1979 PLP 794 (CLC)

M. D. Tahir for Appellant. The appellant in this second appeal is a tenant, namely, Muhammad Sultan who has been ordered to vacate a shop owned by the respondent, Muhammad Riaz.

2. The order under appeal was made on an application for ejectment filed by the respondent. In that application the Rent Controller passed an orders on 17th September, 1978, under the first part of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the said Ordinance, directing the appellant to deposit Rs. 1,450, as arrears of rent before the 16th October, 1978, and future rent for each month before the 15th day of the next month. The appellant deposited the arrears of rent in time but rent for the month of September. 1978, which was to be deposited before 15th October, 1978, was deposited by him on 30th October, 1978. Since the appellant did not make timely deposit of rent for the month of September, 1978, the learned Rent Controller struck off his defence, under the second part of subsection (6) of section 13, of the said Ordinance, and ordered him to vacate the disputed shop. The appellant challenged the order of his eviction by means of an appeal to an Additional District Judge, but without success. Fence, this second appeal.

3. Learned counsel for the appellant contended that the order of the learned Rent Controller regarding the deposit of future rent was vague inasmuch as it was not clearly pointed out therein that rent for the month of September 1978, would be treated as future rent and, therefore, it was not a fit case for striking of the defence of the appellant due to his failure to deposit rent for the said month before the 15th October 1978. He relied on Iltaf Husain v. Talib Husain (P L D 1977 Lab. 110), Fazal Haque v. Abdul Latif Akhund (P L D 1975 Kar. 681), and Muhammad Ashraf v. Muhammad Anwar (P L D 1975 Pesh. 254), to support his contention.

4. I am unable to agree with the learned counsel for the appellant that there was an ambiguity in the order of the learned Rent Controller regarding the deposit of rent. The rate of monthly rent as alleged by the respondent was .Rs. 50, whereas the appellant had urged that it was Rs.

30. The learned Rent Controller, therefore, tentatively fixed the rate rent at Rs. 50, for the purpose of making an order under subsection (6) of section 13 of the said Ordinance and directed the appellant to pay arrears of rent amounting to Rs. 1,450, with effect from April, 1976, because according to the respondent the appellant had not paid rent since April, 1976, and the appellant had not produced any receipt regarding the payment of rent in respect of which the default had been alleged by the respondent. The arrears were calculated at the rate of Rs. 50 per mensem. It would, therefore, follow that the arrears of rent were for a period of 29 months. This period when reckoned from April, 1976, ended with August, 1978. The order relating to the deposit of rent was made before the month of September, 1978, had run out, the precise date of order being 17th September, 1978. The appellant did, in fact. treat rent for the month of September as future rent because he deposited it separately on 30th October, 1978. If he was of the view that it was covered by the arrears of rent he would not have deposited it after` the deposit of arrears on 16th October, 1978. Thus, the order of the learned Rent Controller left no room for doubt that rent for the month of September, 1978, was not included in the arrears of rent, and the fact that the appellant had deposited the said rent separately from the arrears of rent makes it abundantly clear that the appellant too had no doubt in this behalf. The appellant cannot, therefore, avoid the legal consequences of his failure to comply with the direction of the learned Rent Controller regarding the deposit of rent for the month of September, 1978.

