' Precisely stated the facts of the case, as discernible from the available record, are that respondent No.3 filed the ejectment petition, against the petitioner seeking the possession of the house in dispute on the grounds of default in the payment of rent, damaging the property in question and his personal need, before the learned Rent Controller. In addition thereto he also claimed a sum of Rs.1,23,000 as arrears of rent, as well as costs of repairs. The petitioner resisted the said ejectment petition through filing the written reply, controverting the allegations made in the ejectment petition and pleading that he had regularly been paying the rent to the respondent No.3. The learned Rent Controller, on 10-4-2001, framed as many as ten issues, including the one viz. "Whether the petitioner is entitled to recover an amount of Rs .1,23,000 from the respondent? OPA."
Subsequently the petitioner filed an application, under Order VII rule 11, C.P.C for rejection of the plaint on the ground that proper court-fee has not been paid, which application was opposed by respondent No. 3 and ultimately the learned Rent Controller rejected the said application, vide order, Dated 15-11-2001 .Thereafter, the respondent No.3 filed the application with the prayer that order under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, thereby directing the petitioner to deposit the arrears of rent, be passed. The learned Rent Controller, after calling for the reply from the petitioner, passed an order under section 13(6) of Ordinance 1959, thereby directing the petitioner "to deposit Rs.4000 per month from June, 2000 to March, 2002, including Rs.55,000 arrears till 10-4-2002, otherwise his defence would be struck of" vide order, dated 19-3-2003.
Against the said order, the petitioner filed the Constitutional petition (W.P. No.5870 of 2002) before this Court but the same was dismissed on the ground of non maintainability. The petitioner did not comply with the terms of rent deposit order, dated 19-3-2002 and resultantly, the learned Rent Controller struck off petitioner's defence and while accepting the ejectment petition held that "the petitioner is entitled to recover the arrears of rent", vide order, dated 20-4-2002. The petitioner challenged the said order through filing the appeal but the same was also dismissed by the learned Additional District Judge, vide judgment, dated 18-7-2002. The appellate order was not further assailed by the petitioner before any higher forum, thus, the same attained finality. The respondent No.3 filed the execution petition, thereby praying that warrants of possession may be issued and the possession of the house may be delivered to him. During the execution proceedings, the petitioner delivered the possession of the house in question to respondent No.3, however, the learned Executing Court issued warrants of arrest of the petitioner for the recovery of arrears of rent etc., as prayed for in the ejectment petition. Seemingly aggrieved from the issuance of warrants of arrest, the petitioner filed the objection petition before the learned Executing Court but the same was dismissed by the learned Rent Controller, with the directions to the petitioner to deposit a sum of Rs.1,43,000, vide order, dated 13-6-2003. Petitioner's appeal, against the said order, was dismissed by the learned Additional District Judge, vide judgment dated 12-12-2003, hence the present Constitutional petition.
2. Learned counsel for the petitioner has contended that the learned Rent Controller, while striking off the defence of the petitioner, under section 13(6) of the Ordinance, 1959, without determination of the amount of arrears of rent and the costs of repairs, has illegally held that the petitioner is entitled to recover the arrears of rent and, thus, according to the learned counsel execution proceedings could not have been initiated for the recovery of arrears of rent in the absence of the determination of the said amount by the Court of law. He, while referring to para.2 of the reply, filed by respondent No.3 to petitioner's application under Order VII, rule 11, C.P.C., has further submitted that the respondent No.3 has relinquished his right to recover the said amount, and is now estopped to file the execution petition for the recovery of the waived amount. He has relied upon Khawaja Anwar Hassan v. Naveed Ahmad Chaudhry and 2 others (PLD 2002 Lahore 355)
Conversely, the respondent No.3 supported both the order/ judgment.
