' MIAN HAMID FAROOQ, J.---Precisely the facts relevant for the decision of the present appeal are that the respondent filed an ejectment petition, seeking the eviction of the appellant from the shop in question on different grounds including default and his personal need. The appellant resisted the ejectment petition through filing the written reply, inter alia, pleading that the ejectment petition has been filed with mala fide intention and to usurp the "Pagri amount" of Rs.1,72,000. The learned Rent Controller passed an order, under section 13(6) of Punjab Urban Rent Restriction Ordinance, 1959, thereby directing the appellant to deposit the arrears of rent as well as the future monthly rent, vide order, dated 5-11-2002. The petitioner did not comply with the terms of the said order and consequently, the learned Rent Controller struck off his defence and accepted the ejectment petition, vide order, dated 17-12-2002. Petitioner's appeal was also dismissed by the appellate authority on 30-6-2003, hence the present second appeal.
2. Learned counsel for the appellant has submitted that both the Courts did not give any findings about repayment of the Pagri/securety amount of Rs.1,72,000, therefore, the appellant has completely been non-suited from claiming the said amount, as the said findings will operate against him in subsequent litigation. He, while replying upon Muhammad Hanif v. Mumtaz Ahmed (PLD 1986 Karachi 16), has further submitted that the agreement cannot be enforced. He has added that the defence of the appellant was closed qua the grounds taken by the respondent in his ejectment petition but the learned Rent Controller was under an obligation to take up the issue regarding the return of the security amount. He has alternately prayed that the appellant may be allowed to file a suit for recovery of the security amount. Conversely, the learned counsel for the respondent has supported both the orders.
3. Admittedly, the learned Rent Controller, as noted above, passed an order, under section 13(6) of the Ordinance, 1959, which was not complied with by the appellant and, thus, his defence was struck off. The learned counsel for the appellant did not challenge the said order but the only grievance of the appellant, as noted above, appears to be that there are no findings about the repayment/recovery of security amount of Rs.1,72,000.
4. Firstly coming to order passed under section 13(6) of the Ordinance. According to the principle laid down in a case reported as Muhammad Yousaf v. Muhammad Bashir and others (1990 SCM R 557) the default under section 13(6) is of a peculiar nature. The appellant has nowhere taken the plea that the learned Rent Controller either committed any illegality or exceeded from its jurisdiction, while passing the aforesaid order under section 13(6) of the Ordinance, thereby directing the appellant to deposit the arrears of rent and future monthly rent. Admittedly, the appellant failed to comply with the terms of the order, passed by the learned Rent Controller under section 13(6) of the Ordinance, therefore, the learned Rent Controller rightly, in exercise of its .Dowers under the said provision of law, after coming to the conclusion that the appellant committed default in compliance with the terms of the order, struck off the defence of the appellant and consequently accepted the ejectment petition. The learned Rent Controller has acted completely within the four corners of the provisions a of section 13(6) of the Ordinance, 1959 and passed a legal and valid order, which is not open to exception. Needless to mention that in case of the default of terms of order, passed under section 13(6) of the Ordinance, the learned Rent Controller has no discretion to condone it. If any case-law is needed, judgments reported Muhammad Yousaf v. Muhammad Bashir and others (1990 SCM R 557) and Syed Muhammad Zaman v. Abdul Khaliq (1991 SCM R 1982) can be referred. The learned appellate authority has also rightly confirmed the findings of the learned Rent Controller on this issue, to which no exception can be taken by the appellant.
5. As regards the contention of the learned counsel for the appellant regarding security amount, suffice it to say that the said question could only be decided by the learned Rent Controller, had the appellant complied with the terms of order passed under section 13(6) of the Ordinance. The said controversy could be resolved only after recording the evidence, but on account of the non- compliance of the order by the respondent, the case did not reach to the stage of the recording of the evidence. However, in the interest of justice and in view of the fact that the learned Rent Controller has allowed the respondent to file a suit to recover the arrears of rent, the appellant is also allowed to file a suit, if he so chooses, for the recovery of the alleged security/Pagri amount, and to that extent judgment stands modified. Needless to mention that if the said suit is filed, the same would be decided by the learned trial Court, after hearing the parties and of course in accordance with law.
6. Upshot of the above discussion is that the present appeal is partly allowed and the impugned judgment is modified to the extent that the appellant is allowed to file a suit for recovery of the alleged Pargi/ security amount, as noted above. ND order as to costs.