5. Now, 1 take up the authorities cited by the learned counsel for the appellant. The case of 1ltaf Hussain is in respect of a default referred to in clause (i) of subsection (2) of section 13 of the said Ordinance and not a de fault as contemplated by subsection (6) thereof. As for the case of Muhammad Ashraf its facts and circumstances are different from those of the case in hand. What happened in Muhammad Ashraf's case was that the tenant had deposited rent for the month of September, 1973, on 22nd October, 1973. although, in terms of the direction of the learned Rent Controller, it was to be deposited by 15th October, 1973. The tenant was, however, not taken to task for the aforesaid lapse on his part because the landlord bad given up his claim for the recovery of rent for the month of September, 1973. The relevant observations made in that case read thus: "Mr. Karimullah Khan Durrani, the learned counsel for respondent, however, laid stress on the default of appellant for not paying the rent. ' , of September within time. But he seems to forget that his client had, on his own volition, given up in the Court of Controller his claim for the recovery of due rent and thus rendered the proceedings infructuous, To put it somewhat differently, after respondent gave up his claim in the Court of Collector on 24-7-1973, the latter('s) very authority in law to adjudicate would. in view of the Full Bench judgment cease to exist. And. thereafter, there being nothing left in the field by way of `proceedings' subsection (6) of section 13 of Ordinance, would have no application whatever and the impugned order passed thereunder would be without jurisdiction." As regards, the case of Fazal Haque, it is also distinguishable on facts. In that case the Rent Controller had directed the tenant to deposit future rent before 15th day of each calendar month but rent for the month of February 1968, was deposited on 15th March, 1968. It was explained by the tenant that one day's delay in the deposit of rent had occurred due to his illness. The delay on his part was, therefore, condoned. In the present case, however, there is a delay of 15 days and no explanation has been given except that the appellant had not properly understood the order of the learned Rent Controller. Admittedly, he did not make any application seeking clarifica tion of that order. I have already noted that there could be no bona fide mistake in understanding the order regarding the deposit of rent. The case of Fazal Haque as also those of Iltaf Husain and Muhammad Ashraf are, therefore, of no avail to the appellant.

6. Another contention raised by the learned counsel for the appellant was that the default attributed to the appellant was not actionable inasmuch as he could deposit rent for the month of September before the expiry of 60 days from the end of that month and since he deposited rent for the said month within the above period of 60 days his ejectment could not be ordered by striking off his defence. In this connection, learned counsel for the appellant placed reliance on the provisions of clause (i) of subsection (2) of section 13 of the said Ordinance. The argument advanced by the learned, counsel for the appellant overlooks a clear distinction between the default alluded to in clause (i) of subsection (2) of section 13 and the one dealt with in subsection (6) of section

13. The default as contemplated by clause (i.) of subsection (2) is the one which constitutes cause of action for seeking ejectment of a tenant and if, after the landlord has led evidence to establish such default and the tenant has also produced evidence in rebuttal thereof by 'a exercising his right of defence, the default is proved, the ejectment of the tenant is ordered under clause (i) of subsection (2). As against this, if there is a default as envisaged by subsection (6), the tenant is not allowed to exercise his right of defence and without going into the question of default constituting the cause of action or any other plea raised by the landlord for seeking ejectment of the tenant, his ejectment is ordered summarily by striking off his defence. Such an order of ejectment is made under subsection (6). The grace period allowed under subsection (6) for deposit of monthly rent is of 14 days inasmuch as rent for each month is required to be deposited before the 15th day of the succeeding month. There is thus no merit in the argument of the learned counsel for the appellant that the grace period of 60 days provided in clause (i) of subseccion (2) of section 13 was available to the appellant for making deposit of monthly rent under subsection (6) of section 13.

7. One more point canvassed by the learned counsel for the appellant was that the learned Rent Controller committed an illegality in ordering the deposit of rent at the rate of Rs. 50 per mensem although, according to the appellant, the monthly rental was Rs.

30. As indicated above, controversy relating to the rate of rent was taken due notice of by the learned Rent Controller while making order regarding the deposit of rent and he approximately fixed the rate of rent at Rs. 50 per mensem. This he could do under subsection (6) of section 13 of the said Ordinance in view of the dispute between the parties in respect of the rate of rent. The order of the learned Rent Controller was of provisional nature and the rent actually payable by the appellant to the respondent had to be finally determined by him on the conclusion of the ejectment proceedings. Therefore, if the Rent Controller had eventually found that the correct rate of rent was Rs. 30 per mensem he would have ordered the refund of such amount of rent deposited by the appellant as was not found due from him by calculating the rent due at the rate alleged by hiin. No legitimate exception can, therefore, be taken to the order of the deposit of rent on the ground that the rent was ordered to be deposited at the rate of Rs. 50 per mensem which had been disputed by the appellant.

8. What emerges from the foregoing discussion is that there is no good reason to interfere in the order passed by the Rent Controller against the appellant which has also been upheld by the learned Additional District Judge.

9. The appeal is, therefore, dismissed in limine. M. A. K. Appeal dismissed.