P L D 1965 (W (PLP)

West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13(6) & 15(1) (b) Power conferred on Controller to strike of defence under S. 13 (6)‑‑Available to appellate authority under S. 15 (1) (b)‑Controller refusing to strike off defence despite non compliance by party with order regarding deposit of arrears of rent, etc.‑Order of refusal open to appeal under S. 15 (1) (b) and appellate authority competent to pass correct order striking off defence‑[Jalal Din v. Azizuddin P L D 1963 Lah. 436 reversed.] Muhammad Amin v. Sh. Jamshed Ali P L D 1963 Lah. 523 ref. JUDGMENT NAZEER AHMAD MAHMOOD, J.‑

This order relates to two appeals separately filed by Muhammad Husain and Bagh Din appellants against Meraj Din and Siraj Din respondents. They are directed against the order, dated the 11th of November 1961, of Malik Abdul Hamid, District Judge, Lahore, who, as an Appellate Authority, under the West Pakistan Urban Rent Restriction Ordinance, 1959, set aside the order, dated the 11 the of July 1961, of Mr. C. A. Rahman, Rent Controller, Lahore, and directed the striking off of the defence of the appellants made before the Refit Controller in reply to the applications of the respondents. The aforesaid appellate order arose, in the following circumstances.

2. Meraj Din and Siraj Din were issued a P. T. O. with regard to Building No. SE‑IV‑38‑S‑2, Montgomery Park, Lahore, by the Settlement Authorities under the order, dated the 31st of May 1960, of the Settlement Commissioner, Lahore. In their applications for ejectment of the appellants, Meraj Din and Siraj Din respondents averred that they had notified the appellants by an acknowledgment due registered letter that the property in dispute had been transferred to them and that since the appellants had not paid rent for the period from the 1st of June 1960 to the 15th of December 1960 despite notices to make payment of the rent due from them, they were liable to ejectment.

3. In their written statements the appellants contended that the applicants‑respondents had not served them with a notice within the meaning of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, that the portions occupied by the appellants had not been clearly described in the applications; that the rent demanded was not the same as fixed by the Rehabilitation Department; and that the order of transfer was being challenged before the Settlement Authorities. No specific plea was taken up before the Rent Controller that the relationship of landlords and tenants did not subsist between the parties.

4. On the 22nd of April 1961, the Rent Controller determined the approximate rent at the rate of Rs. 30 per mensem in the case of Muhammad Hussain appellant and Rs. 20 per mensem in the case of Bagh Din appellant and ordered the appellants to deposit arrears of rent by the 31st of May 1961 and the future monthly rent before the 5th of each month. The appellants failed to comply with this order, but when the case was taken up on the 31st of May 1961, it was adjourned to the 5th of July 1961 at the request of the counsel for the appellants for arguments as to whether the appellants were liable to ejectment. However, the case was not argued on the 5th of July 1961, and on the 11th of July 1961 the Rent Controller rather than strike off the defence of the appellants for their non‑compliance with his order dated the 22nd of April 1961 regarding the deposit of arrears of rent, etc., countermanded his order, observing that although the appellants had not made the necessary deposit in accordance with his order dated the 22nd of April 1961, the appellants' default was condoned in view of their objection that no valid notice regarding transfer of the property in question had been given to them, and the Rent Controller proceeded to frame the following issues:‑ (1) Whether the petitioners served a legal notice for the transfer of the property in dispute? (2) What is the monthly rent of the property in dispute? (3) Whether any revision petition against the petitioners is pending? If so, what is its effect? It may be mentioned here that the appellants had not availed 'themselves of the remedy of appeal with regard to the order dated the 22nd of April 1961 respecting the deposit of arrears of rent, etc.

5. The applicants‑respondents challenged the correctness of the above‑mentioned order of the Rent Controller by means of appeals to the District Judge. Learned District. Judge came to the conclusion that after having made the order for deposit of arrears of rent and subsequently found that this order had not been complied with by the appellants, in view of the mandatory requirement of section 13 (6) of the Ordinance the Rent Controller was bound to strike off the defence rather than cancel his previous order and frame the aforesaid issues.

