P L D 2002 Lahore 355 (PLP)

An ejectment petition was filed by the respondent No. l against the petitioner, inter alia, on the ground of default, claiming that the rent of premises is Rs.14,000 and since July, 1999, the petitioner has failed to pay the rent; besides, enhancement at the rate of ten per cent. was also claimed. The learned Rent Controller, vide order dated 11-9-2000, passed the following order:-- "Perusal of record transpires that respondent admitted about the payment of rent of Rs.7,000 in the month of June, 1999. As hire agreement also relates to fittings fixtures and amenities available in the rented premises and same has been admitted by the respondent so he is bound to pay the hire amount as well as rent amount as per agreements. Increase of 10% is also admitted on the part of respondent, therefore, respondent is directed to pay hire amount of Rs.7,000 for the month of June, 1999 and to pay previous arrears of rent etc. since July, 1999 till December, 1999, i.e. for five months at the rate of Rs.14,000 per month, in total Rs.70,000, since January, 2000 to September, 2000, at the rate of Rs.15,400 i.e. for 9 months in total Rs.1,38,600 deducting the amount already paid by the respondent subject to production of valid proof, till next date of hearing. He is further directed to pay future rent etc. at the same rate of Rs.15,400 till 15th of each month." Thereafter, an application was moved by the respondent No .l, that e petitioner has failed to comply with the order passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, and therefore, his defence be struck off. The learned Rent Controller, vide order dated 4-10-2000, passed the order as follows:-- "Perusal of record transpires that order was passed on 11-9-2000, this order has not been challenged by the respondent in any way, receipts produced by the respondent are not in compliance of order dated 11-9-2000, hence respondent miserably failed to pay rent in accordance with order dated 11-9-2000. As respondent miserably failed to comply with order of Court so his defence is liable to be struck off, and same is hereby struck off. This ejectment petition is hereby accepted. Respondent is hereby directed to vacate the suit premises within four months and hand over the vacant possession to the petitioner, otherwise petitioner shall be entitled to get vacated the suit premises through execution. The petitioner is further entitled for recovery of previous arrears of rent as per order dated 11-9-2000, deducting the amount already paid by the respondent to the petitioner, subject to production of valid receipts. Petitioner is further entitled for future rent at rate of Rs.15,400 till vacation of suit premises." Aggrieved, the petitioner filed an appeal, which too has been dismissed, vide order dated 9-4-2001.

2. Learned counsel for the petitioner, has conceded that the possession of the property has been delivered to the respondent No.

1. However, his grievance is that no final determination of rent has been made by the Rent Controller, according to the provisions of section 13(6), therefore, the direction issued by the Rent Controller, as affirmed in appeal, that the petitioner is liable to pay the arrears of rent as also the future rent, is illegal and unlawful.

3. Conversely, the learned counsel for the respondent No. 1, has supported the orders.

4. I have heard the learned counsel for the parties and find, that according to the provisions of section 13(6), when the tentative order passed by the Rent Controller, has not been complied with, only option left with the Rent Controller is to strike off the defence of the petitioner, and direct his eviction. However, while doing so, the Rent Controller, has no jurisdiction to pass a recovery order for the arrears or the future rent, because according to the first part of subsection (6) of section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, the Rent Controller, could only approximately fix the rent, and direct the tenant to make such payment. If the tenant makes default in the compliance of such order, his defence is liable to be struck off and the landlord should be put in possession of the property without any further proceedings in the case. However, according to the second part of this subsection, the Rent Controller, shall finally determine the amount of the E rent due from the tenant, and after determination, and then can direct that the same may be paid to the landlord. This stage of final determination, under the second part of subsection (6) of section 13, would only reach, if the determination has been made on the basis of the evidence on record. However, where the defence has been struck off under first part of subsection (6), the stage does not arrive, and therefore, the Rent Controller, has no jurisdiction to determine the final amount due from the tenant. Therefore, .the impugned orders of the forums below, in directing the petitioner to make the payment of rent, mentioned in the order of the Rent Controller, are patently illegal and without jurisdiction, thus, - these are declared as without lawful authority. It may be pertinent to state here, that there is further dispute between the parties, i.e. whether the rate of rent of the lease premises is Rs.7,000 only and the further amount of Rs.7;000, which is the rental for the fittings and fixtures, agreed upon between the parties, under a separate hire agreement can form part of the rent, for which the Rent Controller, could make any final determination, under the second part of subsection (6) of section

13. However, with a view that no prejudice is caused to either of the parties, in case the respondent, seeks the recovery of the amount of rent of the lease premises or of the fittings arid fixtures, through appropriate proceedings the matter is not further dilated upon.

5. In the light of above, this petition is allowed and the impugned orders are set aside. Q,M.H./M.AX./A-427/L Petition allowed.