P L D 1988 Quetta 42 (PLP)

This appeal challenges order dated 29‑11‑1987 passed by learned Civil Judge‑I‑cum‑Controller, Quetta, whereby on striking off appellant's defence, direction has been made to him for handing over vacant possession of shop in dispute.

2. Facts briefly stated are, that on 8‑3‑1987 respondent filed an application for eviction of appellant from shop situated on Trench Road, Chaman on the ground of default in payment of rent with effect from May, 1982. It was alleged that monthly rental of said shop was Rupees two hundred fifty only. Written statement was filed by appellant on 20‑4‑1987 repudiating all the assertions. It was specifically pleaded that monthly rent was factually Rupees sixty only, but respondent /landlord demanded exorbitant enhancement which was refused. However, rent at the rate of Rupees sixty per month is being deposited with Controller.

3. It may be seen that learned Controller on 6‑5‑1987 passed an order under section 13(6) of Baluchistan Rent Restriction Ordinance VI of 1959 directing the appellant to deposit arrears and future rent w.e.f. May, 1982 at the rate of Rs.250. An application was however, moved by appellant on 8th June, 1987 seeking review of above?mentioned order on the ground that same was unlawful. Trial Court ultimately on the failure of appellant to deposit arrears within prescribed time, directed his ejectment by striking off the defence by means of order dated 29‑11‑1987. (Operative portion is reproduced below): ‑ "The respondent instead of depositing the arrears of rent at ?????? the rate of Rs.250 p.m. filed the instant application for review of said order. The respondent has not given the sound reason in support of his contention on contrary he has challenged the said order before the same Court. The said rate of rent was tentative and it was incumbent upon the respondent to comply with the same. But instead of complying with the same, he has challenged this order before this Court. Moreover, being Rent Controller, this Court has no jurisdiction to review its own orders. As such application is dismissed with no orders as to costs. Report of Naib‑Nazir would show that the respondent has deposited the arrears of rent at the rate of Rs.60 p.m. It shows that he has not complied with the orders of this Court. As such he is not entitled to further tenancy and his defence is struck off. The respondent is directed to hand over the vacant possession of shop in question to the applicant within four months. Parties are left to bear their own costs. File after completion be consigned to record." 4.???????? Being aggrieved, present appeal was filed on 26‑12‑1987. 5.???????? Mr. Goher Yaqub learned Counsel for appellant has urged that: ‑ (i)???????? amount of rent was specifically disputed by the appellant, therefore, tentative determination also required judicious considerations whereas learned Controller has acted in an arbitrary manner, (ii)??????? even otherwise direction for payment of time‑barred arrears could not be made, therefore, order dated 6‑5‑1987 was unlawful, consequently striking off defence through impugned judgment is illegal.

6. On the other hand Syed Riazul Hassan, learned Counsel for respondent emphatically argued that appellant has wilfully failed to comply with direction of Controller therefore default was committed. He maintained that Controller under the law had discretion to fix tentative rent, therefore, non‑compliance entailed consequence of ejectment as such impugned order is justified.

7. I have considered, arguments advanced by learned counsel for parties. Pleadings indicate that respondent claimed rent at the rate of Rs.250 p.m. whereas appellant expressly maintained that monthly rental was Rs.60 p.m. It may be seen that on the record of trial Court there are photocopies of 5 receipts Annexures‑A to E filed by appellant showing monthly. rental of shop being Rupees sixty only during year 1980 and 1981. Besides report of Nazir shows deposit of rent with effect from November, 1981 at the rate of Rs:60 p.m'. No other document is available on case file. Evidently eviction is sought only on the ground of default and parties are at variance about rate of rent. No doubt Controller enjoys wide discretion for tentatively fixing reasonable amount of rent and can require the tenant to deposit it with a view to safeguard interest of landlord. At the same time such discretion has always to be exercised judicially. Therefore, it the event of such disputes it would be obligatory for Controller to consider rival claims and material placed on record by tire parties for passing tentative order with cogent reasonings. It would however be risky to adopt version of any one party without) I considering assertion of other side. In the instant case obviously rate of rent is specifically refuted. Presently there is nothing on record of trial Court to supplement averments of landlord concerning monthly rental. Observations of Controller, in order dated 6‑5‑1987 that rent was enhanced from November, 1981, are premature and arbitrary because facts have been assumed without any justifiable data on the record. Moreover, Controller while fixing tentative rent was bound to consider receipts pertaining to year, 1980‑81 placed on record by appellant and his conduct, for depositing Rs.60 p.m. since November, 1981. In this view I am fortified by the observation in case (i) Mistri Allah Din v. Kaniz Begum (P L D 1961 Lahore 410), (ii) Muhammad Adam Khan v. Akhtar Jehan Begum (1981 CLC 1251) 8. . Now examining the other limb of arguments, it may be seen that direction for depositing arrears beyond 3 years does not have B sanction of law. Words "all the rent due" occurring in section 13(6) of Ordinance VI of 1959, have been interpreted by Honourable Supreme Court of Pakistan to mean the amount legally recoverable in an action) of law. Therefore, undisputedly direction for depositing time‑barred rent is without jurisdiction. Reliance may be placed on the observations C in case (i) Ashfaq ftehman v. Ch. Muhammad Afzal (P L D 1968 S C 230) and (ii) Ashfaq Rehman v. Ch. Muhammad Afzal (1971 S C M R Z71).

9. The above discussion would indicate that order of Controller dated 6‑5‑1987 relating to tentative fixation of rent and deposit of arrears apart from being arbitrary is also partly invalid.

10. Similarly provisions of section 13(6) of Ordinance VI of 1959 have penal consequence therefore same are to be strictly construed. Thus, compliance cannot be pressed at least to the extent of invalid order. The effect of such order as such cannot be bifurcated as determined, in ' reported case of (i) Khair Mohammad Nizamani v. Abdul Qadus (P L D 1965 Karachi 367), (ii) Moin‑ul‑Ji Sheikh v. Zulekha and others (1979 C L C 650).

11. The upshot of above discussion is that order under section 13(vi) dated 6‑5‑1987 passed by Controller being partly invalid and arbitrary, appellant would not suffer consequence for its non?compliance. Therefore, I am inclined to set aside order dated 6‑5‑1987 as well as 29‑11‑1987 passed by learned Civil Judge‑I, cum Controller, Quetta. Consequently case is remanded to trial Court for passing order under section 13(6) afresh after hearing the parties and taking into consideration relevant factors and thereafter to dispose of the matter according to law. Parties are however left to bear their own costs. H. B.T. /303/Q??????????????????? ?????????????????????????????????????????????????Case remanded.