2005 PLP 2328 (YLR)

Precisely stated facts of the case are that the respondents filed the ejectment petition, before the learned Rent Controller, against Saif-ur-Rehman and 4 others, seeking their eviction from the questioned property, on the grounds of default in the payment of rent since 1-11-1992, materially impairing the value and utility of the building and personal, use of the owners. The said ejectment petition was contested by Saif-ur-Rehman, through filing its written reply, thereby controverting the contents of the ejectment petition, inter alia, pleading that after the receipt of legal notice, he, in order to avoid any litigation, started making payment of the demanded rent at the rate of Rs.2353 per mensem. The learned Rent Controller, in exercise of powers under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, directed Saif-ur-Rehman to deposit the arrears of rent w.e.f. 30-11-1997 to 1-10-1998 at the rate of Rs.1,981 per month and from 1-10-1998 onwards at the rate of Rs.2,476 per month before the 15th of next month and also to deposit future monthly rent before the 15th day of each month, vide order dated 30-7-2001. Thereafter, Saif-ur-Rehman filed the application seeking review of order dated 30-7-2001, which was contested by the respondents on the legal plane that the learned Rent Controller is not empowered to review its own order. Before the said application could be decided, the respondents filed the application, under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, contending therein that as the rent deposit order has not been complied with, therefore, the defence of Saif-ur-Rehman be struck off. This application was resisted by Saif-ur-Rehman, who pleaded that in order to avoid any dispute, due rent has been deposited. The learned Rent Controller, after hearing the parties, dismissed the review application, on the ground that he has no jurisdiction to review its order, and accepted respondent's application, under section 13(6) of the Ordinance, struck off the defence of Saif?ur-Rehman and passed the ejectment order, through two separate orders both dated 17-11-2001. Saif-ur-Rehman challenged the said orders before the Appellate Authority, however, his appeal was dismissed by the learned Additional District Judge, vide impugned judgment dated 14-2-2002, hence the present second appeal.

2. Learned counsel for the appellants has contended that the respondents, in their application filed under section 13(6) of the Ordinance 1959, did not raise the plea that the rent was deposited in the name of a wrong person and their case was that arrears as well as future monthly rent have not been deposited in accordance with law, thus, according to the learned counsel new plea cannot be agitated before this Court in second appeal. He has further submitted that although ejectment petition was not competent, yet Saif-ur-Rehman, in order to avoid any dispute and future complications, deposited the arrears of rent, though in his own name. He has added that the learned Rent Controller has directed the eviction of Saif-ur-Rehman without determining the question as to whether the act of Saif-ur-Rehman, in depositing the rent in his name, was contumacious, deliberate and intentional. He has relied upon Muhammad Arif v. Muhammad Raza PLD 1993 Lahore

121. He, while referring to page 9 of the appeal, has submitted that in fact Saif-ur-Rehman has deposited excess amount of Rs.1,

555. Conversely, the learned counsel for the respondents, while refuting the said contentions, has submitted that Saif-ur-Rehman did not deposit the rent in the name of the respondents, as directed by the learned Rent Controller, but deposited the same in his own name, therefore, he has committed default and both the Courts have rightly struck off the defence of Saif-ur-Rehman, which order/judgment are not open to exception. He has referred to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC

477. He has added that there is no question of waiver on the part of the respondents and it is the duty of the Court to see as to whether the mandatory provision of law has been complied with or not.

3. Admittedly, the learned Rent Controller, in exercise of his powers under section 13(6) of the Ordinance, directed Saif-ur-Rehman to deposit the arrears of rent and future monthly rent before 15th of next month. In reply to respondent's application, under section 13(6) of the Ordinance, 1959, Saif-ur-Rehman though pleaded that this application is not maintainable in view of the pendency of review petition, however, it was stated that in order to avoid any dispute he has deposited the rent as per the directions of the learned Rent Controller and the receipts have been placed on record. Relevant portion of the reply reads as under:- It flows from the above that the only defence of Saif-ur-Rehman, to respondent's afore-noted application, was that irrespective of pleas raised in the written reply to the ejectment petition, he has complied with the rent deposit order, passed by the learned Rent Controller, and has, in fact, deposited the due rent. The learned Rent Controller, after the examination of the challan forms/rent receipts, produced by Saif-ur-Rehman, came to the conclusion that the rent has not been deposited in the name of Haji Saleh Muhammad, the predecessor-in-interest of the respondents, but the same was deposited in the name of Saif-ur-Rehman himself. I have also examined the receipts/challan forms, photocopies whereof have been placed on record of the appeal, and find that the findings of the learned Rent Controller are in accordance with the record of the case and are not open to exception, as the challan forms show that the rent for the period from January, 1998 to July, 1999 was deposited by Saif-ur-Rehman in the name of Saif-ur-Rehman. These Bank challan forms do not indicate A either the name of Saleh Muhammad or any of the respondents. In view whereof, the only conclusion, which can be drawn, is that Saif-ur-Rehman did not deposit the rent in favour of Saleh Muhammad and, in fact, deposited the same in his own name. Obviously, the said deposit of rent is not in accordance with the directions of the learned Rent Controller, as Saif-ur-Rehman was not directed by the learned Rent Controller to deposit the arrears of rent and future monthly rent in his own name and it cannot be termed and considered as compliance with the rent deposit order, passed under section 13(6) of the Ordinance. It is settled law by now that if the rent due has not been deposited in favour of landlord and the same has been deposited either in the name of depositor himself or in the name of a wrong person, that does not amount to tender/deposit of the rent in favour of landlord and cannot be taken as sufficient compliance of the rent deposit order and such defaulting tenant is liable to be evicted. Reference can be made to the judgments reported as Khawaja Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9; Bahadur Khan and others v. Ch. Muhammad Hussain and others 1991 SCMR 429; Qari Abdul Rehman and 6 others v. Jamaluddin and another 2000 A SCMR 226 and Buzarg Jamil and another v. Haji Abdul Bari and others PLD 2003 SC

477. Being guided by the aforesaid law declared, I am constrained to hold that Saif-ur-Rehman, by depositing the rent in his own name, did not comply with the directions of the learned Rent Controller, passed under section 13(6) of the Ordinance and his act was deliberate and contumacious, thus, he committed default entailing the penalty of eviction.

4. As regards the judgment, relied upon by the learned counsel for the appellants, suffice it to say that in view of the law declared, as noted above, the said judgments are of no avail to the appellants.

5. In the above perspective, I have examined both the order/judgment and find that both the Courts did not commit any legal errors in passing both the order/ judgment and the same do not suffer from any legal infirmity. I have no reasons to upset the concurrent findings of fact, thus, both the order/judgment are maintained.

6. Upshot of the above discussion is that the present appeal is hereby dismissed, leaving the parties to bear their own costs. H.B.T./M-1121/L??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.