P L D 1990 Lahore 76 (PLP)

This petition under Article 199 of the Constitution is against order dated 13‑6‑1989 of learned Additional District Judge, Lahore passed in Appeal No.19 o 1989 upholding order of learned Rent Controller dated 18‑1‑1989 by which petitioner's defence was struck off for failing to comply with rent direction made under section 13 (6) of the Rent Ordinance and his forthwith ejectment was ordered. Facts are brief and within a short compass. On 17‑3‑1989 Mohammad Rafique and Nisar Ahmed commenced an action in ejectment against Shah Mohammad and his son Mohammad Asim from a shop situated in Lahore on the grounds of default in payment of rent from September 1983 and requirement of the shop for personal use. It was averred that shop in question was in joint ownership of Mohammad Rafique petitioner No. 1 and Mohammad Amin deceased father of Nisar Ahmad petitioner No.

2. On the death of Mohammad Amin, his share in the shop devolved upon his legal heirs and in result of private partition or arrangement amongst them fell to the lot of Nisar Ahmad petitioner No.2. It was further averred that shop was let out to Shah Mohammad respondent No. 1 by Mohammad Rafique and Mohammad Amin vide lease agreement dated 13‑9‑1977 upon payment of Rs.110 as rent per month. Later on, rent was enhanced to Rs.250 per month. It was further alleged that since September, 1983, petitioner No.2's share of agreed monthly rent was neither tendered nor paid to him. It was also submitted that respondent No. 1 had sublet the shop to his son respondent No.

2. Upon allegations of default in payment of rent, subletting of the shop without prior permission of the landlords and its requirement for self‑use, the then petitioners who are respondents 1 and 2 before this Court claimed ejectment of the present petitioners. Both the petitioners who were respondents in the ejectment case filed separate defences. Shah Mohammad submitted that he had taken the shop on lease on 1‑10‑1977'upon payment of monthly rent of Rs. 110, but later on, in May 1980, had vacated it and delivered its possession to Mohammad Rafique and Mohammad Amin who by a fresh oral lease again gave the shop to his son at the rate of Rs. 150 as rent per month. Allegations in regard to default, subletting and personal requirements were controverted. Mohammad Asim stated that shop was taken on lease by him from Mohammad Rafique and Mohammad Amin upon payment of Rs. 150 as rent per month. Both Mohammad Rafique and Mohammad Amin owned a moiety in the shop. After the death of Mohammad Amin, his share in the shop (as was told to him by Mohammad Rafique) fell to the share of Mohammad Munir his son who received his share of rent from him till the month of July 1983 whereafter upon his refusal to receive his share of rent, it was being regularly deposited in the treasury. Rest of the allegations were also denied. From the above, it would appear that Mohammad Asim had denied relationship of landlord and tenant between him and Nisar Ahmad and also disputed monthly rate of rent payable by him. Respondents pleaded that rent was Rs. 250 per month. Mohammad Asim joined issue and submitted that it was Rs. 150 per month. On 7‑5‑1988, Rent Controller tentatively determined the rate of rent at Rs.150 per month and directed the present petitioners to deposit rent‑arrears from September 1983 to April 1988 amounting to Rs.8400 till 20‑6‑1988 and further ordered deposit of future monthly rent at the same rate before 15th of each succeeding month. It was further observed that rent already deposited in the treasury shall be deducted from the arrears to be deposited. Thereafter, ejectment petition was postponed to 21‑6‑1988 for verification of compliance with the rent‑direction. As direction for deposit of rent‑arrears was not complied with in full and short deposit was made, respondents applied to learned Rent Controller for striking off the defence of the petitioners and putting them in possession of the shop forthwith. Petitioners denied rent default attributed to them and submitted that after deducting the amount of rent already paid, correct amount of rent was deposited. Rent Controller enquired into the matter and found that petitioners had not complied with the rent direction and struck off their defence and without further enquiry directed their forthwith ejectment on 18‑1‑1989. Petitioners riled an appeal. It was urged that a sum of Rs. 4200 was deposited towards rent‑arrears and default was not committed. Learned lower appellate Court did not agree with this contention and dismissed the appeal. It is this decision that is challenged before this Court. At the hearing, learned counsel for the petitioners urged that; (1) Rent Controller acting under section 13(6) of Rent Ordinance had no jurisdiction to direct the tenant to deposit rent‑arrears in respect of which legal remedy to recover was barred under the statute of limitation. Direction for deposit of rent? arrears for a period beyond three