P L D 1978 Karachi 926 (PLP)

"In these circumstances it was not open to the applicant to have refused the offer at the rate of Rs. 40 p.m. subject to its final adjudication by the authorities. It would thus show that it was not a wilful default on the part of the opponent to have failed to pay the rent claimed by the applicant in this application and the opponent cannot therefore be penalized for such a default which obviously occasioned mainly due to the obstinate attitude of the applicant. In this view of the matter, I would hold that the opponent have not committed any default within the meaning of the Ordinance." While dismissing the application on merits, the learned Rent Controller, however, directed the respondent tenant to pay to the appellant‑landlord amount of Rs. 600 being the difference in the rent tentatively fixed by him at Re. 40 p.m. and finally determined at Rs. 50 p.m. in the following words;

"It may be mentioned here that I have tentatively fixed the rent of the premises at Rs 40 p.m. subject to the final adjudication of the matter. It has now been proved on record that the assessment has finally been made at Rs. 50 p.m. I would therefore direct the opponent to pay the difference right from 1‑7‑1961 to 31‑7‑1966 amounting to Rs. 600 before the 15th of September 1966 failing which the opponent shall be liable to eviction." The respondent, however, failed to pay the difference of Rs. 600 to the appellant before 15‑9‑1966. Consequently, on 27‑9‑1966, the appellant applied for execution of the order dated 26‑8‑1966 of the Rent Controller and sought ejectment of the respondent in terms of the penal clause imposed by the Rent Controller. The respondent contested the execution application and urged firstly that the respondent had tendered the amount to the appellant but the latter did not accept it ; secondly, that the direction of the Rent Controller calling upon the respondent to pay the difference of Rs. 600 failing which the latter would be liable to eviction was only a direction and not an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, and, therefore, no ejectment of the petitioner could be ordered in the execution application. The learned successor Rent Controller overruled the objections and allowed the execution by his order dated 23‑2‑1968 holding that the order of his predecessor had to be complied with and since the respondent had failed to pay the amount before the specified date, he had to be evicted. Being aggrieved by this order, the respondent went in appeal which was allowed by the learned Additional District Judge who held that the main application having been dismissed on merits, the Rent Controller thereafter became functus offcio and could not impose penalty clause calculated to result in ejectment of the respondent. As to the realization of the difference of rent finally determined by the Rent Controller, the learned Additional District Judge held that this amount could be recovered through execution proceedings under section 17 or the Ordinance with the help of civil Court with jurisdic tion but no ejectment could take place in these proceedings and the default could be made a subject‑matter of another ejectment case under section 13 of the Ordinance. Being aggrieved by the order of the learned Additional District Judge, the appellant‑landlord has filed this IInd appeal. The learned counsel for the appellant in support of his appeal first contended that no appeal was filed by the respondent against the order dated 26‑8‑1966 passed by the learned Rent Controller directing the respondent to pay Rs.600 before 15‑9‑1966, being the difference between the rent tentatively fixed earlier in the proceedings and finally determined by the learned Rent Controller. Consequently, the order became final and penalty clause imposed by the Rent Controller, namely, that the respondent would be liable to eviction if he failed to pay the amount by the specified date, became operative and executable as a decree by the civil Court under section 17 of the Ordinance. Consequently, the learned Civil Judge rightly ordered eviction of the respondent by his order dated 23‑2‑1968 passed in execution proceedings holding that the respondent had failed to pay the stipulated amount before the date specified in the order dated 26‑8‑1966 and as he could not go behind the above order, except when it was without jurisdiction which it was not, he had to enforce the penalty clause. Consequently, the learned Additional District Judge when hearing the appeal arising out of the order dated 23‑2‑1968 passed m execution proceedings was not hearing it under the Ordinance but under the Code of Civil Procedure and, therefore, could not examine the validity of the order dated 26‑8‑1966 passed by the Rent Controller which had become final as no appeal had been filed against it. The learned counsel next contended that after the amendment made by the Ordinance XXX of 1960 in section 13 of the West Pakistan Urban Rent Restriction Ordinance, it was mandatory on the Rent Controller to determine the final rent and direct its payment and the respondent having failed to .pay, the learned Rent Controller was competent to order his ejectment as otherwise the object of the amendment would be frustrated. Mr. Mubarak, the learned counsel for the respondent, in opposing the appeal contended that ejectment of the respondent‑tenant could be ordered in the main application under section 13(2) of the Ordinance on his being proved to have committed default in payment of rent to the landlord, or if he committed default in complying with the order under section 13(6) of the Ordinance made by the Rent Controller to deposit the arrears