' KH FAROOQ SAEED.J.---This is second appeal by the appellant against the respondents under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 against the judgment dated 7-4- 2007 passed by learned Additional District Judge, Lahore. In the above order the judgment of the learned Rent Controller was maintained by holding that the same is as per law, rules and facts of the case.
2. Brief facts of the case are that the respondents filed an ejectment petition against the appellant on 20-6-2001 in Court of Senior Civil Judge, Lahore. The respondents inter alia claimed before the said Judge that the petitioner had impaired the utility and value of their property by not properly utilizing the building and facilities as well as damaging the same by not taking good care as was required as a tenant. The petitioner contested the same mostly on the ground that the respondents had not fulfilled the conditions of the agreement. Some example in terms of non- providing of amenities is like Sui gas, standby generator, kitchenette and lift were mentioned. The settled rent for the building however, was Rs,2,25,000 per month. On the request of the respondents, the Rent Controller directed the petitioner vide order dated 4-7-2003 to pay Rs,9,00,000 which he failed and as a mandatory requirement, his evidence was struck off. In the meantime, the petitioner decided to evacuate respondent's property and hand over the possession to the land lords. As a result, the petitioner claim that he has not been provided amenities as per the agreement between the two of them was not brought to discussion. After receiving the possession as per petitioner's counsel, the respondent should have considered the matter as settled but he continued pursuing the ejectment petition, though, he had already received the possession. The Rent Controller, however, allowed the application of the respondent landlord and vide judgment dated 16-10-2006 inter alia held that the appellant will have to pay rent from the month of January, 2001 to October,2001 with increased rent @ 25% of the previous rate. The petitioner challenged the judgment before the Additional District Judge, Lahore, who dismissed the appeal of the petitioner vide judgment dated 7-4-2007.
3. The petitioner now inter alia has challenged that the lower Court had drawn the conclusion without hiring the petitioner. It has been challenged that the petitioner was not given exact date for filing of the rent, hence his evidence should not have been struck off. Furthermore, that the Rent Controller does not have power to determine the amount of rent and at best what they could do after striking off the evidence is to direct for eviction.
4. Learned counsel for the petitioner/appellant in support of his claim argued that the Rent Controller has no jurisdiction to review his own order in the manner that firstly he asked the petitioner to produce his evidence and later he refused to entertain the same by striking it off on a request of the respondent. His action to ask the petitioner to produce the evidence and later recalling the order dated 30-4-2005 amounts to review of the order which is not within jurisdiction.
His reliance is on PLD 1981 SC 94, PLD 1973 Lahore 95, -1983 CLC 2109, PLD 1966 Lahore 53 and PLD 1972 Lahore 603. Learned counsel for the petitioner, however, did not produce the copies of the judgments. In any case the same will be taken up in the later part if required.
5. The other claim of the learned counsel for the petitioner is that since the Rent Controller has failed to allow the petitioner to adduce the evidence which could have changed the fate of the petition, the order should have been set aside by the learned Additional District Judge, Lahore. His emphasis remained that since it is a case of non-hearing of the petitioner, that the two orders below are not lawful hence, should have been set aside.
6. Learned counsel for the respondent first of all challenged the very petition by saying that before this court only the question of law arising from the order impugned can be discussed. Since no question of law formally has been proposed and the petition has discussed mostly the questions of fact, the same is liable to be dismissed in limine. In support of his claim he has referred "Haroon Akhtar and 5 others v. Mst. Khatoon Hadi" (1981 CLC 1104) and "Sheikh A Muhammad v. Mian Muhammad Abdullah and 10 others" PLD 1971 Lahore 210. In the two judgments the Hon'ble Court has held that the issue must be one which float from the surface of the order. If the question does not arise out of order impugned, it cannot be discussed or disposed of. He added that the claim that the Rent Controller has .Not given due consideration to the issue is a misconception. He has properly framed issues which were neither contested before the Rent Controller nor before the first appellate authority. Regarding the authority to determine the rent after eviction or the handover of possession, he said that the new Para in section 13(6) was added in 1960 and same has been dilated in detail in judgment of the Hon'ble Supreme' Court of Pakistan reported as "Mukhtiar v. The State and another" 2003 SCMR 1479. The Hon'ble Supreme Court in similar circumstances had confirmed the striking off the defence by the Rent Controller. Referring 1974 SCMR 504 "Syed Akhlaque Hussain v. Habib Ismail Bajwa Advocate" he said that where in a case the petitioner inter alia has challenged the determination of rent, the Rent Controller is bound to finally determine the same and unless the same is finally concluded the petition cannot be considered as disposed. The aforementioned judgment in his opinion is direct on the issue and has subsequently been followed in the cases reported as Shah Muhammad and 8 others v. Additional District Judge I, Bahawalpur and 7 others PLD 1990 Lahore 64 and Ghulam Rasool v. Said Rasool and others (PLD 1990 Lahore 457).
7. Another issue which is a part of his preliminary objection is that in second appeal question of fact cannot be raised. The petitioner had not complied with the direction of the Rent Controller which in his statement of fact is not being denied. The arguments that he was not aware of the cut of date for the payment of the amount is nothing more than a lame excuse. Not only that the law in terms of section 13(6) is clear with respect thereto, yet the petitioner itself in implied terms has accepted the default. Since it is a statement of fact which in a manner is not being denied, there is no question of now challenging it before this Court. In support of his claim he has referred the case of Malik Raheed ur Rehman v. Khyzar Hayat through L.Rs 2005 CLC 1723).
