respect of the tentative rent order dated 6th February, 1979 was not disposed of by the learned Rent Controller, the impugned order cannot legally be sustained. has no force, in view of the law, laid down by Hon'ble Supreme Court in case reported in P L D 1983 S C 1, according to which, these questions cannot be considered in the above appeal, once wilful default in respect of the tentative rent order is established. Therefore I find no merits in the above appeal which is consequently dismissed, with no orders as to cost. However, I grant time upto 1st. August, 1983 to the appellant, to vacate the premises in his occupation and hand over its vacant possession to respondent provided be con tinues to deposit the rents in respect of this period in accordance with the tentative rent order dated 6th February, 1979 regularly and punctually. As far as C.M.A. No. 1008 of 1981 is concerned, the learned Rent Controller is directed to calculate the rents due from the appellant up to date, i.e. to 31st July, 1983 in accordance with the tentative rent order and to adjust the deposit of rents made by the appellant in the Court of learned Rent Controller Miscellaneous Rent Application as well as in the High Court against such rents due and in case there is any excess payment made by the appellant, the same may be refunded forthwith to the appellant. In this connection the learned Rent Controller is directed to give notices to both the parties and after hearing both' the parties to dispose of this application of the appellant keeping in view the directions of this Court, as hereinbefore mentioned. M. Y. H. Appeal dismissed.