P L D 1963 (W (PLP)

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

Ss. 13 (6) & 15‑Order of Rent Controller directing monthly deposit of future rent‑Valid till final decision of case Final decision does not take place till remedy by way of appeals are exhausted‑Tenant under statutory duty to pay monthly rent regularly even during pendency of appeals ‑ Stay granted in respect of order of eviction during pendency of appeal‑Does not suspend order of Rent Controller under S. 13 (6) regarding deposit of monthly rent. Malik Taj Din Ahmad v. Dr. Muhammad Abdul Shakoor P L D 1962 Lah. 175 distinguished. Bakhshi Mahmood Ali v. Aurengzeb P L D 1960 Lah. 1210 ref. Sher Ali for Appellant. Muhammad Ahmed for Respondent. Dates of hearing : 28th June and 1st July 1963. This judgment will dispose of three connected appeals, viz. Second Civil Appeals Nos. 59, 60 and 61 of 1962, as the points requiring determination are common to them all.

2. The appellants are tenants of Abdullah Jan respondent and are occupying a godown each belonging to the respondent situate on Gaisford Road, Quetta. Since Qazi Qahir Khan appellant did not pay up rent for seventeen months together, and Sh. Abdul Khaliq appellant and Haji Khudai Rehm appellant did not pay up rents for fourteen months each, Abdullah Jan respondent made applications under section 13 (2) (1) of the West Pakistan Urban Rent Restriction Ordinance, 1959 for their ejectment on account of non‑payment of rents. The Rent Controller ordered, on the 1st of May 1961, the deposit of the arrears of rents and of the future monthly rents before the fifth day of each month. The learned Rent Controller tried the applications together, and ordered the eviction of the appellants by one order dated the 28th of August 1961. The three appellants filed three separate appeals against the order of the Rent Controller in the Court of the District Judge, Quetta, as the Appellate Authority, and he upheld the order of the Rent Controller on the 8th of November 1961. The appellants came up in appeal to the High Court, and the High Court remanded the cases for retrial by its order dated the 11th of April 1962, directing that the applications should be tried separately.

3. When the cases went back to the Rent Controller, he fixed 3rd July 1962 for the evidence of the parties. On that date, however, the landlord, Abdullah Jan respondent, made an application to the Rent Controller, pointing out that the appellants had made default in deposit of the monthly rents and prayed for their defence being struck off. The learned Rent Controller found that the appellants had not deposited the rents for the month of July 1961 and had deposited the rents for the month of August 1961 on the 6th of September 1961 instead of the 4th of September 1961 and those of October 1961, on the 7th of November 1961. He also found that the rents for the months of December 1961 and January 1962 had been deposited by the appellants on 10‑4‑1962 and that they had deposited the rents for the month of February 1962 on the 24th of March 1962, and, holding that the appellants had made default in compliance with his orders dated the 1st of May 1961, by depositing rents belatedly, struck off their defence and ordered them to put the landlord into possession of the premises occupied by them as tenants. The appellants filed appeals against the aforesaid orders dated the 3rd of July 1962, of the Rent Controller in the Court of the District Judge, the appellate Authority under West Pakistan Urban Rent Restriction Ordinance, 1959, but he dismissed their appeals, upholding the orders of the Rent Controller. The appellants have now come up in second appeal to this Court against the orders dated the 29th of September 1962 of the lower Appellate Authority.

4. It transpires from the record that despite the fact that the appellants had made applications on the 22nd of December 1961 submitting that they wanted to deposit the rents for the months of December 1961 and January 1962, the rents were not deposited by them for these months till the 10th of April 1962 and the rents for the month of February 1962 were deposited on the 24h of March 1962. Learned counsel for the appellants admitted that these deposits were made belatedly and were not in strict compliance with the orders of the Rent Controller. But he contended that this non‑compliance with the orders of the Rent Controller could not entail the penalty of their defence being struck off. His contention was, indeed, three‑fold : (1) the penalty clause in section 13 (b) covered only the latter part thereof which related to the determination of an approximate rent in case of dispute about the amount of rent ; (2) although the rents for the months of December 1961 and January 1962, were due on the 4th of January, 4th of February and 4th of March 1962, respectively the matter having been pending before the High Court from the 13th of December 1961 to the 11th of April 1961. it was not necessary that the deposit of monthly rents should be made, since the District Judge had, after admission of the appeals, passed interim stay order ; and (3) the orders for deposit of monthly rents terminated with the orders of eviction passed by the Rent Controller.

