' This is a second appeal against an order for the ejectment of the appellant, S. I. H. Zaidi, from a house belonging to the respondent, M. Shujaat Usmani.
2. The respondent had purchased the house in dispute from one Manzoor Elahi. Before its purchase by the respondent, the house was occupied by the appellant as a tenant. His ejectment was sought by the respondent alleging that after the purchase of the house by him, the appellant did not pay any rent to him and had also caused damage to the house. These allegations were controverted by the appellant. It was also pointed out by the appellant that the respondent had not served him with notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance).
3. The learned Rent Controller, who heard the application, framed the following issues for determination :- (1)Whether notice under section 13-A has been served upon the respondent ?
(2)If issue No, 1 is proved whether the respondent has been regularly paying the monthly rent to the petitioner ?
(3)Whether the respondent has materially damaged the premises in dispute ?
(4)Relief.
4. By his order, dated the 28th March, 1978, the learned Rent Controller decided the first and third issues against the respondent. While dealing with the second issue, the learned Rent Controller held that as the notice under section 13-A of the Ordinance had not been served on the appellant, his ejectment could not be ordered on the ground of default. It was, however, noted by him that the appellant had not deposited rent in terms of his direction under subsection (6) of section 13 of the Ordinance. He, therefore, struck of his defence and ordered his ejectment.
' The appellant took an appeal to an Additional District Judge to challenge the order of the learned Rent Controller. The learned Additional District Judge reversed the findings of the learned Rent Controller on the first two issues and also did not see anything wrong in the order of the learned Rent Controller by which he had struck off the defence of the appellant. He, therefore, dismissed the appeal before him. Feeling aggrieved by the dismissal of his first appeal, the appellant has come up in second appeal to this Court.
6. Before considering the contentions raised by the learned counsel for the appellant, I will like to point out that it was on 27th May, 1977 that the appellant was directed to deposit arrears of rent for the period from 1st November, 1974 to 30th of April, 1977, at the rate of Rs, 100 per mensem, total Rs, 3,000, before the 8th September, 1977 as also the future rent for each month, at the aforesaid rate, before the 15th day of the next month. The appellant, however. Did not make any deposit whatsoever and stated this fact in an application made on 3rd December, 1977. Thereafter, on 10th January, 1978, the respondent made an application for striking off his defence. In the order of the learned Rent Controller, the date of the said application of the respondent is given as "10-1-1971'. But learned counsel for the appellant has informed me that the correct date is 10th January, 1978. The learned Rent Controller obtained the appellant's reply to the above application and then, on 28th March, 1978, struck off his defence and ordered him to vacate the premises in dispute.
7. Learned counsel for the appellant contended that after deciding the issues, in favour of the appellant the learned Rent Controller could not strike off his defence and order his ejectment. He cited the case of Major Feroze Din Khan and others v. Sh. Muhammad Amin (1) to support his contention. The case under report is, however, distinguishable from the one in hand. In the precedent case the tenant's defence was sought to be struck off at the stage of second appeal inter alia on the authority of the case of Qazi Qahir Khan v. Abdullah Jan (2) but Mr. Justice Muhammad Akram of this Court (as his Lordship then was) declined to do so. While distinguishing the case of Major Feroze Din Khan and others from the Quetta case of Qazi Qahir Khan, his Lordship observed as follows :- "But as already mentioned the Quetta case is distinguishable on facts. The matter in dispute had gone back in remand on the Original side before the Controller and the proceedings for the ejectment of the tenant were still pending before- him, when he was called - upon to exercise the powers to strike off the defence of the tenant without going any further into the merits of the case."