8. Regarding whether it was a case of recall of the order by the Rent Controller. He produced before this Court copy of the order sheet. The facts regarding the issue are that on 26-11-2004 the Rent Controller passed an order in which the defence of the respondent was struck off. However, by a mistake on 30-4-2005 through another order after recording the petitioner landlords evidence case was fixed for recording evidence of the respondent. It was obviously a mistake as there was already an order which had struck off the evidence of the respondent tenant. This mistake could always be rectified and for carrying out a rectification recalling an order is an inherent power.
Moreover, the order through which the learned Rent Controller had allowed production of the evidence was an interlocutory order which could always be reviewed as has been held in various judgments including Haji Khudai Nazar and another v. Haji Abdul Bari" 1997 SCMR 1986. Further section 5-A provides for increase in fair rent after the three years of the agreement Section 5-A was inserted by Punjab Amendment Act III of 1991, through which the rent of a non-residential building automatically increase by 25% at the end of every three years.
9. The facts mentioned in the orders of the Rent Controller as well as learned Additional District Judge are not being disputed by any one.
' The issues before this Court, therefore, basically are also the same as were before the Rent Controller. The same are as follows:--
(1) Whether the petitioner is entitled to recover the arrears of rent from the respondent from the month of January to October, 2001 at the rate of Rs,2,81,250 per month?
(2) Whether the provisions of section 5-A of Rent Restriction Ordinance are not applicable in this case?
(3) Relief.
10. So far as the claim of the petitioner that he has not been given the chance to produce his evidence is concerned, it is the petitioner itself who is to be blamed for the same. The action of the Rent Controller to allow the petitioner to adduce his evidence was obviously for providing him an opportunity to support his defence. The settled facts being that during tenancy period the petitioner enjoyed the tenancy rights and used the premises and later vacated is obviously not in dispute. The claim that the respondents have not provided with the agreed facilities should have separately been contested at earlier stage and the action to challenge the same while defending the ejectment petition as a respondent in itself weakens the claim. This however, is not a matter under debate before this Court. The failure to deposit the rent under direction of the Rent Controller was liable to an obvious result. The instruction to strike off the defence under Section 13(6) is very clear and rather obligatory in its application. The same speaks as follows:-- "Section 13(6).--In proceedings under the section on the first date of hearing or as soon as possible after that and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the [fifteenth] day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Collector shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant".
11. As is clear from the above language, it is not in fact a discretion of the learned Rent Controller.
The law says if the tenant "makes default his defence shall be struck off and landlord put in the possession of the property without taking any further proceedings in the case". It is, therefore, not an option for the learned Rent Controller. In the presence of this language, since there was no option the order dated 30-4-2005 even otherwise was not enforceable. This is a part of the continuation of the same proceedings. The learned Rent Controller directed for production of the evidence which was subject to payment of determined amount of rent. On non-fulfillment of the obligation in terms of default and non-payment, he was legally bound to strike off the defence and was thus obviously obliged to do what he did.
12. The other argument that he had no power to determine the rent also is baseless. The language of section 13(6) above further provides that "Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord subject to adjustment of approximate amount by the tenant".
13. Coming back to the other issue that the Rent Controller does not have the power to determine the enhancement in rent, the same also is fully covered in lines mentioned above. Section 13 (6) clearly provides that the Rent Controller shall finally determine the amount of rent and the judgment referred by the respondent with special reference to 2003 SCMR 1479 is direct on the issue. The relevant para. Of the same is as follows:-- "The second stance of the learned counsel was that the learned Additional District Judge has finally determined the rent due against the petitioner and has almost granted a decree thereof which was without jurisdiction. A new Para was inserted at the end of section 13(6) of the Rent Restriction Ordinance by section 5(b) of Ordinance XIII of 1960 is as follows:-- "The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant".
' This insertion authorizes the Rent Controller to finally determine the amount due from the tenant and it further authorizes him to direct that the same may be paid to the landlord. This is an order under section 13 of the Ordinance".
11. However, since the language of the law is very clear and there is no doubt one may not require further references. This is obviously for IF the reasons that for interpretation of the statute the best method of interpretation is to remain within the language of law and not to extend the meaning by way of interpretation.
15. Regarding section 5-A which deals automatic increase in rent, the provision again is mandatory. Where during the tenancy period from the date of agreement to the next three years, there is no increase in rent, the addition of 25% is automatic. This has been so provided in the aforementioned section 5-A of the Rent Restriction Ordinance and is applicable in respect of non- residential building. The only exception to this rule is the landlord consent. Otherwise than that this addition is automatic and without any exception. The Rent Controller, therefore, was again by law legally bound to order for the increase on the request of the landlord. In this regard the observations given by the learned Additional District Judge are relevant and direct on the issue. If for any reason one considers that the petitioner has been deprived of the right of being heard, the Rent Controller is governed by Rent Restriction Ordinance, 1959. He may follow the Code of Civil Procedure in conducting his proceedings or may remain within the Ordinance of 1959. However, he is not stopped to evolve his own procedure for disposal of the petition before him. These findings have the support of the judgments reported as 1995 CLC 1933, 2002 CLC 1206, 2001 SCMR 577, 1994 MLD 293 and 1997 SCMR 1986.
16. Upshot of the above discussion therefore is obvious. The petitioner was very well entitled to recover the arrears of rent at enhanced rate of Rs,2,81,250 per month and that provisions of section 5-A of Rent Restriction Ordinance are fully applicable. This appeal is considered of no merit hence is dismissed.