1980 PLP 1009 (CLC)

Date of hearing : 22nd February, 1973. The dispute in these two Second Appeals originated in Suit No. 1597/59 filed by the respondents against deceased Kishan Chan Jethanand, the predecessor of the appellants, in which ejectment of the defendant was sought on the ground that he had defaulted in the payment of rents of the consolidated premises, consisting of a show-room and garrage, situated next to Shezan Restaurant on Victoria Road, Karachi, the rent payable being Rs. 400 per month. The suit was decreed on 18th December, 1961 but on appeal the tenant succeeded in the District Court 41!!4 Karachi, as well as in the High Court on Second Appeal. The proceedings terminated with the order of the High Court passed on 23rd November, 1966.

2. A development that took place in the meantime, led to another case between the parties, and it was through an application under sec tion 144, C. P. C. made by the tenant for the restoration of possession of the show-room which had been taken over by the respondents pursuant to the original decree passed by the trial Court. A further complication arose as on the next day of the taking dyer of possession, the landlords rented the show-room premises to one S. A. Latif. It may be said that the appellants are the legal representatives of the original tenant, who died during these proceedings, and they have been put back in possession of the show-room premises.

3. While these proceedings were pending, the respondents made second attempt for the ejectment of the appellants through Rent Applica tion No. 1474/67 in respect of the garrage premises only for which rent at Rs. 250 was claimed, the difference of Rs. 150, according to the respon dents being the rent of the show- room- premises. The appellants contested the case, inter alia, on the plea of doctrine of Suspension of rent in that they having been ousted from a part of demised premises are entitled to withhold the whole rent, until the full possession is restored by the landlord. However, when the case came up for hearing on 25th November, 1967 which day was fixed for the settlement of accounts between the parties, the Rent Controller passed the following order which is the subject-matter of Second Appeal No. 203/1968 "Heard learned Advocate for the applicants. The opponents and their Advocate are absent at the moment. The applicants have also claimed rent for a portion of premises which was admittedly in possession of the opponents at the time of filing these proceedings. According to me the applicants can not claim rent for a portion of the premises which was not occupied by the opponent. However, I allow their claim for rent in respect of the garrage only. The rent for garrage is claimed by the applicants at the rate of Rs. 250 which accord ing to me does not appear to be excessive looking to the locality when the property is situated. The opponents do not assure that they had made any payment in respect of the portion of the premises now possessed by them since 1st December, 1958. 1 therefore direct the opponent to deposit Rs. 26,750 being arrears of rent from Ist December, 1958 to 31st October, 1967 in three instalments, first payable on 4th January, 1968, the second payable on 4th February, 1968 and third on 4th March, 1968. They are directed to deposit future rent at the rate of Rs. 250 per month, before 15th of each calendar month till decision of the proceedings. 16th December, 1967 for issue."

4. It is the case of the appellants that Mr. A. Rauf, their senior counsel was busy in certain cases in the High Court on 25th November, 1967 and their Junior lawyer was in the District Court premises and he was informed there that the case was adjourned to 16th December, 1967 and it was on. that day when he attended the Court that he discovered that the case had actually proceeded on 25th November, 1967 and the order was passed. He therefore, applied through application dated 18th December. 1967 that the ex parte order be set aside, but the learned Rent Controller rejected the request by the order dated 23rd December, 1967 on the ground that the order passed by him on 25th November, 1967 was not an ex parte, but on the merits of the case, and in any case the pro visions of Order IX, rule 7, C. P. Code under which the application was made do not apply to the proceedings under the West Pakistan Urban Rent Restriction Ordinance, 1959.

5. The tenants in the meanwhile challenged the order of the Rent Controller dated 15th November. 1969 in Appeal No. 604/67, and also filed another Appeal No. 29 of 1968 against the subsequent order of the Rent Controller. Both these appeals were however, dismissed by the Additional District Judge, Karachi, by the consolidated order dated 14th February, 1958 which became the subject-matter of these two Second Appeals.

6. The legal position as .to the above maintainability of an applica tion under Order IX, rule 7, C.P.C. in proceedings under the Ordinance now stands settled by the Full Court decision of the Lahore Seat of the West Pakistan High Court reported as P L D 1972 Lah.

603. The learned Rent Controller was therefore. not right in holding that the application of the appellants under Order IX, rule 7, C.P.C. was incompetent. The learned Additional District Judge, Karachi, also fell in the same error while rejecting the appeals of the tenants on the same ground. No consideration was therefore paid to the plea taken by appellants that their counsel was pre vented by sufficient cause in not appearing before the Rent Controller on 25th November, 1967. Moreover, on that day the case was fixed for the, settlement of accounts, and even if certain amount was found by the Rent Controller to be payable by the tenants, he clearly erred in directing that the tenants should deposit, even the amount which had become barred by time. Their Lordships. of the Supreme Court have held in case reported as P L D 1968 S C 230 and subsequently in other case reported as P L D 1971 S C 766 that claims to the recovery . of rents which are barred by time cannot be made under the provisions of the Ordinance. Therefore even if the order of the Rent Controller dated 25th November, 1967 is held not to be ex party order but one passed on merits, it would be bad in law in view of the legal position settled by the Supreme Court of Pakistan.

7. Faced with this situation and also the circumstance that these Second Appeals after all are directed against a tentative order passed under section 13(6) of the Ordinance as long ago as November, 1967 and also that all the arrears of rent as directed by the Rent Controller by the order dated 25th November, 1967 have already been deposited in Court, the learned counsel for both the parties agreed that it would be in the in terest of the parties if the litigation is now shortened, and a consent order is passed. I may point out here that according to the learned counsel for the respondents, yet another application for the ejectment of the appellants has been filed on a fresh cause of action said to have arisen during the course of the proceedings. If this is so then the order passed in these two Second Appeals is not meant to affect that case. The learned counsel however, requested that these two appeals maybe disposed of, by consent, on the following terms :

. (i) That in Ejectment Application No. 1474;67 the respondents shall not press the Rent Controller, for the striking out of the defence of the appellants on the ground of the delay in compliance with the order passed by the Rent Controller on 25th November, 1967. question whether they were entitled td withhold the rent on plea that the doctrine of suspension of rent applied to case, and also whether the quantum of rent demanded by respondents was the agreed rent. (iii) The amount of rent deposited by the tenants which has already been withdrawn by the respondent as well as the amount to deposited in future shall be subject to the final adjudication the Ejectment Application No. 1474/67. (iv) That the appellants shall continue to deposit monthly rent Rs. 250 until the final order is passed by the Rent Controller Ejectment Application No. 1474/67. (v) In case the appellants wish to apply to the Rent Controller they may be allowed to deposit rent at Rs. 400 per month view of the fact that the possession of the show-room and Barrage has already been delivered to them it may be left to the Rent Controller to pass any order in this behalf.

8. I see no reason why I should not give effect to the settlement the parties. Both these Second Appeals are accordingly disposed of terms above, with no order as to costs. M. Y. M. Appeals disposed