years from the date of application i.e. 17‑3‑1989 could not be lawfully made and on the basis of an invalid direction, no penalty could ensue; (2) In the ejectment petition, default in payment of rent was alleged in regard to the share of Nisar Ahmad petitioner No. ~ only and allegation in regard to share of rent payable to Mohammad Rafique petitioner No. 1 was not made. Therefore, Rent Controller could not order deposit of rent in respect of share of Mohammad Rafique who had not alleged non‑payment and to whom admittedly his share of rent ( Rs. 75/‑p.m.) was paid regularly; (3) petitioner Mohammad Asim had denied relationship of landlord and tenant with Nisar Ahmad and without determining this basic objection, direction for deposit of arrears could not be lawfully made. As against this, I learned counsel for respondents I and 2 frankly conceded that direction for deposit of time‑barred arrears could not have been made but submitted that it was open to the tenant to ignore that part of the direction which was defective and comply with its valid part and deposit the rent due for a period of three years preceding the date of commencement of the ejectment case. In this view, learned counsel submitted that default was committed and defence was rightly struck ) off. Learned counsel also admitted that Rent Controller could not direct deposit of arrears with regard to share of monthly rent payable to Mohammad Rafique Who had not complained of its default and to whom his share of rent was being paid. Seen from the above, material point requiring determination in the petition is whether direction for deposit of rent‑arrears was invalid and defective and its non‑observance shall not entail penal consequences. Section 13(6) of the Rent Ordinance provides:‑ "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 fifteenth 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. The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant." Above subsection has two essential components. First concerns itself with arrears of rent due and second with deposit of future rent. "An rent due" means rent which is till recoverable in an action at law. Therefore, "rent due" A would obviously mean the rent due on the date of filing of the ejectment application and recovery whereof was not barred by statute of limitation. Above statement of law is clearly supported from the decisions in Ashfaq‑ur‑Rahman v Chaudbri Muhammad Afzal PLD 1968 SC 230, Ashfaq‑ur‑Rehman Khan v Ch. Muhammad Afial and another PLD 1971 SC 766, Attaullah Malik v. Rashid and another PLD 1972 Karachi 273, Barkat Ali v. Messrs Pakistan Sanitary'and Drainage Works 1974 SCMR 75, Mrs. Vasli and 3 others v. Jamshad Aderji Dubash and another 1980 CLC 1009, Manzoor Ahmad etc. v. Abdul Haq 1989 MLD 4792, Mrs. Hazratbai Merchant and another v. Muhammad Ismail PLD 1983 Karachi

277. Therefore, Rent Controller could only direct deposit of rent?arrears for three years prior to the date of filing of ejectment application and not beyond it. In this view, rent‑arrears for the period commencing 17‑3‑1984 could only have been ordered.to be deposited and order could not lawfully be made for deposit of rent‑arrear from September 1983. Similarly, Mohammad Rafique petitioner had not pleaded default in regard to his share of rent. Only Nisar Ahmad had alleged default in payment of rent from September 1983. It was not denied that share of monthly rent payable to him was Rs.75. Therefore, order for deposit could only be made at the rate of Rs.75 per month commencing from 17?3‑1984 to the date of filing of the ejectment application on 17‑3‑1987 * Rent due and recoverable at law for three years prior to the date of application at the rate of Rs. 75 per, month came to Rs. 2,700 only. Thereafter, from the date of filing of ejectment application to April 1988 at the rate of Rs. 150 per month (from March 1987 to April 1988) came to Rs.2,100 only. Looked at from this view, order for deposit of rent‑arrears made under section 13 (6) of Rent Ordinance was defective and its non‑observance did not generate penal consequences. In Khair Muhammad Nizamani versus Abdul Quddus P L D 1965 (W.P.) Karachi 367, there was no defect in the order for deposit of rent‑arrears but the defect was with regard to the date of deposit of future rent. Still the High Court observed that the defect tainted the whole order. In Moinul Haque G. Shaikh v Mst. Zulekha and 4 others 1979 CLC 650, Rent Controller had directed the tenant to depsoit time‑barred rent arrears alongwith an order for deposit of future rent. There was no defect or fault with the direction relating to deposit of future monthly rent and the fault related to its first part relating to deposit of time? barred arrears. Despite non‑deposit of any arrears or future rent, it was held that whole of the order was bad and it was not open to the Court to bifurcate it in parts and compel compliance with its valid portion and ignore its invalid part. In Kewalram Dayaram Shahani