1997 PLP 2041 (CLC)

Raja M. Afsar learned counsel for respondent stated:‑ (i) It is not a case in which the Controller had reviewed ifs previous order dated 19‑8‑1996 because that order was not an order under section 13 subsection (2), but it was an order under section 13(6) of the Ordinance of 1959, therefore, on. framing the issue the Controller rightly concluded that appellants are not entitled to claim the benefit of second proviso to section 13 (2) because they had not admitted liability on the first date of hearing rather they submitted written statement raising therein a good number of objections. He relied on PLD 1991 SC

138. I have heard parties' counsel and also perused pleadings as well as impugned order carefully. Undoubtedly appellants after service effected upon Muhammad Saddique on 25‑7‑1996 and Mst. Zaib‑un‑Nisa before 8‑8‑1996 on their appearance either in person or through Advocate did not offer payment of outstanding rent to landlord. Inasmuch as when the written statement was filed by them even then unconditional offer was not made to deposit the rent. In this behalf perusal of written statement indicates that firstly there is preliminary objection that Eviction Application No.5 of 1996 is already pending between the same parties including other brothers and sisters of the respondent in the same Court, therefore, second application is not competent under the law. Similarly in Objection‑B it was stated that alleged period of default as mentioned in the present eviction application is also involved in the earlier eviction application which is already pending in the Court, therefore, in respect of one cause of action two legal proceedings are not competent. On merits they gave history of the case commencing from 14‑10‑1992 when agreement was executed by them with mother of the respondent objecting the legal status of the lady to enter into such agreement with them because as Grand Little Folks High School belongs to a Society under the name of Grand Little Folks Society which consists of 7 members, constituting of its Governing Body and the same is registered under the Societies' Registration Act etc. Similarly other parts of the eviction application were vehemently contested. But ultimately the liability was accepted to pay the rent with effect from death of Mrs. J.W. Nathenial, i.e., 11‑2‑1996 with undertaking that in terms of the order earlier passed in first eviction application they would continue making payment of the future rent. It appears that the Controller itself was not satisfied that the appellants deserve benefit of second proviso to section 13(2) of Ordinance VI of 1959 that is why instead of disposing of the matter on 19‑8‑1996 order was passed under section 13(6) directing to appellants for making payment of rent from February 12, March, and April, 1996. At this juncture it may be noted that in the earlier Eviction Application No.5 of 1996 Controller had not passed order for the deposit of the past rent as stated at bar by both the learned counsels that in those proceedings appellants were directed to deposit future rent from May, 1996 to onwards, therefore, for the past rent in respect of the period mentioned in the instant second application the appellants prima facie were defaulters. Had they not committed default there was no occasion for them to make offer for the deposit of the rent when they submitted written statement in this application. Inasmuch as in the earlier eviction proceedings which are still pending according to the statement of Raja M. Afsar they never attempted to hand over the rent of this very period or requested to Court for permission to deposit the same in the Bank. With this background when the Controller itself had not passed order under second proviso to section 13(2) of the Ordinance, 1959 thereby finally determining the proceedings it was decided on merits to ascertain whether they are entitled to the said proviso or not, therefore, I am not in, agreement with learned counsel Mr. Muhammad Arshad Chaudhary that the Controller had its earlier order. Now turning towards the real issue which is the bone of contention between both the parties namely, whether appellants accepted first default without any objection and they were entitled for the benefit of second proviso to section 13(2) of Ordinance, 1959 or otherwise. Since the liability to pay the rent was admitted, therefore, there is no doubt to conclude that default was committed by the appellants. As far as the question of condonation of default is concerned that depends on the admission by the tenant on first day of hearing of the eviction application as it has been discussed by honourable Supreme Court in the case of Hazrat Umar v. Zafar Majeed and 13 others, (PLD 1991 SC 138). Relevant portion therefrom reads as under:‑ "We do not agree with him. It was a disputed question whether or not the landlord had refused to receive the rent in the first instance, accordingly the appellant had disputed his liability to be evicted on the ground of default. In case like the present the condition in the Proviso would have been satisfied it' the tenant would