1984 PLP 108 (CLC)

Wahid Bux Baloch for Respondent. Date of hearing : 24th March, 1981. This appeal is directed against the order of the Rent Controller, Jacobabad, dated 21st November, 1979 whereby the defence of the appel lant was struck off on account of non‑compliance of tentative rent order, dated 28th February, 1973. By the aforesaid order the Rent Controller had directed the appellant to deposit the arrears of rent upto January, 1973 before 1st April, 1973 and the future monthly rent was ordered to be deposited in Court regularly before 15th of each month. It is not dis puted that the rent for the month of February, 1973 was not deposited until 30th March, 1973 when an appeal was preferred before the District Judge, Jacobabad. Although such an appeal was not competent in law but on 3Ist March, 1973 the learned District Judge, Jacobabad, while admitting the appeal to regular hearing granted stay with regard to only the arrears of rent upon furnishing security by the appellant. It appears that in spite of this order of District Judge, dated 31st March, 1973 no rent was de posited and it was only on 5th April, 1973 that the appellant approached the Court of the Controller with an application seeking permission to deposit rent in Court as ordered by the District Judge, Jacobabad. On this application the Rent Controller passed the following orders; "Keep it on record. Applicant/Opponent is allowed to deposit the future rent as per the orders of learned District Judge." The appeal before the District Judge, Jacobabad ultimately came to be dismissed, on 5th May, 1973 when on an application under section 13 (6) filed by the respondent before the District Judge, he struck off the defence of the appellant and ordered him to put the respondent in posses sion of the premises. A second appeal was then filed by the appellant to this Court against the above order of District Judge which was disposed of by my learned brother Zafar Hussain Mirza, J. on 5th May, 1979. The learned Single Judge in his order held that although the appeal filed by the appellant before the District Judge, Jacobabad was not maintain able but in view of the fact that the learned counsel for the respondent had conceded before him that the District Judge, Jacobabad was not competent to strike off the defence of the appellant in absence of an order under section 13(6) of the West Pakistan Urban Rent Restriction Ordi nance, 1959 having been passed by the District Judge himself, the learned Single Judge allowed the appeal of appellant and remanded the case back the Controller with the direction that the application under section 13 (6) tiled by the respondent before the Rent Controller shall be treated as pending ‑and disposed of the same according to law. After receiving the case back from this Court the Rent Controller recorded the evidence on the application under section 13 (6) of Ordinance VI of 1959 and after hearing the parties struck off defence of the appellant in the case and ordered him to put the respondent in possession of the premises. Mr. Ahmedullah Farooqui, the learned counsel for the appellant has raised the following contentions before me; (a) That the learned Single Judge, while remanding the case back to :he Rent Controller, on 5th May, 1979 was under the impression that the application under section 13(6) of the Ordinance was still pending before the Rent Controller while in fact, the application was withdrawn by the respondent when his Advocate made statement before the Controller on 2nd May, 1973 with drawing the same. (b) That after remand of the case by this Court the counsel for respondent made statement before the Rent Controller in view of the order of this Court, dated 5th May, 1979 withdrawing his earlier statement, dated 2nd May, 1973 which was wrongly accepted by the Controller and thus treated the application as pending. On the above premises it is contended by the learned counsel that there was no application under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959 pending before the Controller on which orders for striking off the defence of the appellant could be passed. The contentions of the learned counsel are wholly misconceived. Firstly no objection was raised by the appellant before the learned Single Judge when order, dated 5th May, 1979 was passed remanding the case to Con troller, that the application under section 13(6) of Ordinance VI of 1959 stands disposed of as withdrawn. The learned Single Judge gave a specific direction to the Rent Controller to treat the application of the respondent filed under section 13(6) of Ordinance VI of 1959, as pending and decide the same in accordance with the law. Apart from it the contention of the learned counsel otherwise do not merit any considera tion. The order of the District Judge dismissing the appeal of appellant and striking off his defence in the case was passed on the application of respondent under section 13(6) of the Ordinance. The effect of setting aside the order of District Judge, by the learned Single Judge was that the application under section 13 (6) moved before the District Judge for striking off the defence of the appellant stood revived as a result of setting aside of that order. Even otherwise the controversy with regard to the default in respect of the deposit of rent for the month of February, 1973 was very much within the knowledge of the appellant and this was the only point which was agitated before the District Judge, Jacobabad, as well as before this Court. The appellant after remand of the case pro duced evidence to disprove the default. In these circumstances, even if it is assumed that there was no specific application before the Controller in this regard it was of no significance as no prejudice is shown to have been caused to the appellant in the absence of such an application. The only explanation offered by the appellant before the Rent Controller with regard to default in respect of the rent for January, 1973 was that the appellant was preferring an appeal and, therefore, it was not necessary for him to deposit rent in Court. This defence was rightly not considered by the Rent Controller as sufficient so as to absolve the appellant from the consequences of default. The reason that the appellant was contem plating to prefer an appeal before the District Judge against the tentative rent order could hardly be considered as a defence sufficient to relieve the appellant from the consequences of non‑compliance of the order of the, Rent Controller. In fact on 30th March, 1973 when the appeal was filed' before the District Judge, Jacobabad, the default in respect of rent for the month of February, 1973 had already occurred. In spite of that when a stay was granted, on 31st March, 1973 until 5th April, 1973 no deposit admittedly was made by the appellant for the month of February, 1973. In these circumstances the order of the Rent Controller striking off the defence was wholly justified. I accordingly see no reason to interfere with the order passed by the Rent Controller. The appeal is consequently dismissed with costs, but the appellant is allowed four months time to vacate the premises subject to his depositing monthly rent for this period in Court. M. Y. H. Appeal dismissed.