v Nawabali PLD 1978 Karachi 79, the Court observed, "The rent order passed by the learned Rent Controller? contained two separate directions for depositing arrears and future monthly rent and the same being an order of interim or interlocutory nature it remained operative till the final order was made by the learned Rent Controller, which had yet to be made in this case. It was observed in the case of Sh. Muhammad Rafiq v. Mian Umar Din PLD 1973 Note 113 at p. 172 that" the two provisions about deposit of amount due and future rent are not cummulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. Consequently, the respondent was duty bound to deposit future rent also, and it being an admitted position that no future monthly rent was deposited by the respondent, at all, he clearly violated the order of the learned Rent Controller and thus committed default for which his defence could well be struck off by the learned Rent Controller". In Salahuddin Butt v. Khawaja Muhammad Tariq P L D 1981 Lahore 132, a learned Single Judge of this Court commenting on defect in rent direction and its consequences, agreed with the rule in case of Kewalram Dayaram Shahani and held "that the fact that in the instant case, Rent Controller bad erred in directing the respondent to deposit rent for the month of October, 1978, as arrears of rent would not invalidate his order in other respects, especially in so far as it required the respondent to deposit arrears of rent for the period for which the arrears had fallen due by the date on which direction for the deposit thereof was made". In Shaikh Fazal Din v. Dawoodur Rehman Deceased through L.Rs 1983 C L C 470 (Karachi), Saeeduzzaman Siddique, J., agreed with the view expressed in Kewalram Dayaram Shahani's case and observed that defence of the tenant could be struck off for non‑compliance with valid direction for deposit of monthly rent although order also embraced invalid direction for deposit of rent arrears. In this case, though the direction for deposit of rent arrears was found defective yet non‑compliance with the direction for deposit of future monthly rent was taken notice of and defence was found to have been rightly struck off. In the instant case, there was no dispute that future monthly rent was deposited in time as directed by Rent Controller in his order passed under section 13(6) on 7‑5‑1988. Whole dispute related to deposit of rent‑arrears. Undeniably, direction for deposit of rent arrears contained an amount of rent recovery whereof, by then, was already barred by limitation. Such a direction was clearly defective and invalid. Perusal of section 13(6) would show that an order passed under it for deposit of arrears and future rent, in the event of its non? compliance, entailed serious penal consequences. Therefore, order should be clearly worded and it be legal and valid. Defence could not be struck off and, summary ejectment ordered for non‑compliance of an invalid order. It shall be unfair to the tenant to leave calculation of the rent due to him and deposit the same to save his defence from being struck off and be heard on merits of his defence. It is often difficult for a lay litigant to discover what is and what is not legally due. As observed in the case of Ashfaq‑ur‑Rehman PLD 1968 SC 230, "The recovery of rent due from a tenant is not one of the primary objects of the Ordinance, but it appears that in view of the protection given to the tenant against eviction, it is intended to safeguard the interest of the landlord by providing that during the pendency of an action under the Ordinance, the tenant may not occupy the demised premises without payment of rent or withhold payment of rent which has already fallen due. It is within this limited intent that the words: 'all the rent due' are to be construed". Any doubt or ambiguity in the rent direction must be resolved in favour of the tenant who is to suffer in the event of its non?observance. It was not a case where no arrears were deposited at all. Herein, a substantial amount from arrears was deposited in time and default in regard to the deposit of future monthly rent was neither alleged nor made. I note with regret that neither the learned Rent Controller nor the learned lower appellate Court gave the required attention to the real points in controversy. Neither the record was read properly nor the law applied correctly. Impugned orders suffer from want of conscious and judicious application of mind. I would, therefore, accept the writ petition and set aside the orders of the learned Courts below E declaring them to have been made without lawful authority. Its result will be that the Rent Controller will make a fresh order under section 13 (6) of the Rent Ordinance for depositing rent‑arrears and the current rent strictly in accordance with requirements of the above law. Parties shall bear their own costs. A.A./S‑552/L??? ?????????????????????????????????????????????????????????????????????? Petition accepted.