' In the case in hand, "the proceedings for the ejectment of the tenant were still pending before" the learned Rent Controller "when he was called upon to exercise the powers to strike off the defence of the tenant". The mere fact that he. Had recorded findings on the issues framed by him does not mean that he had decided the case and had thus become functus officio. It seems that, like a conscientious officer, he decided the issues on merits also, so as to obviate the necessity of the case being remanded to him in the event . Of his order under the second part of subsection (6) of section 13 of the Ordinance being set aside by any of the superior Courts. The course adopted by the learned Rent 'Controller was also substantially the same as suggested in the following observations in Syed Masood Hussain and others v. Muhammad Sae d Khan and others (3) :- ' Before I dial with the case on merits I wish to observe that the defence was struck by the learned Rent Controller at a stage when the entire evidence had been recorded and he had only to hear the arguments to dispose of the petition. There is no doubt as to the fact that he child even at that late stage take action under section 13(6) of the Rent Restriction Ordinance, but since the case was complete for dispose on merits as well, he should have in all propriety passed an order both on merits and under clause (6) of section 13. It would have saved the parties from a protracted litigation and repeated appeals in the same case. It is desired on the part of the judicial officers that they should as far as possible, decide on all the matters arising between the parties, inasmuch as a piecemeal trial leads to unnecessary multiplicity of litigation. The object of the law is too well known to be re-emphasized that there should be an end to litigation and one should aim at avoiding superfluous proceedings which are bound to cause unnecessary inconvenience and hardship to the parties."
' I am, therefore, unable to agree with the learned counsel for the appellant that having recorded his findings on the merits of the case, the learned Rent''
(1) PLD 1967 Lah. 966 (2) PLD 1963 Quetta 21
(3) PLD 1965 Lah. 11 Controller had no jurisdiction to strike off the defence of the appellant and order his eviction.
8. The next plea raised by the learned counsel was that the respondent had waived his right to seek eviction of the appellant by invoking the provisions of subsection (6) of section 13 of the Ordinance.
There can be no waiver of his right by a party unless there occurs an inordinate delay in the exercise of that right by him after it becomes known to him. In the C instant case, as indicated earlier, it was on 3rd December, 1977 that the appellant had disclosed that he had not deposited rent as directed by the learned Rent Controller. After that date, the respondent did not wait for long to press into service the provisions of subsection (6) of section 13 of the Ordinance inasmuch as it was on 10th January, 1978 that he moved the application for striking off his defence. Thus, the total delay on his part in making the above application is of above one month. Obviously, such a negligible delay is not enough to uphold the plea of waiver which must, in the circumstances, fail.
9. It was also urged by the learned counsel for the appellant that the order relating to the deposit of rent was not in accordance with law inasmuch as it was made without determining the relationship of landlord and tenant between the parties. As pointed out by the learned Additional District Judge in the impugned order, the appellant had challenged the aforesaid relationship and, therefore, the following preliminary issue was framed :- ' Whether the relationship of landlord and tenant exists between the parties ?
' This issue was answered in the affirmative, vide order dated the 16th May, 1977. Learned counsel for the appellant has also read out to me a statement of the appellant alleging that he had been paying rent for the premises in dispute. In view of the aforesaid statement he would be treated as a tenant within the meaning of clause (i) of section 2 of the Ordinance. There is, thus, no force in the contention of the learned counsel for the D appellant that as the relationship of landlord and tenant did not exist between the parties, no order could be made by the Rent Controller for the deposit of rent.
10. The last argument advanced by the learned counsel for the appellant was that the learned Rent Controller had erred in working out the arrears of rent. He read out to me, from his brief, the relevant order of the Rent Controller which shows that when he made that order there was no dispute regarding the rate of rent, namely, Rs, 100 per mensem. The respondent's case was that the appellant had not paid rent from November, 1974. As against this, the appellant pleaded that he had paid the entire rent regularly but the respondent did not issue any receipt therefor. The learned Rent Controller, therefore, directed him to deposit the entire amount of rent for the period of default as alleged by the appellant. Obviously, this was an order of provisional nature and if the appellant had deposited the amount of rent as directed, that amount or such part thereof as was not ultimately found due from him would have been refunded to him after the disposal of case. In the circumstances in which the learned Rent Controller was placed, therefore, the order made by him was not open to any legitimate exception.
11. No other point was canvassed by the learned counsel, and as the contentions raised by him are devoid of force, the appeal in dismissed in limine.
12. The appellant is, however, allowed two months' time o vacate the premises in dispute.