' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks setting aside of the impugned order dated 6-3-2004 passed by the learned Rent Controller, Khanewal whereby request of the petitioner for eviction of respondent No,2 due to non- compliance of order dated 4-1-2004 in the deposit of rent for the month February, 2004 before 15th of that month has been dismissed and it is prayed that by striking off his defence, eviction of respondent No,2 from the rental premises may be ordered.
2. The brief facts of the case are that the petitioner-Anjuman Ahl-e-Hadith rented out shop situated at Markazi Jamia Masjid Ahl-e-Hadith, Block No,11, Khanewal to respondent No,2.
Afterwards, the petitioner instituted an ejectment petition in terms of section 13 of the Urban Rent Restriction Ordinance mainly on the ground of tenant's wilful default in payment of rent for 14 months from May, 2002 to' June, 2003. Respondent No,2 filed written reply and issues were framed on 19-11-2003 and the parties were called upon to produce evidence. In the meanwhile vide order dated 5-1-2004 under section 13(6) of the Ordinance, the learned Rent Controller directed respondent No,2 to produce proof of payment of arrears of rent and that "he shall also keep on depositing the rent before 15th' of every month". On 17-2-2004 respondent No,2 moved an application before the learned Rent Controller seeking permission to deposit the amount for the month of February, 2004 at the rate of Rs,1,000 per month which was accepted. On 21-2-2004 an objection was raised by the petitioner about delayed payment of rent for the month of February, 2004 and prayer was made for the eviction of respondent No,2 as he had committed wilful default by not depositing the rent for the month of February, 2004 before 15th as directed by the learned Rent Controller vide order dated 5-1-2004. This request has been declined through the impugned order. Hence, this writ petition.
3. Learned counsel for the petitioner contends that non-deposit of rent before 15th of that month was a wilful default and in support of his contention has relied upon Muhammad Hussain v. Mian Mahmood Ahmad and 3 others PLD 1970 Lah.
140. It is also contended that a wilful default in the deposit of rent was committed by the tenant and refusal to direct the eviction of the tenant by striking off his defence is a final order. Relies upon Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR page 557 to contend that Rent Controller has no jurisdiction to extend the time when the same was not deposited before 15th of every month. It is further contended that reason of illness was not mentioned by respondent No,2 in his application for the delayed deposit of the rent filed on 17-2-2004. Relies upon Muhammad Umar v. Mst. Aiysha Aziz 1981 SCMR page 276 to contend that in the absence of any sufficient cause the learned Rent Controller could not extend time for deposit of rent. Also relies upon Mirza Nazeer Ahmad Baig v. Additional District Judge and two others 1996 CLC 1616 and Muhammad Ashraf v.
Qamar Sultana PLD 2003 SC page 228.
4. Learned counsel for respondent No,2 has raised a preliminary objection that the writ petition is not maintainable as the impugned order is an interlocutory order and this Court has held in number of cases that against such orders the writ petition is not maintainable. Relies upon Al- Shamas Apparel (Pvt.) Ltd. Through Chief Executive and 3 others v. Muslim Commercial Bank Ltd.
And another 2002 CLD page 1407, and contends that as it was not a wilful default, the impugned order is sustainable. It is also contended that illness of respondent No,2 provides sufficient cause for delayed deposit of rent which was beyond his control and whether he was not ill and default was wilful can only be determined after recording of the evidence. Relies upon Syed Toghan Shah v. Shah Muhammad Madni Abbas, PLD 1964 (W.P.) Pesh. 101 and Qamar-uz-Zaman v. Sher Afzal PLD 1966 (W.P.) Pesh. 119 in support of his contentions.
5. I have heard the learned counsel for the parties and also perused the impugned order and the case-law cited by both the parties. The learned Rent Controller had passed order dated 5-1-2004 A in the presence of parties according to which respondent No,2 was bound to deposit the amount of future rent before 15th of each month. This order was not complied with by respondent No,2 and he A moved an application on 17-2-2004 that he could not deposit the rent for the month of February, 2004. Only thereafter he deposited the rent. The application dated 17-2-2004 (Annexure 'D') of this petition does not find mention that respondent No,2 could not deposit the amount of rent before 15th of February, 2004 due to illness. The contents of the application are only to the effect that he wants to deposit the amount and he may be allowed. The said application was allowed without any speaking order. On 21-2-2004 the petitioner raised the plea that as default was committed in payment of rent for the month of February by respondent No,2, his eviction should be ordered by striking off his defence. Vide the impugned order the Rent Controller has not accepted the plea of the petitioner on the ground that the rent for the month of February, 2004 was deposited by respondent No,2 only with the delay of three days, which has been explained by learned counsel for respondent No,2 saying that the respondent was ill and without recording the evidence it cannot be held that he was not ill. This plea raised by the learned counsel for respondent No,2 before the learned lower Court seems to be afterthought as it was never mentioned by him in the application for deposit of rent and cannot be accepted.
