2007 PLP 579 (CLC)

MIAN HAMID FAROOQ, J.

The respondent instituted the ejectment petition, before the learned Rent Controller, on the grounds of wilful default and personal need, seeking eviction of the appellant from the shop in question, which was contested by the latter. During the proceedings, the learned Rent Controller directed the appellant to deposit future monthly rent, at admitted rate, till 15th of each month and also framed issues through composite order, dated 17-4-2000. Subsequently, the respondent filed the application under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, pleading therein that since the appellant failed to comply with the terms of rent deposit order, therefore, his defence may be struck off. The said application was resisted by the appellant. The learned Rent Controller, after finding that the appellant was obliged to deposit the rent for each month before 15th of the same month, proceeded to accept the said application, struck off appellant's defence, accepted respondent's ejectment petition and directed the appellant to hand over vacant possession of the shop, vide order, dated 25-3-2003. Appellant's first appeal was dismissed by the learned Additional District Judge, vide impugned judgment dated 5-5-2005, hence the present appeal.

2. Learned counsel for the appellant contends that the appellant deposited the rent according to law and did not commit any default in complying with the terms of the rent deposit order. He adds that both the impugned judgments are contrary to the provisions of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, which, inter alia, provides that learned Rent Controller can only direct the tenant to deposit the "rent due". He has relied upon Muhammad Yusuf v. Muhammad Saghiruddin Qureshi 1987 CLC 76, Abdul Haq and another v. Syed Basharat Ali 1985 CLC ,1429, Khawaja Asimuddin v. Iftikhar Banoo 1985 CLC 707; Mian Rehmat Ali v. Khadeja Hakim PLD 1967 Lah. 29, Syed Shin Gul v. Haji Abdul Majid PLD 1968 Quetta 45, Nisar Ahmed and another v. Sharafullah PLD 1996 Kar, 136 and State Life Insurance Corporation of Pakistan Karachi v. Messrs Siddique Tailors through sole proprietor, Karachi PLD 1993 Kar.

642. Conversely, the learned counsel for the respondent reports no instructions and states that his client has taken the brief from him.

3. I have heard the learned counsel for the appellant and examined the summoned record. Both the Courts proceeded to decide the matter, favouring the respondent, for non-compliance of rent deposit order. It appears appropriate to reproduce order, dated 17-4-2000, which reads as follows: Plain reading of section 13(6) of the Ordinance, 1959 shows that the learned Rent Controller, before framing issues, is empowered to pass order directing a tenant to deposit all the "rent due" from him and also to deposit regularly till the final decision of the case before the 15th day of each month, the monthly "rent due" from him. It flows therefrom that a tenant could be directed to deposit the future monthly rent which is "due" from him. Obviously, the rent of each month becomes "due" on 30th day of that month, thus, tenant is required under the law to deposit the future monthly rent before 15th day of succeeding month. In view whereof, the order, dated 17-4-2000 was passed in complete derogation to the express provision of section 13(6) of the Ordinance. When law unequivocally provides that future monthly rent clue is to be deposited before the 15th day of succeeding month, how the learned Rent Controller could evolve his own procedure in violation of the provision of law. The learned Rent Controller has wrongly exercised its jurisdiction, thus, order, dated 17-4-2000 is not sustainable in law.

4. Both the Courts below proceeded on the erroneous assumption of law that future monthly rent was to be deposited on 15th day of same month and non-suited the appellant on the ground that the rent for the months of July, 2001, September, 2001, May, 2002, January, 20002 and October, 2002 was deposited after 15th day of each month. This is against the intent of section 13(6), as noted above, and against the law laid down in the cases relied upon by the learned counsel for the A appellant. I am of the considered view that the order dated 17-4-2000, on the basis of which the ejectment order was passed and first appeal was dismissed, was not an order, which could be treated to have been passed under section 13(6) of the Ordinance, 1959, thus, the defence of the appellant could not have been struck off. As the basic order is illegal and without jurisdiction, therefore, all the subsequent orders based on such order would fall to the ground. It has been held in Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 that: "And if on the basis' of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation fall to the ground because such orders have as little legal foundation as the void order on which they are founded." In view of the law declared, as the basic order was void and without jurisdiction, therefore, the ensuing series of orders could not be sustained. Surprisingly, the learned Additional District Judge did not advert to the said material proposition of law and he mechanically and in a stereotype manner dismissed the appeal without application of mind.

5. As regards the stance of the learned counsel. Under the law, he is still the counsel for the respondent. In this regard reference is made to the judgment reported as Ex-Hay. Mirza Mushtaq Baig v. General Court Martial 1994 SCMR 1948, wherein it has been held that even in cases where the papers have been taken away by the client, it is the duty of the Advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled according to rules by the client.

6. In the above perspective, I have examined the impugned order/judgment and find that they are against law, therefore, I am persuaded to set them aside.

7. In view of the above, the present appeal is allowed and orders, dated 17-4-2000, and 25-3-2003 and judgment dated 5-5-2005 are set side, with no order as to costs. Resultantly, respondent's ejectment petition shall be deemed to be pending before the learned Rent Controller, who shall decide the same, after hearing the parties and of course in accordance with law. F.B./A-225/L?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.