of rent. In the instant case, the learned Rent Controller having dismissed the main application by holding that the respondent‑tenant had committed no default and there being no question of non‑compliance with the interim order under section 13(6) of the Ordinance, ejectment of the respondent could not be ordered in the execution proceedings by the successor Rent Controller by enforcing the direction as a penal clause which could not be legally imposed. The learned counsel next contended that the direction of the Rent Controller in his order dated 26‑8‑1966 was to the following effect :‑-- "I would direct the opponent to pay the difference of Rs. 600 before 16‑9‑1966 failing which opponent shall be liable to eviction." The above direction, according to the learned counsel, only gave a fresh cause of action to the appellant‑landlord and in so far the Rent Controller himself was concerned, he could decide only on the existing and not future cause of action. In support, he relied on the words used in the order namely "shall be liable". The learned counsel next contended that reading section 13(6) of the Ordinance, it would be noticed that tentative rent fixed under the section has to be "deposited" and failure to deposit results in mandatory ejectment of the tenant, whereas when rent is finally determined under the Ordinance XXX of 1960 amending section 13(6) of the Ordinance, it is to be "paid" to the landlord which shows that such payment is for the benefit of landlord and the failure to make such payment by the tenant would not automatically result in his ejectment but would give a fresh cause of action to the landlord to file ejectment proceedings against the tenant. Having considered the arguments advanced by both the learned counsel, I find that the contentions raised by the learned counsel for the respondent ate not without force. Survey of the, relevant provisions of the Ordinance would show that ejectment of the respondent could be ordered either under section 13(2) o f the Ordinance after being proved that he committed default in paying real of the appellant‑landlord or (ii) if he failed to comply with the interlocutory order under section 13(6) of the Ordinance directing the tenant to deposit) the arrears of rent. In the case in hand, there is no allegation of failure on the part of the respondent to comply with any interim order under section 13(6) made by the Rent Controller. As to the ejectment of the tenant under section 13(2) of the Ordinance on the ground of his failure to pay rent, the learned Rent Controller came to a categorical finding that the respondent had committed no default and went even to the extent of holding the applicant himself responsible in refusing to accept the rent tendered by the respondent and dismissed the application. Having thus dismissed the application on merits by holding that the respondent‑tenant had committed no default, the learned Rent Controller could not thereafter direct the ejectment on any other ancillary ground no provided for in the Ordinance. Consequently, any direction calculated to result in ejectment on such ancillary ground was beyond the jurisdiction of the learned Rent Controller and therefore could not be implemented in the execution proceedings, as has been done in this case by the successor Rent Controller m his order dated 23‑2‑1968 holding to the effect that he could not go behind the order of his predecessor on any account and was duty bound to enforce the penal clause. It is true that under the Ordinance XXX of 1960 amending section 13(6), the Rent Controller is to finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord subject to the adjustment of the approximate amount deposited by the tenant. It, however, does not ‑automatically follow fro it that the failure of a tenant to pay the difference of rent would automatically result in his ejectment as the Ordinance itself does not provide as to what is to happen in case the direction is not complied with as shown by the relevant provision which is reproduced as under :‑

"The Controller shall finally determine the amount of rent due from the tenant and direct that same be paid to the landlord, subject to adjust ment of the approximate amount deposited by the tenant." Normal rule of construction is that when the statute does not provide for consequences of failure to comply with the direction contained in it, such direction is to be interpreted as directory and not mandatory and no grounds have been made out to depart from the normal rule of construction. Also, it is an admitted position that no application under section 13(6) was filed by the appellant to enforce the direction. Further, even the direction given by the learned Rent Controller in his order dated 22‑8‑1966 does no show that, failure on the part of the respondent to pay amount was intender to automatically result to his ejectment after the learned Rent Controller had become functus officio after dismissing the main application. On the other hand, direction given by the learned Rent Controller would appear to give a fresh cause of action to the landlord to apply for the ejectment of the respondent in case the latter failed to pay the stipulated amount before the specified date. Accordingly, the learned Additional District Judge was not wrong in holding that the amount of Rs. 600 could be recovered by the appellant‑landlord in execution proceedings with the aid of the civil Court but no ejectment of the tenant could be ordered after the main application under section 13(2) has been dismissed by the learned Rent Controller. For the aforesaid reasons, I find no merit in this appeal which is dismissed with costs. Appeal dismissed.