This second appeal is directed again an order for the ejectment of the appellant, Muhammad Safdar Meer, from an apartment belonging to the respondent, Mst. Fahmida Begum.
2. The impugned order was made on an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, filed by the respondent for ejectment of the appellant from the premises in dispute inter alia on the ground of default in the payment of rent. This plea of the respondent was upheld by the Rent Controller who had heard the said application. As a result, he ordered the ejectment of the appellant from the property in dispute. The appellant challenged the order of the learned Rent Controller by means of an appeal before an Additional District Judge but as the same was dismissed he has come up in second appeal to this Court. .
3. The default for which the appellant's ejectment has been ordered relates to period from February to May 1972. In his reply, to the application for ejectment it was averred by the appellant that he had been regularly paying rent for the premises in question. During the course of his cross- examination as his own witness it was stated by the appellant, before the learned Rent Controller, that he had with him receipts showing the payment of rent for the said period of four months which he could produce, but he did not place those receipts on the record. It was, therefore, held by the learned Rent Controller that he had committed default in the payment of rent. Later, before the first appellate Court, he did produce four receipts issued by one Muhammad Akbar but they were not taken into account by the learned Additional District Judge for the reasons that--
(i) the appellant had not examined Muhammad Akbar aforesaid to prove the execution of the receipts by him;
(ii) the respondent had denied that Muhammad Akbar had any thing to do with the property in dispute or was authorised by her to receive its rent on her behalf, and
(iii) the appellant had failed to show that Muhammad Akbar had the authority to receive the rent in dispute on behalf of the respondent.
The view taken by the learned Additional District Judge was that as the appellant had failed to prove the payment of rent for the period from February to May 1972, the order of the learned Rent Controller did not call for any interference.
4. Learned counsel for the appellant contended that the said receipts were taken into consideration by the learned Rent Controller while making an order, under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 and, therefore, he or the learned Additional District Judge could not exclude them from consideration while finally deciding the question of default. I am riot impressed by this argument. In an ejectment case if the plea of default is raised, it is taken care of by the Rent Controller at two stages. The first stage comes in the beginning of the ejectment proceedings when under subsection (6) of section 13 the arrears of rent, if any, are tantatively fixed by him and direction for their deposit is given. The second stage is that when on the conclusion of the proceedings the Rent Controller records final decision in respect of the arrears payable by the tenant. In the light of the final determination of arrears at the end of the ejectment proceedings, the arrears of rent deposited by the tenant in pursuance of the direction of the Rent Controller under subsection (6) of section 13 are adjusted towards the amount of arrears determined by the Rent Controller while disposing of the case on merits. In case the amount of arrears found due from him exceeds the one already deposited by him under subsection (6) of section 13, he is required to make up the deficiency. If, however, it is held that no arrears whatsoever were outstanding against the tenant when ejectment proceedings were initiated, the amount already deposited by him is refunded to him. Thus, the order made under subsection (6) of section 13 is of a provisional nature and is subject to the final order by which the case is disposed of on merits The latest authority on this point is the case of Ibrahim v. Muhammad Hussain PLD 1975SC457 in which their Lordships of the Supreme Court observed as follows: "This brings into bold relief the provisional character of the order made under the first part of section 13(6) which in the event of default need not necessarily result in the striking off the defence and order of ejectment. The possibility cannot be entirely excluded that the Rent Controller, upon the final determination under the second part of the clause, comes to the conclusion that the tenant was never in default. The provisional fixation of current rent and the amount of arrears, under the first part of the clause remains provisional and until it is followed by final determination or the culmination of the other contingency postulated in the clause namely striking off the tenant's defence and putting the landlord in possession, the order would not be appealable under section 15(1) or else a provisional fixation of current rent or past arrears would per se be equated with the default and striking off the defence within the meaning of section 15(1) of the Ordinance, for which, so far as can be seen, there is no warrant in law."
5. The documents produced by the parties at the time of the passing of an order under subsection
(6) of section 13 are taken into consideration as they appear to be without insisting for their formal proof which cannot be dispensed with if they are desired to be taken into account for the purpose of the final decision of the case. The final decision is to be given on the basis of evidence on the record and if the documents considered at the time of passing an order under subsection (6) of section 13 are not made part of the evidence before the Rent Controller proceeds to record the final decision he cannot look into them for the purpose of taking that decision. Therefore, the mere fact that, in the present case, the learned Rent Controller had taken the disputed receipts into consideration while giving a direction under subsection (6) of section 13 does not mean that they had been admitted in evidence even for the purpose of final determination of the question of default. If the appellant wanted the two tribunals below to give him credit for the said receipts while ultimately deciding the question of default he should have proved their execution by examining Muhammad Akbar who is alleged to have issued those receipts. Besides, he ought to have established by means of convincing evidence that Muhammad Akbar was duly authorised by the respondent, Mst. Fahmida Begum to receive rent on her behalf and issue receipts therefor. This, however, was not done by the appellant. The two lower tribunals were, therefore, justified in not taking into account the receipts in dispute while giving a final verdict on the plea of default raised by the respondent.
6. As there is no substance in this appeal, it is dismissed in limine. The appellant is, however, allowed one month's time to vacate the premises in dispute.