Iftikhar Muhammad Chaudhry, CJ.--This petition for leave to appeal is directed against the order dated 13.3.2009 of the Lahore High Court, Rawalpindi Bench passed in Second Appellate Order No, 06/2009.
2. The petitioner is tenant in Shop No, 2 part of Property No, 12, Ground Floor, Chaudhry Plaza, Satellite Town, Rawalpindi. His landlord instituted application for ejectment against him in view of the fact that tenancy, which was admitted between the parties and increase of rent in terms of Section 5-A of the Punjab Urban Rent Restriction (Amending) Act, 1991, was not disputed as it is evident from the following para of the written reply of the petitioner: "Para No, 4 as stated is incorrect hence denied vehemently. In reply to this para it is submitted that as per rent agreement dated 20.7.1999 the petitioner received Rs,700,000/- in cash from the respondent as security which is still lying with the petitioner, who is legally bound to return the same. So far as Section 5-A of Punjab Rent Restriction (Amending) Act, 1991 an increase of 25% of rent after every three years is concerned it is submitted that the shop in question was rented out to the respondent @ Rs,8,000/- per month from 20.7.1999 initially for a period of 7 years extendable by the mutual consent of the parties and as per clause 6 of the rent agreement dated 20.7.1999 it was agreed between the parties that the rate of rent would be enhanced @ 15% after every three years and in this regard the first increase in rent was made on 21.7.2002 and since July, 2002 to June, 2005 the respondent had paid rent to the petitioner @ Rs,9,200/- per month. Second increase was made in July, 2005 and since July, 2005 till today we respondent had been paying the rent @ Rs,10,600/- per month after increase of 15% therefore, Section 5-A of Urban Restriction (Amending)
Act, 1991 is not applicable to the case in hand."
3. Learned Rent Controller passed order on 24.1.2008 for depositing the amount of arrears of the rent of Rs, 1,54,700/- on or before 15.3.2008. Admittedly, the order was not complied with and in the meanwhile, the petitioner filed constitutional petition before the High Court, which was dismissed, however, later on the outstanding amount was deposited on 7.7.2008. Learned Rent Controller on 12.5.2008 struck off the defence of the petitioner for not depositing the tent and for noncompliance of the order. Against this order, appeal was filed, which was dismissed by the learned Additional District Judge on 29.1.2009 and Second Appeal has also been dismissed by the learned High Court, Rawalpindi Bench on 13.3.2009, as such; this petition for leave to appeal has been filed.
4. Learned counsel for the petitioner has contended that the Rent Controller had no jurisdiction to make direction for deposit of rent, which has become barred by limitation. Reliance has been placed by him on the case of Ashfaqur Rehman v. Choudhry Muhammad Afzal (PLD 1968 SC 230), wherein it has been held that the Rent Controller acting under Section 13(6) West Pakistan Urban Rent. Restriction Ordinance, 1959 cannot direct the tenant to deposit rent in respect of which the legal remedy to recover had become barred under the statute of limitation, therefore, according to him, in view of such legal position, the defence of the petitioner tenant was not liable to be struck off.
5. To examine the arguments and the related proposition one has to keep in mind the development of the law after the pronouncement of above judgment it would be worth to mention that after introduction of the West Pakistan Rent Statues i,e, West Pakistan Urban (Rent Restriction)
Ordinance, 1959, latter on was adapted by all the. provinces on dissolution of West Pakistan (by operation of law). As far as the province of the Punjab is concerned, it had. incorporated Section 5- A in the Punjab Rent Restriction Ordinance, 1959; hereinafter referred to as the Ordinance, 1959' provided increase of .the rent of non-residential buildings at the rate of 25% of the rent already being paid by a tenant The perusal of this statutory provision reveals that there 'remained no requirement for a landlord to call upon, the tenant to increase the rent at the rate of 25% on the expiry of every three' years. This Court has examined the proposition in the case of Muhammad Irian v: Muhammad Zahid Hussain Anjum (2000 SCM R 207), wherein it has been held that the increase of 25% rent under provisions of Section 5-A of the Ordinance, 1959 would become due on expiry of three years and would be deemed to be a rent due. Also on the subject, in the case of Badruddin u. Muhammad Yousaf (1994 SCM R 1900), it has been held that the rent due would also include time-barred rent and a landlord thus would be competent to institute eviction/ejectment proceedings in respect of a time barred rent.
Keeping in view both these judgments, we are of the opinion that as far as the Rent Controller is concerned, he is always competent to pass an 'order under Section 13(6) of the Ordinance, 1959 by making direction to the tenant to comply with the same by depositing the rent due and the past rent as the case be or before the specific date/s. Duty has been cast upon the Rent Controller to pass an order in such behalf and in case the tenant had some reservations to such an order, firstly he can agitate the same before the Rent Controller. In the instant case, no reservation was expressed by the petitioner when such order was passed and subsequently, he filed Writ Petition No, 273/2008, which has also been dismissed on 8.4.2008. The said order of the High Court was not questioned before this Court and ultimately the order of the Rent Controller dated 24.1.2008 passed under Section 13(6), was complied with on 17.1.2000, therefore, we are of the opinion that the judgment, which has heavily been relied upon by the learned counsel for the petitioner in Ashfaqur Rehman's case, is not of any help to him in view of the above statutory law i,e, by means of Section 5-A of the Ordinance, 1959, which has created statutory duty upon the tenant to increase rent notwithstanding the fact whether it had become time barred, the Rent Controller can direct to deposit the same in compliance of the above said provisions and once the compliance has been made, the petitioner or the tenant can express his reservation before the Rent Controller for finally determining the same at the time of adjudication by contending that his ejectment could not be directed in view of given situation when there is no default and the claim of the landlord has become time barred but not by refusing or to commit default in the payment of rent nor the ejectment proceedings could be questioned merely for the reason that rent due was made part of the time barred. rent and therefore the ejectment application at least can be maintained under the Provisions of the Ordinance; 1959.
6. Thus, for the foregoing reasons, we see no merit in this petition, as such; the same is dismissed and leave to appeal is refused.