' The facts giving rise to this second appeal are that the appellant, Ch. Wali Muhammad filed an application, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, for ejectment of Hakim Pir Fateh Shah from a house.
Hakim Pir Fateh Shah died during the pendency of the ejectment proceedings whereupon the respondents, Noor Ahmad Shah and others were brought on the record as his legal representatives. On 18th December, 1976, the respondents were directed, under the first part of subsection (6) of section 13 of the Ordinance, to deposit rent at the rate of Rs, 25 p. m., with effect from 21st October, 1961, amounting to Rs, 4,550 before 18th February, 1977 as also future rent at the said rate. The respondents, however, deposited Rs, 2,700 and not Rs, 4,550 as directed. Therefore, the Rent Controller, who had made order regarding the deposit of rent, struck off their defence and ordered their ejectment. On this, the respondents went in appeal before an Additional District Judge who, while accepting the appeal, set aside the order of ejectment passed against the respondents and remanded the case tb the learned Rent Controller for its disposal on merits. The appellant has, therefore, filed this second appeal to challenge the order of learned Additional District Judge.
2. It is not disputed that after the order for deposit of rent had been made, the respondents deposited Rs, 2,700 and not Rs, 4,550 as directed by the learned Rent Controller. Learned counsel for the respondents, however, submitted that before the order of the learned Rent Controller regarding the deposit of rent the respondents had already deposited Rs, 1,975 in the office of Rent Controller as rent payable to the appellant and as the said amount coupled with the sum of Rs, 2,700 deposited after the aforesaid order made a total of Rs, 4,675, their defence could not be struck off.
3. In reply, learned counsel for the appellant maintained that the respondents or their predecessor- in-interest had not paid any rent since 28th October, 1960 when the tenancy involved in the present case came into existence but while making order under the first part of subsection (6) of section 13 of the said Ordinance, the learned Rent Controller did not ask the respondents to deposit the arrears of rent for that period of tenancy for which the appellant's claim had become time barred.
The arrears of rent which he required the respondents to deposit were in regard to the period of three years immediately preceding the date of the said order of the learned Rent Controller as the appellant could claim these arrears by filing a civil suit on the said date. According to the learned counsel for the appellant, therefore, any deposit of rent made by the respondents in respect of the period preceding the period for which the arrears of rent had been worked out by the learned Rent Controller could not be taken into account for the purpose of determining the question whether the respondents had secured compliance with the order of the learned Rent Controller regarding the deposit of rent. It was pointed out by the learned counsel for the appellant that out of the amount of Rs, 1,975 deposited by the respondents before the order of the Rent Controller the amount of Rs, 1,105 was in regard to the period preceding the period covered by his order and, therefore, it could not be taken into account.
4. The plea raised by the learned counsel for the appellant found favour with the learned Rent Controller and, therefore, he struck off the defence of respondents, under the second part of subsection (6) of section 13 of the said Ordinance, and directed them to vacate the house in dispute. On appeal by the respondents, the learned Additional District Judge took a contrary view and held that the rent deposited by them before the order of the learned Rent Controller was advance rent which, together with the amount of rent deposited by the respondents after the order of learned Rent Controller, made a total of Rs, 4,675. As this amount was in excess of the amount of Rs, 4,550 required to be deposited in pursuance of the order of Rent Controller, the learned Additional District Judge found no default on the part of the respondents.
5. The deposits made by the respondents before the passing of order under the first part of subsection (6) of section 13 are spelt out in an undated application of the respondents. According to report, dated the 21st December, 1977, made on it by the Civil Nazir, total amount of the said deposits comes to Rs, 1,975. This amount includes the deposits of Rs, 765, Rs, 170 and Rs, 170, made on 2nd June, 1961, 29th July, 1961 and 25th September, 1961 respectively. The aggregate of the said three deposits is Rs, 1,105. If this amount is taken into consideration, the total amount deposited by the respondents before the passing of the order regarding the deposit of rent would come to Rs, 1,975 and this amount coupled with the sum of Rs, 2,700 deposited by the respondents after the said order would exceed the amount of arrears required to be deposited under the order of the Rent Controller. On the contrary, if the amount of the said three deposits is not taken into account, the amount of arrears deposited by the respondents before and after the order of the learned Rent Controller would make a total of Rs, 3,570 which is less than the amount of Rs, 4,550.
6. Now, the question to be determined is whether the said three deposits can be taken into consideration. As indicated above, the learned' Rent Controller had directed that the arrears for the period following 21st October, 1961 amounting to Rs, 4,550 shall be deposited before the stipulated date. Since the claim of the appellant in regard to arrears for the period preceding the said date had become time-barred, he purposely did not require the respondents to deposit those arrears, although it was alleged by the appellant that he had not been paid rent since 28th October, 1960.
The amount of the said three deposits, namely, Rs, 1,105, which related to the period preceding 21st October, 1961 and for which too the appellant's claim had become time barred, cannot, therefore, be adjusted towards the amount of arrears determined by the learned Rent Controller.
7. As explained above, after excluding the said three deposits from consideration, the total amount deposited by the respondents before and after the order of the learned Rent Controller comes to Rs, 3,750. This amount falls short of the amount of Rs, 4,550 which was required to be deposited in pursuance of the order of the learned Rent Controller. It would, therefore, follow that the respondents had failed to comply with the order made by the learned Rent Controller under the first part of subsection (6) of section 13 of the Ordinance and consequently he was justified in striking off their defence and ordering their ejectment under the second part thereof. In this view of the matter the order of the learned Additional District Judge cannot be affirmed.
8. Resultantly I accept the appeal with costs, set aside the order of the learned Additional District Judge and restore that of the learned Rent Controller. The respondents are, however, allowed a period of four months to vacate the disputed premises.