' Concise facts of the case relevant for the disposal of this appeal, are that respondent No.1 being owner of Property bearing No.3-A, Block-A, Gulberg-II, Lahore, rented it, on 21-10-2002, to the appellant under the agreement of lease dated 5-5-2001. The respondent No.1 sought the ejectment of the appellant through filing the ejectment petition, on the grounds of expiry of lease period, default in payment/tender of rent since 1-6-2002, unauthorized construction, subletting and personal bona fide need. The appellant filed reply to ejectment petition on 3-2-2002, controverting therein the assertions of ejectment petition. The relationship of landlord and tenant was, however, admitted.
2. The learned Rent Controller while passing the order under section 13(6) of the Ordinance fixed the tentative rent at the rate of Rs.3,25,000 per month and directed the petitioner by order dated 20-3- 2003, to deposit within a period of one month, the arrears of rent at the said rate, from October, 2002 till February, 2003, making a total of Rs.16,25,000. The order to deposit the future rent at the same rate was also passed. The appellant was held entitled to the deduction of amounts paid/tendered with respondent No.1, against a valid receipt. The matter was then adjourned to 20- 4-2003 for production of receipts of rent.
3. The appellant, instead of complying with order passed under section 13(6), filed an application under section 151, C.P.C. Along with the photocopy of a compromise agreement dated 16-4-2003, stated to be executed between the appellant, respondent No.1 and Hameed Jilani Tiwana. The terms of this agreement, provided the devolution of tenancy to the latter and adjustment of investment allegedly made by the appellant in respect of the rented premises. Learned Rent Controller pursuant to the filing of the application, recorded the statement of respondent No.1, who denied the execution of agreement. The respondent No.1 submitted and application under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. The appellant, on the other hand, filed two applications, one under section 34 of the Arbitration Act (X of 1940) and the other under section 151, C . P. C .
4. Learned Rent Controller heard arguments on all the applications and by order dated 30-9-2003, dismissed the application under Order 1, rule 10, C.P.C. And section 34 of the Arbitration Act and directed the appellant to submit the receipts of rent. Hamid Jilani Tiwana challenged the order dated 30-9-2003 in appeal before the learned Additional District Judge, Lahore. The learned Additional District Judge, Lahore by accepting the appeal, on 28-10-2003 remanded the case to the learned Rent Controller for its decision afresh, after getting the replies to applications. The appellant as well as respondent No.1 filed their replies and the parties addressed their respective arguments on the applications. The applications filed by the intervenor under Order 1, rule 10, C.P.C.
As well as under section 34, of the Arbitration Act, were dismissed on 14-4-2004. The learned Rent Controller passed the ejectment order while accepting the ejectment petition by striking off the defence of the appellant. The respondent No.1 was held entitled to the rent at Rs.3,25,000 per month, from the date of filing of ejectment petition. The appeals against the order dated 14-4- 2004, met the same fate, which were dismissed by the learned Additional District Judge on 27-10- 2004, with costs and the order of ejectment, passed by the learned Rent Controller, was upheld.
These orders dated 14-4-2004 and 27-10-2004 are now under challenge in the instant appeal, before this Court.
5. Learned counsel for the appellant has argued with vehemence that the agreement dated 16-4- 2003, was arrived at between the parties, which was duly signed and executed. The compromise deed dated 16-4-2003, was signed and executed by the appellant, respondent No.1 and Hamid Jilani Tiwana. The investment of the appellant, on construction of the premises, was agreed to be adjusted towards rent and the tenancy devolved on Hamid Jilani Tiwana. The respondent No.1, as per sub-clauses (a) to (e) of Clause yI of the Agreement, has admitted Hameed Jilani Tiwana as his tenant, undertaken to withdraw the ejectment petition. He has now resiled from his commitment and instead of performing his contractual obligation is pursuing the ejectment proceedings. The learned counsel further submitted that the learned Rent Controller has exercised the jurisdiction illegally in deciding the question of validity of agreement dated 16-4-2003, without framing issues. Respondent. No.1 denied the execution of agreement, and the existence of the valid agreement can only be decided, when the issue to this effect is framed and the evidence is led.
The learned counsel in support of his contention has placed reliance on the case titled "Muhammad Ilyas and Sons Ltd. v. Abdul Ahmad Khan" reported as 1981 CLC 1257. The learned counsel further referred to the cases of "Athar Hussain Jafari v. S. Akbar Amin" (1995 CLC 115), "Muhammad Siddique v. Abdul Karim and others" (1983 CLC 913) and "Malik Shoib Anwar v. Bashir Hussain Shami" (1993 SCMR 535) to contend that it was the duty, cast upon the Rent Controller, to see whether non-compliance of section 13(6) of the Ordinance is deliberate or not? He further added that the penalty of striking off the defence is not attracted, if non-compliance is not deliberate. He, while placing reliance on "Muhammad Arif v. Muhammad Raza" (PLD 1993 Lah. 121), "Ghulam Rasool v. Said Rasool and others" (PLD 1990 Lah. 457), "Syed Akhlaque Hussain v. Habib Ismail Bajwa" (1974 SCMR 504) and "Shah Muhammad and 8 others v. Additional District Judge and 7 others" (PLD 1990 Lah. 64), submitted that in the event of default in payment of rent as per tentative order, the Rent Controller was duty bound to finally determine the rent.
