2011 PLP 1579 (CLC)

SHER MUHAMMAD KHAN, J.

Through the instant writ petition, petitioner seeks to declare by this Court, the judgment/order passed by learned Additional District Judge-II, D.I. Khan dated 6-1-2010, void, without lawful authority and of no legal effect, vide which appeal of respondent, against the judgment/order dated 21-3-2009 passed by learned Rent Controller/Civil Judge-II, D.I. Khan was accepted and order of ejectment was passed against petitioner by directing him to put the landlord/respondent in possession of the suit shop within a period of two months from the date of announcement of judgment/order i.e. 6-1-2010.

2. Short facts relevant for disposal of the instant writ petition are that respondent filed an ejectment petition under section 13 of West Pakistan Rent Restriction Ordinance 1959 against petitioner and sought his ejectment on the grounds of default, subletting and personal need. Petitioner contested the ejectment petition by raising so many legal and factual objections.

3. During proceedings before the Rent Controller on 3-12-2007, petitioner was directed to deposit monthly rent of the suit shop before 15th of every month.

4. Petitioner failed to comply with the order of the learned Rent Controller and did not deposit monthly rent of the disputed shop, for the month of August and September, 2008. Respondent filed an application for striking defence of petitioner under section 13(6) of the Ordinance but vide order dated 19-11-2008, the learned Rent Controller instead of striking off defence of the petitioner preferred to decide the case on merits after recording evidence of the parties. Finally the case was decided on 31-3-2009 and ejectment petition filed by respondent was dismissed. Respondent preferred appeal against the order/judgment of the learned Rent Controller which was accepted on 6-1-2010 on the ground that petitioner has failed to comply with order, passed by Rent Controller on 3-12-2007, therefore, liable to be ejected.

5. Learned counsel for the petitioner argued that the order of the learned Rent Controller dated 19-11-2008, dismissing the application of respondent for striking off defence was not impugned in time before the appellate Court, which has got finality and the appellate Court was not competent to accept appeal of respondent on the sole ground. He further argued that the default, committed by petitioner was unavoidable and beyond his control because petitioner was confined in Jail in some criminal case, falsely registered against him, till 13-9-2008. Therefore, it should not have been made ground for ejectment of petitioner. Reliance was placed in the case of Ali Hayat versus Miss Aziza Mahmud 1980 SCMR 298.

6. On the other hand, learned counsel for respondent No.1 argued that under the provisions of section 13(6) of West Pakistan Rent Restriction Ordinance, 1959 if the tenant makes default in the compliance of such an order then his defence shall be struck off and the landlord 'put into possession /of the property without taking any further proceedings in the case and the Court has no discretion to condone the default committed by the tenant. He further argued that any interlocutory order can be challenged by any party in the appeal filed against the final judgment/order.

7. We have considered the arguments of both the sides in the light of available record. Admittedly, petitioner has deposited the outstanding' monthly rent for the months of August, September and October on 15-10-2008. Under the provision of section 13(6) of the Ordinance he was required to deposit the rent of August, 2008 before 15th of September, 2008 and the rent for the month of September before 15th of October, 2008.

8. The word used "before 15th of each month" does not carry any other meaning except the one that the payment should be made earlier than that date. Deposit of rent on the 15th of calendar month constitutes non-compliance with the Rent Controller order.

9. In the instant case delay could be condoned for the month of August, if the petitioner would not have been released before 15th of. September, 2008 but he not only defaulted in depositing the monthly rent of August but also failed to deposit the monthly rent of September, 2008 before 15th of October, 2008, for which no reason or unavoidable circumstances have been shown.

10. Therefore, in our view the learned appellate Court has properly appreciated the legal aspects of the case and did not exercise jurisdiction not vested in it. There is no illegality, perversity or jurisdictional defects in the order of appellate Court warranting interference of this Court in extra ordinary constitutional jurisdiction.

11. The instant writ petition is without any substance, hence dismissed with no order as to cost. H.B.T./192/P Petition dismissed.