P L D 1960 (W (PLP)

2. The facts giving rise to this appeal are these: On 23rd July 1959, the respondent, Muhammad Iqbal minor, filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, through his father Khan Saheb Muhammad Shafi, as his next friend, for the ejectment of his tenant, Dr. Ilyas Dobash, from 21, Mozang Road, on the ground that he had made default in the payment of rent. It was also alleged that he had damaged the property considerably. In the written statement Dr. Ilyas Dobash controverted the above allegations and pleaded that Muhammad lqbal was not the owner of the property and that the property was in fact evacuee property. On the 20th of October 1959, the Controller, in accordance with subsection (6) of section 13 of the Ordinance, provisionally determined Rs. 2,000 as arrears of rent and called upon the appellant to deposit the sum by the 10th of November 1959. He also directed him to deposit regularly the monthly rent due from him till the decision of the case, before the 5th day of each month. As Dr. Ilyas Dobash failed to comply with this order, the learned Controller struck off his defence on the 24th of November 1959, and ordered his ejectment from the premises in dispute. Dissatisfied with this order Dr. Ryas Dobash filed an appeal before the District Judge which was dismissed on the 18th of March 1960. He has now come up in second appeal to this Court.

3. It has been contended by the learned counsel for the appellant that the property in dispute is evacuee property and, as such, in view of the provisions of subsection (3) of section 1 of the Ordinance, the Controller 'could not have taken further proceedings in the matter. He has also reiterated his plea that the appellant was not the tenant of the respondent and conse quently the latter could not apply to the Controller under section 13 of the Ordinance. These pleas had been raised by the appel lant in his written statement. The learned counsel for the appellant has, however, conceded before me that Rs. 2,000 had not been deposited by his client by the 10th of November 1959, as directed by the Controller.

4. The question, therefore, which falls for determination is whether the Controller, in the circumstances of the case, could have struck off the defence of the appellant or not. Subsection (6) of section 13 of the Ordinance reads as follows :‑

"In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case." It will be seen that in view of the provisions of this subsection, the Controller is bound to give a direction to the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. This direction is to be given on the first date of hearing or as soon as possible after that date, but before the framing of the issues. It is, there fore, clear that the Controller cannot decide the plea raised in defence before directing the tenant to deposit the rent due from him. It is a condition precedent that the tenant should deposit the rent due from him, and it only when this condition is complied with that the Controller can determine the questions raised in defence. The object of this piece of legislation is to ensure speedy disposal of such cases. The money which is deposited by the tenant is not paid to the landlord until the points raised by the tenant are decided. The tenant has, there, fore, nothing to lose, if he deposits the arrears. In case he succeeds in his defence, the rent so deposited is liable to be refunded to him. As the appellant had not deposited the arrears by the 10th of November 1959, as directed by the Controller he was bound to strike off the defence and put the landlord into possession of the property without taking any further proceedings in the case. He had no option in the matter.

5. It is true that subsection (3) of section 1 of the Ordinance says that nothing contained in this Ordinance shall be deemed to affect any evacuee property as defined in the Pakistan (Admi nistration of Evacuee Property) Act, 1957', but surely this does not mean that as soon as a plea is raised that the property is evacuee property, the Controller is not to take further proceedings which, under the law, he is bound to take. It being one of the pleas raised in defence, the Controller could not have decided this issue before, complying with the provisions of subsection (6) of section 13 of the. Ordinance. In fact, he could not have framed an issue on this point, until his order in respect of the deposit of the arrears had been complied with.

6. Moreover, the property, even if it be assumed that it was evacuee at one stage, has ceased to be evacuee property within the definition of "evacuee property" given in the Pakistan (Administration of Evacuee Property) Act, 1957. Under section 3 of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, `the Central Government could require the Government of West Pakistan to acquire evacuee property other than agricultural land situated in the Province as the Central Government may deem it necessary to acquire'. Subsection (3) of section 3 of this Act reads as follows :‑ "On the publication of a notification under subsection (1) or subsection (2) the right, title and interest, of any evacuee in the evacuee property specified in the notification, shall, with effect from the date of such publication, be extin guished, and the evacuee property shall vest wholly and absolutely in the Central Government free from all encum brances." The Government of West Pakistan vide their Notification No. U‑8‑79‑59 (3113), dated the 1st of August 1959, acquired with immediate effect all immovable evacuee property situated within the Province of West Pakistan other than agricultural land and some other property specified therein. Consequently, the right, title and interest of any evacuee in the property in dispute was extinguished from the date of the publication of this notification. It, therefore, ceased to be evacuee property within the meaning of the definition of "evacuee property" as given in subsection (3) of section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957. Its definition reads as follows :‑

" `evacuee property' means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes‑ * * * * * * *

7. Besides, section 3 of the Pakistan (Administration o Evacuee Property) Act, 1957, provides that `notwithstanding anything contained in this Act, no person or property not' treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. In view of this provision of law, the property in dispute cannot now be declared as evacuee property, because there is nothing to show that it was ever treated as evacuee property before the 1st of January 1957.

8. It has also been urged by the learned counsel for the appellant that the appellant had made an application on the 4th of November 1959, that the points raised in his written statement should be decided first, and till then the order directing the appellant to deposit the arrears be stayed. This application was fixed for hearing on the 24th of November 1959, and on that date the defence was struck off by the Controller because of the non‑payment of the arrears by the 10th of November. Learned counsel for the appellant has argued that the Controller could have extended the time for the deposit of the arrears under section 148 of the Civil Procedure Code. This section is applicable only if any period is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code of Civil Procedure. In its terms this section has got no application to the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. Section 16 of the Ordinance, however, provides that for the purposes of the Ordinance at, appellate authority or a Controller appointed under the Ordinance shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure 1908. The Code of Civil Procedure, as such, has not been made applicable to the proceedings under the Ordinance and it is only for the limited purpose of summoning and enforcing the attendance of witnesses and compelling the production of evidence that powers have been given to the Controller and the appellate authority under section 16 of the Ordinance as are vested in a Court under the Code of Civil Procedure. There is no general power possessed by the Controller to extend the time fixed by him for the payment of the arrears. He does not appear to be armed with all the powers under the Code of Civil Procedure. Consequently, there could be no question of exercising a power to extend time, when such a power did not exist at all.

9. For the reasons given above, I hold that as the appellant had failed to comply with the order of the Controller by not depositing the arrears within the time prescribed by him, he had no option but to strike off the defence of the appellant. In this view of the matter there is no force in this appeal, which is hereby dismissed with costs. K. M. A. Appeal dismissed.