6. The learned counsel for respondent No.1, has supported the impugned orders and submitted that the order dated 20-3-2003 under section 13(6) of the Ordinance was passed consequent upon the admission of landlord tenant relationship. The appellant failed to comply with the said order and the only course open to the learned Rent Controller was to strike off the defence and pass ejectment order forthwith. He further argued that learned Rent Controller was justified in rejecting the so-called compromise, firstly it had not been filed by the parties to proceedings jointly, secondly the original agreement was not filed on record and thirdly it was denied by one of the parties to the contract. He found support in this regard from the cases of "Umar Bakhsh v. Azim Khan" (1993 SCMR 374); "Muhammad Ayub v. Muhammad Yousaf" (1996 MLD 1395) and "Saleem v.
Jalal-ud-Din and others" (PLD 1982 SC 457). Learned counsel for the respondent No.1 has also contended that the order passed by the learned Rent Controller under section 13(6), has to be complied in its letter and spirit and tenant can raise no defence without first complying with such order. He has relied upon the cases of "Mushtaq Hussain v. M. Shafi" (1979 SCMR 496); WAPDA v.
Aftab Ali (PLD 1981 CLC 579) "Abdul Ghafoor v. M. Ibrahim" (1967 MLD 138) and "M. Rafique v. Ghulam Rasool" (NLR 1993 CLJ 755). He contended that the Courts below have rightly declined to frame issues, to prove so-called agreement as rules of evidence are not applicable to the proceedings before the learned Rent Controller and referred to the case of "Fazal Karim v. ADJ" (PLD 1982 SC 306) and "Abdul Majeed and others v. Muhammad Aslam" (1981 CLC 20). It was lastly submitted, by placing reliance on "M. Nazeer v. Saeed Subhani" (2002 SCMR 1540) and "Haseena Begum v.
Nazima Begum" (1991 MLD 2327), that plea of an agreement is not defence to non-compliance of order passed under section 13(6) of the Ordinance.
7. Heard learned counsel for the parties and examined the record.
8. The order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, was passed by the learned Rent Controller on 20-3-2003, wherein the appellant was directed to deposit,. Within a period of one month, an amount of Rs.16,25,000, being the past rent of premises from October, 2002 to February, 2003. The appellant was further directed to deposit future rent at a rate of Rs.3,25,000 per month before the 15th day of each succeeding month. The appellant had not made the compliance of order dated 20-3-2003 till today. In the event of default and non-compliance, the only course open to the learned Rent Controller was to strike off the defence and put the landlord into the possession of the premises. Once it is established that the compliance of the order has not been made, the penal consequences in the form of striking off the defence of the tenant, are to be followed without taking any further proceedings. The petitioner has neither paid the rent to comply the order of Rent Controller nor sought any extension of time. The apex Court in a recent case titled "Khadim Hussain v. Nisar Ahmad" (2003 SCMR 1580) has held:-- "It is clear that ordinarily, once the default in the compliance of order of Rent Controller under section 13(6) of the Ordinance is established, the penal consequences of the defence of the tenant being struck off and the landlord put into possession of the property, by order of the Rent Controller are to follow without taking any further proceedings. It is in a very exceptional case, where a non- compliance of the order -of the Rent Controller is made for reasons beyond the control of a tenant or for other sufficient cause, that the time for such a deposit of rent may be extended by the Rent Controller".
The law is settled and there is plethora of case-law (including the judgments cited by the learned counsel for respondent No.1) on the issue, that Rent Controller is bound to strike off the defence of the tenant and pass the ejectment order of the tenant in the event' of non-compliance of the order under section 13(6) of the Ordinance, I do not want to burden this judgment by citing the judgments.
9. The so-called compromise agreement was allegedly executed by the parties on 16-4-2003, four days prior to the date, when payment of Rs.16,25,000 became due, under the order dated 20-3- 2003. The respondent No.1 appeared before the learned Rent Controller and recorded his statement on oath denying the execution of agreement. The Court is not required to accept compromise, if it is rejected by one party and while holding so I find support from the case of Umar Bakhsh v. Azim Khan (1993 SCMR 374) wherein it was held that:-- "It, therefore, manifestly follows that the compromise would be completed only when it is accepted by the Court and order are passed by the Court as desired by the parties. Court would consider the document in the compromise, when both parties signing it agree and reiterate its contents before the Court. If before the Court one.Party to the document resiles from it then the document can be called anything but an agreement or compromise."
The compromise agreement, even otherwise, is unconscientious agreement and cannot be believed as it has allegedly been executed on 16-4-2003 four days prior to a date when the payment of Rs. 16,25,000 under order dated 20-3-2003 was due. The respondent No.1 was to receive either a payment of Rs.16,25,000 or an ejectment order in case of its non-payment. The respondent No.1, on the other hand, in case enters into agreement, he has to acknowledge a sum of Rs.10 million payable by him to the appellant, waive the right to recover arrears of rent, allow the tenant to stay in possession and accept the reduction in the rate of rent from Rs.3,25,000 to Rs.1,50,000 per month.
10. The compromise agreement, which has not been filed in original, its signatories have not agreed and reiterated its contents before the Rent Controller and its execution was denied by the landlord, cannot be made the basis of dismissal of ejectment petition. The Rent Controller as well as the appellate Court, has rightly dismissed the application of the appellant, filed under section 34 of the Arbitration Act, 1940 as the same is a tactics to delay the proceedings. The arbitration clause in so called agreement cannot effect the proceedings before the learned Rent Controller. The rent deed on the basis of which the ejectment proceedings were instituted does not contain arbitration clause. Proceedings cannot be stayed on the basis of agreement, which is not the basis of ejectment proceedings.
11. The learned Rent Controller has passed just and proper order wherein the right of defence of the appellant was struck off and ejectment petition was accepted with costs and the learned Additional District Judge was right in dismissing the appeal. The appeal in hand is devoid of any merit and the same is dismissed with costs throughout.