6. The case-law cited by the learned counsel for respondent No,2 has been perused. There is no cavil to the proposition that the writ petition is not maintainable against an interlocutory order as has been held in 2002 CLD page 1407 (supra), but the facts and circumstances of the cited case are not applicable to the facts and circumstances of the present case. The judgment cited by the learned counsel for respondent No,2 reported in PLD 1964 (W.P.) Pesh. 101 (supra) is also not applicable to the facts and circumstances of the present case as here respondent No,2 had not mentioned unavoidable circumstances in his application for not depositing the rent before 15th February, 2004. Similarly the other case reported in PLD 1966 (W.P.) Pesh. 119 (supra) is also not applicable to the facts and circumstances of the present case as in the said case plea was raised by the tenant that the default was due to serious illness like typhoid with relapse and it was held that it was a legal excuse for not depositing the rent by the due date but in the present case no such plea was raised by respondent No,2 in his application for late depositing of the rent.
7. On the other hand, the case-law cited by the learned counsel for the petitioner is very clear on the point that the default in payment of rent as directed by the Rent Controller is a wilful default and the same is amenable in writ jurisdiction as the orders passed due to violation of section 13(6) of the Rent Restriction Ordinance were treated in a number of cases as final. The first case-law cited by learned counsel for the petitioner is Muhammad Jahangir v. Muhammad Abbas and 2 others 2002 CLC 538 wherein one-third amount was not deposited in compliance of the direction of the Court and it was held that "where law required a particular thing to be done in a given manner, it had to be done in that manner". In the second case reported in 1996 CLC. 1616 (supra) this Court held that "noncompliance of tentative order for deposit of rent is sufficient to strike off the evidence of the tenant by the Rent Controller". It was contended in the cited case that the tenant was ill at the time when tentative rent order was passed to deposit, and he remained admitted in a private clinic. It was held that section 13(6) of the Rent Restriction Ordinance, did not provide any reason for extension of time and anybody should have deposited the rent if the tenant was ill in 1990 SCMR page 557 (supra) the tenant's defence was struck off by the learned Rent Controller due to the failure to make deposit of rent before specified date. Writ Petition filed against the said order by the tenant was also dismissed by the High Court. Then petition was filed in the august Supreme Court of Pakistan and it was held as .Under:-- "The default under section 13(6) is of a particular nature. As held by this Court the Rent Controller has no discretion to condone it as distinguishable from the default in payment of rent relatable to the other provisions of section 13."
' I am also fortified by the view taken by this Court in PLD 1970 Lah. 140 (D:B. Judgment) in which the rent was not deposited before fifteenth day of each month, but it was deposited on fifteenth of the month. I am further fortified by the view adopted by the decision of the august Supreme Court of Pakistan reported in PLD 2003 SC 228 (supra). Similar view was rendered in 1981 SCMR page 276.
The relevant portion is as under:-- "Even otherwise the appellant has no case on merits. Admittedly, he deposited the rent of September, 1966 on the 17th of October, 1966, therefore, he had to explain and justify each day's delay in the deposit of rent and as he was running a hotel, the era plea of his own illness is not sufficient explanation for his failure to comply with the order for deposit of tentative rent, therefore, on merits he has no case."
8. From the perusal of the above said case-law it is clear that respondent No,2 was bound to deposit the amount of rent for the month of February, 2004 before fifteenth February, 2004, but he failed to deposit the said amount as directed. It has been held in the above said cases that the tenant will be held a wilful defaulter if no reasonable cause is given , and the writ petition is also maintainable against the order passed by the Rent Controller due to the non-deposit of the rent within time under section 13(6) of the Rent Restriction Ordinance, 1959. In the present case no reason was given for not depositing the rent within time, hence, the defence of respondent No,2 was liable to be struck off by the learned trial Court. Non-speaking order was passed on his application dated 17-2-2004 for deposit of rent for the month of February, 2004. The impugned order dated 6-3-2004 has been passed by the learned lower Court against the settled principles of law laid down by the Superior Courts which is not maintainable and is set aside. Resultantly, the defence of respondent No,2 is struck off and the petition filed by the petitioner against respondent No,2 for ejectment from the shop in his possession is accepted. No order as to costs.