have, at proper time, accepted, amongst ;As his liability to nay the rent. There was also liability to be evicted if the rent is not offered and paid as laid down in Proviso. In this case none of the conditions is satisfied. For example the appellant did not accept his liability to pay the rent. As to the facts, when he had filed the written statement, the rent according to his own admission in Para. 5 of his written statement was still due. Notwithstanding the aforementioned averment in the‑written statement about rent he did not offer to pay the rent straightaway without raising any contest as is the intention underlying the Proviso. Accordingly, he cannot get any advantage on account of the newly added proviso. In this behalf it needs to be remarked that it is the duty of the counsel appearing in such cases to advise the client properly so that he may be saved of the unnecessary contest, litigation and loss, monetary and otherwise to both the parties. " In view of the above principle enunciated by Honourable Supreme Court I am pursuaded to hold that as far as first date of hearing under the proceedings of Rent Restriction Ordinance, 1959 is concerned it cannot be equated with the hearing of case as it has been defined under Order 9, Rule 7 and 8, C.P.C. where expression 'hearing' has been interpreted to be a date when effective proceedings for the advancement of suit has to be carried out because second proviso to section 13(2) was enacted for the purpose of benefit of tenants with the object to shorten litigation between the parties, subject to the condition that on the first date of hearing when tenant appears and he candidly and with unqualified statement admits liability and offers to make payment the Controller on accepting the offer made by the tenant would record the order directing him to deposit the rent, and thereafter, without even looking into merits of eviction application, what to talk of written statement or any thing else would summarily dismiss the eviction application. In the instant case as it has been pointed out hereinabove appellants after availing adjournments as it is indicative from the different dates which was obtained by them either on the pretext that copy of eviction application has not been given to them or obtained the date for filing wakalatnama and later on after full-fledged consideration raising all the legal objections undisputedly availing all alternative safeguards/cushions against the eviction order had made a qualified statement, admitting liability to pay the rent with effect from 12‑2‑1996 to 30‑4‑1996, made a statement with all reservations by using the words before opening sentence 'save', therefore, it is not possible to hold that appellant made unqualified offer on the first date of hearing for payment of rent. Mr. Muhammad Arshad Chaudhary also referred to 'Muhammad Siddique Qureshi v. District Judge Peshawar and others' (PLD 1993 SC 192); wherein, on facts it was held that because tenant without loss of time submitted written statement and straightaway accepted liability regarding arrears of the rent and also expressed willingness to pay the amount, through remitting the same to the landlord, but the learned Controller did not give decision on the eviction application and deferred it till finalisation of the eviction application, therefore, it was held that on account of the delay by the Controller to dispose of the issue regarding first default and offer by tenant to make his payment. straightaway would not deprive him from the benefit of proviso to section f3(2) of the Rent Restriction Ordinance. He also relied on Habibullah v. Rent Controller Peshawar 1996 SCMR

362. In this judgment Honourbale Supreme Court has granted leave to consider whether High Court correctly extended benefit of Second proviso of section 13(VI) of the Ordinance, to tenants and whether predecessor‑in‑interest of the tenants by entering business of partnership on the strength of specific deed was guilty of subletting of shop in question within the meaning of section 13(2)(A) of the Ordinance. With utmost respect I may observe that so far this matter has not been finally disposed of by the apex Court, therefore, in the absence of any principle of law enunciated in this judgment learned counsel cannot take its benefit. Raja M. Afsar had submitted an application being Civil Miscellaneous No. 379 of 1997 pointing out that appellants had managed to run school in a different building which they have acquired in front of Kansi Killa, therefore, for these reasons as well morally appellants are not entitled to continue in possession of the demised property. In my opinion this assertion would not be relevant for disposal of present proceedings, as respondent had not sought ejectment of, appellants on any other ground except default in the payment of rent, therefore, I refrain from dilating upon this aspect of the case. Thus, for the foregoing reasons I see no force in the appeal which is dismissed and order of Controller dated 6‑11‑1996 directing ejectment of appellants is maintained. Parties shall bear their own costs. H.B.T ./644/Q Appeal dismissed.