3. Upon the examination of the available record, I find that as the petitioner failed to comply with the terms of the rent deposit order, passed by the learned Rent Controller, in exercise of its powers under section 13(6) of the Ordinance, therefore, the learned Rent Controller rightly struck off petitioner's defence and accepted respondent No.3's ejectment petition, however, while, accepting the ejectment petition the learned Rent Controller could not hold that the petitioner is entitled to recover the arrears of rent. It is evident from the record that although on the said controversy, the learned Rent Controller framed issue No.3, yet no determination was made by the learned Rent Controller as to whether , the said amount is actually "due" against the petitioner. According to the provision of section 13(6) of the Ordinance, if the tenant makes the default in complying with the terms of the rent deposit order, the learned Rent Controller is authorized, under the law, to strike off the defence of the tenant and put the landlord in possession, however, the said provision of law does not empower the learned Rent Controller, without determining the amount of the rent "due", to direct that the said amount be paid to the landlord. In this case, the stage of final determination did not reach and the learned Rent Controller, while striking off petitioner's defence has erroneously held that the respondent No.3 is entitled to recover the arrears of rent. Had the petitioner complied with the rent deposit order, in that case of course the learned Rent Controller, after adjudicating upon the issues already framed, while deciding the Issue No.3 against the petitioner and after due determination about the arrears of rent, could have held that respondent No.3 is entitled to recover the arrears of rent. However, in this case the said stage did not reach and the defence of the petitioner was struck off. The learned counsel for the petitioner has rightly relied upon the case of Khawaja Anwer Hassan, ibid, wherein, it has been held that where defence has been struck off under the first part of section 13(6) of West Pakistan Urban Rent Restriction Ordinance, the stage did not reach that point and, therefore, the Rent Controller had no jurisdiction to determine the final amount due from the tenant and, thus, orders, passed by the ,Courts directing the tenant to make payment of rent, were declared to be illegal and without jurisdiction.
4. In view of the other contention of the learned counsel for the petitioner, I have examined the record and find that the petitioner filed the application, under Order VII, rule 11, C.P.C., for the rejection of the ejectment petition on the ground that although the petitioner has, prayed for the recovery of Rs.1,23,000, yet the petition has neither been properly valued for the purposes of jurisdiction nor proper court-fee has been paid. In reply to the said application, the respondent No.3 specifically asserted in preliminary Objection No.4 and in para.2 on merits that he has relinquished his claim to the extent of recovery, as is evident from the affidavit, annexed with the petition. It would be relevant to reproduce the said portion of the reply, which reads as follows:-- {{URDU TEXT}} ' I have also perused the affidavit, filed by respondent No.3, before the learned Rent Controller and find that in para.7 of his affidavit, he has specifically stated that he has relinquished the claim to the extent of Rs.1,23,000. For ready reference para.7 of the affidavit is reproduced below:-- {{URDU TEXT}} In view of the contents of application and its reply, the learned.Rent Controller, after finding that "it appears that Haji Fazal Hag, petitioner/respondent, has withdrawn his claim regarding the recovery of money and now he wants to proceed only a petition for ejectment", dismissed petitioner's application, under Order VII, rule 11, C.P.C., vide order, dated 15-11-2001, which order was not assailed by any of the parties and, thus, attained finality. In view of the categorical assertion by the respondent No.3 about the relinquishment of his claim regarding the recovery of alleged outstanding amount, now it does not lie in the mouth of the respondent No.3 to press the execution petition for the recovery of the amount. It appears from the averments of the execution petition that the respondent No.3 was conscious of the fact that he has relinquished his claim regarding the recovery of the arrears of rent etc. And an order of the Rent Controller, dated 15-11-2001 in this regard was passed and that was the reason why he did not pray in his execution petition for the recovery of the amount. I find from the execution petition that the only prayer was that the possession of the house may be delivered to him through the issuance of warrants of arrest.
According to both the parties, the possession of the house in question had already been delivered to the respondent No.3 in execution of the ejectment order.
5. In the above perspective, I have examined both the impugned order/ judgment and find that both the Courts only, after taking into account the rent deposit order and the ejectment order, dated 20-2-2002, rejected petitioner's objection petition and his appeal in complete oblivion of the fact that there was no determination by the learned Rent Controller regarding the "amount due" and that the respondent No.3 has relinquished his claim and the learned Rent Controller had already held during the ejectment proceedings, as noted above, that the respondent No.3 has withdrawn his claim regarding recovery of amount. Both the Courts have passed the impugned order/judgment in complete oblivion of the facts and law on the subject, thus, the same are not sustainable in law and liable to be declared as illegal and having no legal effect.
6. As the ejectment order has already been executed and the respondent No.3 is held not to be entitled 'for the recovery of amount, therefore, the execution petition cannot further proceed.
7. Upshot of the above discussion is that the present petition is allowed and the impugned order, dated 13-6-2003 and the judgment, dated 12-12-2003 are declared to be illegal, having no legal effect and thus set aside with no order as to costs. As, according to both the parties the possession had already been delivered to the respondent No.3, therefore, the execution petition stands consigned to record.