6. Learned counsel for the appellants has urged before me that the order regarding striking off of the defence could be passed only by the Rent Controller and that the District Judge could not pass such an order, and in support of his contention he has relied on a judgment of Mr. Justice Muhammad Yaqub Ali Khan in case Jalal Din and another v. Azizuddin and another (P L D 1963 Lah. 436), wherein the learned Judge has expressed the view that "while it was within the competence of the Rent Controller to strike off the defence of the appellants for non‑compliance with an order for the deposit of arrears of rent, etc., this power did not vest in the learned District Judge as an Appellate Authority". Learned counsel for the respondents has, on the other hand, cited before me Muhammad Amin v. Sh. Jamshed Ali (P L D 1963 Lah. 523), which is a judgment by a Full Bench of this Court, of which Mr. Justice Muhammad Yaqub Ali Khan was also a member, wherein, while examining the question whether an order made by a Rent Controller under section 13 (6) of the Ordinance determining the approximate arrears of rent and monthly rent to be deposited by the 'tenant is an order from which appeal lies under section 15 (1) (b) of the Ordinance, on page 528 of the report, it was observed as follows:‑ "In the case of default in obeying a direction to deposit the approximately determined amount of future rent by the specified date, the Controller has no option but to order that the defence of the tenant, if he be a respondent, shall be struck off, and the landlord put in possession." It was further observed that such an order is an order "which has to follow the default as a necessary consequence, and being a final order under section 13 (6) is without a shadow of doubt open to appeal". Relying on this observation of their Lordships who constituted the majority of the Full Bench, learned counsel for the respondents has argued that if an order regarding the striking off of the defence is open to appeal on the ground that the striking off of the defence of the tenant has to follow as a necessary consequence on the non‑compliance with the order for the deposit of arrears of rent, an order whereby the Rent Controller has refused to strike .off the defence, despite holding that his order regarding deposit of arrears of rent, etc., had not been complied with, being an order under section 13 of the Ordinance, was open to appeal under section 15 of the Ordinance. He further urges that there would be no purpose in providing for the remedy of appeal if the appellate Court was not competent to interfere with a wrong order of the subordinate authority, whether it was for striking off the defence or the striking off of the defence has been refused by it.

7. It appears to me that the point involved in the arguments of the parties requires to be examined by a larger Bench of this High Court. Because, while on the one hand Mr. Justice Muhammad Yaqub Ali Khan has in an unqualified manner laid down in the case reported as Jalal Din and another v. Azizuddin and another that the power to strike off the defence vests only in the Rent Controller and not in the Appellate Authority, the majority view in Muhammad Amin v. Sh. Jamshed Ali is to the effect that striking off of the defence of the tenant has to follow as a necessary consequence on the non‑compliance with the order for deposit of arrears of rent and that such an order is open to appeal. The question whether the order refusing to strike off the defence is open to appeal was not before the Full Bench, and the Judges constituting it have not specifically dealt with it. But from their observation that in case of default in obeying the direction to deposit the rent by the specified date the Rent Controller has no option but to order the striking off of the defence, it would seem that if the Rent Controller failed to order striking off of the defence! in case of such a default, he would do something unwarranted in law, and since the order would be under section 13 (6) of the Ordinance, it would be open to appeal and the Appellate Authority could pass the correct order, namely, that of striking off of the defence. The position, however, remains that the Full Bench has not specifically dealt with the question as to what is to happen when the Rent Controller refuses to strike off the defence despite a non compliance with the order to deposit approximate arrears of red, and Mr. Justice Muhammad Yaqub Ali Khan has held that the power to order striking off of the defence vests only in the Rent Controller and not in the Appellate Authority.

8. In view of the rather uncertain position following from the two above‑mentioned judgments, I think it would be desirable to have a clear pronouncement by a Division Bench or a larger Bench as to whether an order of the Rent Controller refusing to strike off the defence is appeal-able and the Appellate Authority is competent to order the striking off of the defence. The records of the appeals are accordingly forwarded to the learned Chief Justice for passing the necessary orders. MUHAMMAD YAQUB ALI, J.‑

I must concede at once that I was not properly advised in expressing the view in Jalal Din an another v. Azizuddin and another (P L D 1963 Lah. 436) that the power conferred on Rent Controller to strike off defence of the respondent under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was not available to the appellate authority under section 15 (1) (b) of the Ordinance. Though the Ordinance does not contain provisions corresponding to section 107 (2) of the Code of Civil Procedure, namely that "the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein" Order XLI, rule 33 of the Code of Civil Procedure, which is applicable to appeals under section 15 (1) (b) of the Ordinance, inter alia lays down:‑ "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, . . . . . ". This point was not expressly raised before the Full Bench in Muhammad Amin v. Sh. Jamshed Ali (P L D 1963 Lah. 523), but as observed by my learned brother Nazeer Ahmad Mahmood, J. if an order striking off defence is open to appeal a fortiori the appellate authority is competent to pass a correct order in the Gases. The reference is answered accordingly.

2. S. A. O. Nos. 4 and 5 of 1962, will accordingly go back to our learned brother in Chambers for disposal on merits. A. R. SHEIKH, J.‑

I agree. Reference answered.