P L D 1966 (W (PLP)

Respondent in person. Date of hearing: 21st June 1966. Facts giving rise to the present appeal under section 15 (4) of the West Pakistan, Urban Rent Restriction Ordinance 1959 are that one house bearing Municipal No.4‑1/10, Shar‑e‑Liaqat, Quetta was transferred to the appellant (Khalifa Abdur Rehman) on 7‑12‑

60. This house at the relevant time was occupied by the respondent (Hakim Muhammad Din Zafar) and by operation of law he became tenant 'of the appellant. An application under section 13 of the Ordinance was filed by the appellant on 28‑6‑61 for the eviction of the respondent and the final orders in this respect were passed by this Court on 8‑7‑

64. During the pendency of these proceedings, the respondent had deposited the rent regularly. After the final order was passed by this Court on 8‑7‑64, the appellant withdrew this amount under the orders of the Rent Controller. Thereafter the Settlement Commissioner cancelled the P. T. D. issued in favour of the appellant and transferred this house to respondent by his order dated 30‑10‑

64. An application was filed by the respondent on 10‑11‑64 for the refund of the rent amount deposited by him and withdrawn by the appellant. His request was partially allowed by the Rent Controller, on 3‑3‑65 and on appeal the District Judge passed the impugned order on 25‑5‑65 directing the Rent Controller to obtain the refund of the entire amount withdrawn by the appellant and deliver the salve to the respondent.

2. The Rent Controller while dealing with the application filed on behalf of the respondent for refund of the rent amount deposited by him and which was withdrawn by the present appellant, had observed that the entire amount of rent deposited by the present respondent had been withdrawn by the present appellant excepting the amount of Rs. 114 "which remain unpaid on the date of filing the application. I have considered the contention of the parties and am of the opinion that as the P. T. D. of Khalifa Abdur Rehman has been cancelled, the appellant is entitled to the recovery of rent. I, therefore, order that the amount of Rs. 114 lying in the court may be refunded back to the applicant. The applicant however should take separate legal action for the recovery of rent which has been paid to Khalifa Abdur Rehman". The District Judge, in appeal, had observed that the Rent Controller had no powers to grant permission to the landlord to withdraw the rent amount deposited by a tenant during the pendency of the proceedings and further that this amount could be delivered after the conclusion of the proceedings. He was therefore of view: "Thus the landlord was not competent to part with the deposited money which was obtained as a security

It is therefore his own duty and fundamentally his duty to get back the amount which was wrongly delivered and return it to the depositor. The power to give also carries the power to withdraw. The order directing the applicant to knock at other doors is based on a misconception of law. For the reasons stated above I accept the appeal. The learned Rent Controller will obtain the refund of the amount and deliver it back to the appellant‑applicant."

3. While disputing these two orders it was urged on behalf of the present appellant that both the Rent Controller and the first appellate authority had, no powers to pass these orders and direct for the refund of the amount for the reason that no proceedings were pending before the Rent Controller after the final order for eviction of the respondent was passed by this Court on 8‑7‑

64. He had further urged that the rent received by a transferee is not refundable after his P. T. D. was cancelled and if different view is taken the procedure adopted in this particular case is illegal. According to him, powers of the Rent Controller are very much limited and these are mentioned under sections 4, 19 (10), 12 and 13 of this Ordinance. Relying upon these provisions of this Ordinance, it was urged before me that there was no provisions in this Ordinance empowering the Rent Controller to direct for the refund of the rent amount withdrawn by the landlord. This argument, apparently, is without merits. Sub section 6 of section 13 of this Ordinance empowers a Rent Controller to direct a tenant to deposit all the arrears of rent in addition to future rent. This subsection further empowers him to "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". I agree with the District Judge that when a Rent Controller has powers to direct the tenant to deposit the rent and pay the same to the landlord he has powers to direct the landlord to refund the amount if he is paid in excess. For example if there is any mistake or miscalculation the amount could be settled and if the landlord is paid in excess he could certainly be directed by the Rent Controller to refund the amount paid in excess by the tenant. Subsection (8) again appears relevant and is reproduced below: "The Rent deposited by the tenant under this section shall subject to the final determination of rent as payable by the tenant be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller." Its perusal clearly shows that the Rent Controller has powers to allow the landlord to withdraw the amount at earlier stage i.e., before the proceedings are concluded. But I agree with the appellant that he is entitled to the rent of this house till his. P.T. D. was cancelled. The cancellation order does not show that it was with retrospective effect. In view of this position the landlord i.e., the present appellant is entitled to the rent. Section 2 (c) of this Ordinance defines the landlord as a person "for the time being entitled to receive rent in respect of any building. .." This house was originally an evacuee property and it was transferred to the appellant and at the relevant time it was in the occupation of the respondent. Under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 respondent was deemed to be a tenant of the transferee i.e., the present appellant on the same terms and conditions as before. It is therefore evident that the present appellant was entitled to the rent till his P. T. D., was cancelled. I therefore agree with the appellant that he was entitled to receive rents so long he was landlord. It was further urged on his behalf that he had paid the full price of his house and paid all taxes in respect of this house and as such was entitled to receive the rent from his tenants. I also agree with him that the house in question has not been transferred to respondent with retrospective effect when the P. T. D. in favour of the appellant was cancelled on 30‑10‑

64. For all these reasons I allow this appeal and set aside the order passed by the first appellate court (District Judge, Quetta) on 25‑5‑

65. Respondents to bear costs of the appeal. K. B. A. Appeal accepted.