5. I see no force in any of the contentions raised by the learned counsel for the appellants. I do not quite see how the penalty clause of subsection (6) of section 13 can be said to bee related only the non‑compliance with the order of the Rent Controller in a case where he had to fix an approximate amount and not to the non‑compliance with the Rent Controller's order in case he had direct the payment of admitted monthly rent before the fifth day of each month. A plain reading of the subsection makes it clear that the penalty clause has reference to either type of non‑compliance. The words "such an order" the clause beginning with the words "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", obviously relate to the order passed by the Rent Controller, whether on the basis of an admitted amount of rent or on the basis of an approximately fixed rent on account of the dispute regarding the amount thereof. The same view of the matter was taken in an unreported judgment of my learned brother Sajjad Ahmed Jan, J. in Abdul Hakim v. Riaz‑ud -Din S C A No. 42 of 1962, decided on 13th June 1963.

6. The second and third contentions are actually the same contentions put in two different forms. The substance of these contentions is that it is only so long as the Rent Controller has not passed his order of eviction or dispossession that there is an obligation on the tenant to make the deposit of the monthly rents, and that when an appeal has been preferred against the order of eviction or dispossession made by the Rent Controller, it is not necessary for the tenant to make deposit of monthly rents. The language of subsection (6) of section 13 makes it clear that the order of the Rent Controller for the deposit of the monthly rents is to last till the final decision of the case ; and it cannot be said that with the order of eviction or dispossession passed by the Rent Controller the final decision of the case takes place. The final decision of the case does not take place till the remedies of appeal to the appellate Tribunals leave been exhausted. It would be the decision of the final Appellate Authority which would constitute the final decision of the case. Subsection (6) does not say that the order of the Rent Controller regarding the payment of the monthly rents is to be effective till the decision of the application by him. The words used are "till the final decision of the case" underline the fact that the order of the deposit of monthly rents made by the Rent Controller has to be operative till the proceedings initialed by the application under section 13 are finally determined. The learned counsel for the appel lant has cited before me Malik Taj Din Ahmed v. Dr. Muhammad Abdul Shakoor (P L D 1962 Lah, 175) a Division Bench judgment in a Letters Patent Appeal against my order dismissing the appellant's appeal in limine. But I do not think the aforesaid judgment affords any support to the learned counsel in this contention. In the aforesaid judgment their Lordships were dealing with a wholly different matter. I had dismissed the appeal of the appellant in that case in limine pursuant to my view expressed in Bakhshi Mahnzood Ali v. Aurengzeb (P L D 1960 Lah. 1210) that even if the Court of the Rent Controller had ceased to exist on account of the lapse of the Rent Restriction Act under which the Rent Controller had been functioning his order of deposit of arrears of rent and monthly rents could be executable as a decree in the light of section 17 of the expiring Act. Section 17 of the Rent Restriction Act of 1957 reads as follows :‑ "Every order made under section 10 or section 13 and every order passed on appeal under section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court." I had expressed the view that the order directing the deposit of rents was also executable as a decree and, therefore, although the Rent Controller's Court had ceased to exist, the order yet could be executed by a Civil Court having jurisdiction in the area where the order had been passed. In the aforesaid judgment their Lordships overruled my view and held that interlocutory orders, like that regarding the deposit of the monthly rents, were not executable as decree but that it was other orders made under section 13 of the Act, such as for ejectment of a tenant which took effect as a decree of a Civil Court, and that an interim order under subsection (6) exhausted itself on the passing of the final order in the case. The learned counsel for the appellants picked on the words "interim order under subsection (6) exhausted itself on the passing of the final order in the case" and urged that in the present cases the orders of the Rent Controller directing the payment of the monthly rents terminated when he passed the orders of eviction. The learned counsel has obviously ignored the words "on the passing of the final order in the case", which are indeed a reproduction of the phraseology employed in subsection (6) itself. The final order or the final decision of the case, as already pointed out, is not the same thing as the decision of the application by the Rent Controller. I have no manner of doubt that the obligation of the tenant to comply with order of the Rent Controller to deposit the monthly rents regularly, continues till the final decision of the case which, as already mentioned, takes place only when all the remedies of appeal provided in the Ordinance have been exhausted. The appellants, therefore, were under a statutory duty to pay up their monthly rents regularly even during the period they were prosecuting their appeals before the District Judge. It is significant that on the 22nd of December 1961, the appellants themselves made an application to the Rent Controller that they wanted to deposit the rents for December 1961 and January 1962. Again, they made a similar application on the 3rd of March 1962, for making the payment of monthly rents for February and March 1962. Although pursuant to these applications they made their deposits belatedly, their applications betray a consciousness on their part that they were required to pay their monthly rents deposit their having preferred appeals against the orders of their eviction passed by the Rent Controller.

7. Nor do I see any force in the contention of the learned counsel for the appellants that because of the interim stay orders passed by the learned District Judge they were not bound to make any monthly deposit during the period their appeals remained pending before the District Judge. The stay order of the District Judge obviously had reference to the orders of the eviction of the appellants. It was not contended before me that their applications for stay had any reference to the orders of the Rent Controller regarding the deposit of monthly rents.

8. In the circumstances, I see no life in these appeals and dismiss them with costs. K. B. A./A. H. Appeals dismissed.