2021 PLP 678 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Muhammad Ali, the petitioner, by institution of this writ petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has challenged the judgment and order dated 26.11.2018 of the learned Rent Controller/Civil Judge-IX, and that of the learned Additional District Judge-V, Nowshera dated 23.04.2019, by which, the application for ejectment etc. of respondent No.1 was allowed eviction against him.

2. Requisite facts for disposal of the instant petition are that respondent No.1 has filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 against the petitioner for eviction and recovery of rent since 2008 at the rate of Rs.20000/- per month of the rented premises, description of which, was given in para No.1 of the application, on the ground of default in payment and personal need, with an added prayer for permanent injunction against the petitioner that he be restrained from making any kind of improvement in the rented premises. The application was contested by the petitioner on various legal and factual objections.

3. Arguments heard and record perused.

4. Perusal of record reveals that after institution of the application against the petitioner, on 20.04.2017, the learned Rent Controller, in presence of both the parties, passed an order for payment of monthly rent, by which, the petitioner was directed to deposit the monthly rent at the rate of Rs.8000/- per month before the 14th day of each month. The petitioner has assailed the order of the learned Rent Controller through revision petition, which was dismissed on 18.01.2018. Record further transpires that the order, under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, was passed on 20.04.2017, which was not complied with, as such, the learned Rent Controller vide order dated 26.11.2018 has struck-off the defense of the petitioner and directed him to vacate the rented premises within 14 days and to handover the vacant possession to respondent No.1. The petitioner being not happy with the order of the learned Rent Controller has assailed the same by filing rent appeal No.02/RCA/2018, which was dismissed by the learned appellate Court below through the impugned judgment and decree dated 23.04.2019.

5. Today, the learned counsel for the petitioner has focused that the rented property being not situated in urban area; and that the petitioner is running a factory, therefore, the learned Rent Controller could not exercise the jurisdiction to entertain the petition against him. He also questioned the impugned order, on the ground, that the learned Rent Controller could only determine the relationship between the parties and the order for ejectment of the tenant, however, for recovery of outstanding rent against the tenant, the landlord would have to approach to the civil Court, thus, the order passed against the petitioner being coram non judice is perverse, against the law and lawful authority, as such the same is not sustainable.

6. Record further reveals that in para No.2 of the application, respondent No.1 has given the details of creation of tenancy which was admitted as correct by the petitioner in his written reply. It is pertinent to mention that not only the relationship of the landlord and tenant was admitted, but the petitioner has also not denied nonpayment of rent since 2018. It is not disputed that after filing of ejectment application, the petitioner appeared before the learned Rent Controller and in his presence, order was passed on 20.04.2017, by which, he was directed to pay the monthly rent before 14th of each month.

7. Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 is reproduced as under: - "In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the [fifteenth day of each month], the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put in to possession of the property without taking further proceedings in the case. [The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.]".

8. The plain, unambiguous and clear wording of the above-mentioned provisions is open only to one interpretation that whenever the tenant would be directed to pay the monthly rent before 15th day of each month, the tenant is required to comply with the directions. The penal clause of section 13(6) has also been provided by the Legislature that in case of default, not only his defense shall be struck-off but possession of the rented premises shall also be ordered to be taken from him. When the petitioner has admitted his relationship and has not disputed the factum of outstanding rent in such an eventuality, he is estopped to challenge the impugned order, which is the result of his own default due to noncompliance of deposit of monthly rent. Reliance is placed on the principle laid down by Hon'ble Supreme Court in Khawaja Muhammad Mughees's case (2001 SCMR 2020) in which it was held by their Lordships that:- "In this view of the matter, the default on the part of the petitioner stands established. Furthermore, he had failed to comply with the interim order dated 3-10-1997 passed by this Court whereby he was required to deposit rent for the month of October, before the 10th of November, 1997. There is no explanation on behalf of the petitioner in this respect. In this view of the matter, his defence was liable to be struck off as no infirmity or lacuna, whatsoever, appears in the impugned order, the leave to refused. However, six months' time is allowed to the petitioner to put the landlady in vacant possession of the property in dispute. This order will be subject to the payment of rent, current charges of electricity and gas and clearance of arrears bills of electricity within a month." Next, in para No. 2 of the ejectment application it was averred that a plot was given to the petitioner by respondent No. 1 and thereafter the petitioner has installed chips machinery in the plot, the petitioner in reply has admitted it as correct. Thus, when the rented premises were converted or any machinery was installed in the shape of factory, rented out to him, the same would fall within the definition of building or rented land. In the case of Noor Muhammad Khan v. Haji Muhammad Ali Khan and 24 others PLD 1973 SC 218 it was held that "where demised premises at the time of creation of lease, consisted of a piece of land, subsequent construction of a Cinema thereon will not oust the jurisdiction of the Rent Controller". Likewise, in case of Muhammad Sharif v. Saeed Akhtar Hussain and 8 others PLD 1985 Lah. 365 wherein it was held that "if a property was not a factory at the time of creation of its lease, subsequent utilization thereof for Industrial purposes will not oust of the jurisdiction of the Rent Controller."

9. In so far as, the second objection for recovery of outstanding rent is concerned, admittedly, he remained in possession of the rented premises for the entire period and with specification of time, respondent No.1 has filed the application, on the ground of default in payment of the monthly rent against him and when he was directed to pay the tentative rent but his failure resulted into the impugned order, by which, he being considered as defaulter was ordered to be evicted from the rented premises could not challenge the jurisdiction of the Rent Controller regarding the payment of outstanding amount. By no stretch of imagination, the jurisdiction of the learned Rent Controller could be curtailed only to the extent of passing an ejectment order. The learned Rent Controller is vested with the powers not only to determine the relationship of the parties, such as, landlord and tenant, but he has got jurisdiction to order the recovery of outstanding rent against the tenant, if any, besides the other powers given to the Rent Controller as provided in the ibid Ordinance. Reliance may be placed on the case titled Muhammad Hanif v. Ch Sami Ullah (2000 MLD 1345) in which it was observed that: - "Even otherwise, the objection of notice may be relevant on merit when the issue of default under section 13(2)(1) of the Ordinance was to be considered. It has nothing to do with the passing of the order for the deposit of rent under section 13(6) of Ordinance. Once the learned Rent Controller found that the tenancy was admitted, the jurisdiction was not disputed, he was competent to pass order for deposit of arrears of rent and future rent .as done in this case. The appellant was duty bound to make necessary compliance to avoid consequential event. The objection is, therefore, without substance."

10. Moreover, it was very strange that even today, learned counsel representing the petitioner has tried to challenge the jurisdiction of the learned Rent Controller and has not given any justification for non-payment and non-compliance of the order of the learned Rent Controller, there is no force in the arguments of the learned counsel for the petitioner and the orders of the learned Rent Controller and that of Appellate Court are in consonance with the provisions of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The petitioner has not been able to point out any jurisdictional defect or any illegality in the impugned order, therefore, the instant petition is dismissed, with no order as to cost. MQ/23/P Petition dismissed.