P L D 1968 Supreme Court 230 (PLP)

MUHAMMAD YAQUB ALI, J.‑The question raised in these two appeals is whether a Rent Controller can under section 13(6) of the West Pakistan Rent Restriction Ordinance VI of 1959 hereinafter referred to as the Ordinance require a tenant to deposit arrears of rent in respect of which the remedy to recover has,, under the Limitation Act, 1908, become barred by time and in, default strike off the defence of the tenant and direct him to place the landlord in possession of the demised premises. The facts are not in dispute. In either case the Controller of an application made by the respondent‑landlord for eviction under section 13(1) of the Ordinance directed the appellant to, deposit the arrears of rent including substantial sums in respect of which the remedy to recover through the process of Court had become barred by time. These orders were passed under section 13(6) of the Ordinance which provides as follows :‑ (6) 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 fifth 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." The appellants pleaded that section 13(6) did not have the effect of depriving them of the legal defence under the Limitation Act, 1908, and declined to deposit the rent for the period beyond three years of the date on which the applications for eviction were instituted. Consequent upon the default the Rent Controller struck off the defence and directed them to place the respondents in possession of the demised premises. The District Judge on appeals upheld the order of the Rent Controller on the view ‑that the words "all the rent due" include rent which the landlord may not have been able to recover on account of the bar of limitation. 'The appellants there upon filed further appeals in the High Court .under section 15 of the Ordinance which gave rise to a reference to a Full Bench to consider the question :‑ "Whether the words "all the rent due" in subsection (6) of section 13 of Ordinance No. VI of 1959, include rent, though unpaid cannot be recovered, in view of the statute of limitation through a Civil Court." The learned Judges with reference to a large number of decided cases mostly from foreign jurisdiction concluded :‑ (i) that a time‑barred debt is a debt due although the legal remedy in respect of it may be barred; and (ii) that the Rent Controller is not a court to attract the bar of the Limitation Act; and answered the reference in the affirmative. Leave to appeal from the decision of the Full Bench was granted to consider the question whether the words: "all the rent due" in subsection (6) of section 13 of the Ordinance should be held to include rent which though unpaid cannot be recovered on account of the bar in the Limitation Act through a civil Court. Both the propositions relied upon by the High Court are so well‑established that no precedents were needed to support them, .but they did not necessarily lead to the conclusion that the provisions of section 13(6) of the Ordinance could be employed to deprive the tenant of a legal defence under the general law. The Ordinance is concerned mainly to adjudicate upon matters which are germane to assessment of fair rent, bar to unauthorised increase in rent, provision of facilities and easements appertaining to the tenement by the landlord and protection against eviction of the tenants except on the conditions laid down in section 13 of ,the Ordinance. 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. It would further be noticed that deposit of "all the rent due" and its payment to the landlord is not dependent on the ultimate decision on the action before the Rent Controller. For example the application for eviction may be dismissed, but the rent found due shall be paid to the landlord and in default such an order shall under section 17 be executed by a civil Court having jurisdiction in the area as fit were a decree of that Court. To this extent the determination of "all the rent due" in subsection (6) of section 13 by the Rent Controller is in the nature of an adjudication by a Court in a suit for recovery of arrears of rent. It was urged by the learned counsel for the appellants that as soon as the Rent Controller is seized with such a determination the jurisdiction of a civil Court is displaced and to all intents and purposes the proceedings before the Rent Controller are in the nature of a suit for recovery of rent and would attract the application of the Limitation Act. The proposition advanced by the learned counsel for the appellants may not be accepted as a whole, but it has force to the extent that a legal process is employed by the Rent Controller to recover rent which is closely akin to an action at law in a High Court of civil jurisdiction. The enunciation that a time‑barred debt is a debt due though not enforceable in an action at law would not, therefore, be attracted to proceedings under section 13(6) of the Ordinance. Another aspect of the proposition is that in an action for eviction or fixation of fair rent if brought before the Rent Controller a party shall not be deprived of a legal defence which I would be available to him in a Court of general jurisdiction. In the case of Bird v. Hildage (2AELR7) the Court of Appeal construed the words: "rent lawfully due" in the Rent and Mortgage Instruments Restrictions (Amendment) Act, 1933, as rent which can be recovered by process at law. Dealing further with the effect of tender after the due date where time is not made the essence of a contract their Lordships observed that where a debtor has a defence in law to a claim for money whether it be a rent or otherwise it seemed impossible to say that the money claimed is lawfully due from debtor to the creditor or the tenant to the landlord. Though the word "lawfully" is not added to "all the rent due" in section 13(6) yet the effect remains the same. When J, rent is sought to be recovered by a legal process be it before a court or a tribunal the word `due' would carry the connotation of "due in law" or recoverable in an action at law. It has been brought out above that recovery of rent is not the primary object of the Ordinance. Another argument which arises in the case, therefore, is whether the Legislature intended that rent which is not recoverable in an action at law shall be payable in proceedings under section 13(6). The answer must be in the negative for if at all such was the intention the draftsman would have added the words to the effect: "whether barred by time under the statute of limitation or not". No evidence of such an intention is seen in the Ordinance and it would be legitimate t‑,i interpret the words: "all the rent due" as the rent lawfully due. On the contrary if the interpretation placed on the words by the Courts below is to prevail, anomalous results would follow. For example a suit filed by the landlord for recovery of rent may be dismissed by a civil Court as barred by time. Or the execution of a decree for recovery of rent may be struck off for similar reasons. Does it mean that notwithstanding the finality which attaches to those decisions under section 11, C. P. C., the landlord can recover the sum involved in the suit or execution of the decree dismissed as barred by time by filing even a palpably false and frivolous application for eviction under section 13 of the Ordinance which on the facts disclosed in the application is bound to be dismissed. It is plain that under the doctrine of constructive res judicata such a claim would not lie. For similar reasons it can safely be concluded that the defence to a claim for rent cannot be taken away by the Rent Controller while directing the tenant to deposit "all the rent due" under section 13(6) of the Ordinance. On our evaluation of section 13(6) of the Ordinance in the context of the general law we are of the view that a Rent Controller acting under section 13(6) of the Ordinance cannot direct the tenant to deposit rent in respect of which the legal e, remedy to recover has become barred under the statute of limitation. In the result both the appeals are allowed and the cases remanded to the High Court for disposal of the second appeals preferred by the appellants in accordance with the decision rendered herein. There shall be no order as to costs. A. H. Appeals allowed.