'GHULAM MUSTAFA MENGAL, J.--- The appellant preferred this appeal assailing the impugned order dated 31-7-2009 passed by the learned Rent Controller-cum-Civil Judge-IV, Quetta in case No,21 of 2008 praying therein for setting aside the same and dismissal of eviction application filed by respondents.
2. Facts leading to the present appeal, in brief, are that the respondents filed an eviction application under section 13 of the Rent Restriction Ordinance VI of 1959 against the appellant in the Court of learned Civil Judge-IV-cum-Rent Controller Quetta stating therein that the applicants-respondents' father was owner of the shop bearing municipal No,8-23/39 situated in Liaquat Bazar Quetta, who died in the year 1998. After his death, the applicants-respondents inherited the shop in question. The shop was rented out to the appellant by the uncle of respondents at the monthly rental of Rs,18,000, vide written agreement dated 19-5-2002. The rent of the shop was being received by the uncle of respondents till April, 2008. In the month of June, 2008, the respondents came to know that their uncle namely Sheikh Muhammad Amin succeeded in getting an ex parte decree in his favour by means of mis-representation and fraud from the Court of Senior Civil Judge-II, Quetta and transferred the property in question in his name. After having come to know about the said ex parte decree, the respondents through their attorney approached the said Court for setting aside the ex parte decree, which was accepted, vide order dated 29-9- 2008 and the revenue authorities reversed the mutation entries in the name of predecessor of respondents. The respondents also served a notice under section 13-A of the Rent Restriction Ordinance, 1959 on 11-10-2008 through their counsel requesting him to enter into tenancy agreement with the attorney of the respondents, but the appellant refused to do so, resultantly, the respondents filed an eviction application against the appellant in the Court of Civil Judge-cum- Rent Controller, Quetta on the ground of non payment of the rent of shop in question with effect from October, 2008. After receipt of notice, the appellant filed his written statement and raised certain legal objections and denied the relationship of tenancy. After framing of issues the respondents produced their witnesses and got recorded the statement of their attorney, meanwhile on 10-20-2009, the respondents moved an application under section 13(6) of the Ordinance, after filing of rejoinder the learned Civil Judge-cum-Rent Controller directed the appellant to deposit the rent at the rate of Rs,21,500 per month from the date of filing of eviction application till decision of the eviction application before 15th of each succeeding month. Against the said order, the appellant filed an appeal bearing F.A.O. No,42 of 2009 before this Court; after hearing the parties, the appeal was dismissed vide judgment dated 29-6-2009 in limine.
3. I have heard Mr. Muhammad Wassay Tareen, Advocate for appellant and Mr. Abdur Rasheed Awan, Advocate for respondents.
4. Mr. Muhammad Wassay Tareen, Advocate mainly contended that under section 13(6) of Urban Rent Restriction Ordinance, there are two stages for passing of order under section 13(6). First is on the first date of hearing and second is before framing of issues, which is mandatory in the law. He further contended that since the relationship of landlord and tenant between the parties is disputed, as such, the order under section 13(6) of the Rent Restriction Ordinance is totally illegal.
He has further contended that the trial Court has acted contrary to the judgments passed in cases of Kausar Butt v. Lt. Col. Syed Iftikhar Ahmed PLD 1991 Kar. 417 and Malik Abdul Rashid v. Muhammad Gulfam 1984 CLC 2835, Muhammad Daud v. Mst. Surriya Iqbal and 3 others 2001 CLC 1819 and Mst.
Razia Begum and others v. Senior Civil Judge (Rent Controller) Charsada and 2 others PLD 1996 Pesh. 8, wherein; it was held by the Division Bench that proceedings before Rent Controller in circumstances were coram non judice, ultra vires and without lawful authority because no legal justification existed for Rent Controller to have ordered for deposit of rent before assuming jurisdiction and deciding issue with regard to relationship of landlord and tenant between the parties in absence of evidence. He further submitted that the appellant is making payment of Rs,21,500 to Sheikh Amin, uncle of the respondent and that case is still pending before the civil Court.
5. While on the other hand, the learned counsel for respondents Nos.1 to 7 Mr. Abdur Rasheed Awan, Advocate vehemently opposed the arguments of the learned counsel for the appellant. He contended that the appeal filed by the appellant without payment of court-fee is not maintainable. He further argued that the appellant is admittedly tenant in the shop and the Rent Collector after considering the pleadings of the parties and the other documents has rightly directed the appellant to deposit the rent of Rs,21,500 per month from the date of filing of the eviction application onward before 15th of every succeeding month and no illegality has been committed by the Rent Controller. The learned counsel also drew my attention towards the following documents which are part and parcel of paper book:---
(1) Statement of AW-2, representative of Senior Civil Judge-II, Quetta, who produced the copy of order, dated 29-9-2008, page 63;
(2) Order dated 29-9-2008 passed by Court of Senior Civil Judge-II, Quetta in application No,2 of 2008 in the case titled Sheikh Muhammad Amin v. Widow of Sheikh Ghulam Nabi and others, page 65;
(3) Statement of AW-1 recorded in the case widow of Ghulam Nabi v. Gul Wali page 49;
(4) Order dated 6-11-2008 passed in Civil Revision Petition No,9 of 2008 in case title, Sheikh Muhammad Amin v. Widow of Sheikh Ghulam Nabi and others, page 51;
(5) Order dated 12-12-2008 passed in C.P. No,607 of 2008, page 177;
(6) Mutation No,53, whereby the disputed shop has been mutated in the name of Sheikh Ghulam Nabi on 14-11-1993, page 75;
(7) Notice under section 13-A of Urban Rent Restriction Ordinance dated 11-10-2008 issued by the counsel of respondents, page 103;
(8) Application filed by the appellant through counsel seeking 10 days time for challenging the order dated 29-6-2009 passed by High Court, page 151; 'Lastly, the counsel for respondents while concluding his arguments, relied on the case of Mst.
Mahmooda Begum v. Mst. Mahmooda Jan 1973 SCMR 131.
6. I have heard the arguments of the learned counsel for the parties, perused the record of the case with their assistance. Perusal of the record of the case indicates that after filing of the written statement and framing of issues on 4-3-2009, the learned Rent Controller directed the appellant to deposit the rent of the shop in the Court with effect from October, 2008 at the rate of Rs,21,500 per month before 15th of each succeeding month till final disposal of the eviction application, but he failed to comply with the order dated 4-3-2009 till passing the order dated 31-7-2009. The trial Court had left no option but to strike off the defence of the respondents. Resultantly the trial Court allowed the eviction application filed by the respondents vide order dated 31-7-2009 and proceeded to striking off the defence of the respondents and the appellant was directed to vacate the disputed shop bearing Municipal No,8-23/39, situated at Liaquat Bazar, Quetta and to hand over the vacant possession of the same to the respondents.
7. In the instant case, the tenancy is not disputed and the documents referred by the learned counsel of the respondents, it is proved that the respondents are the landlords and learned Rent Controller has not committed any illegality by passing the order dated 4-3-2009, it was obligatory upon the appellant to comply with the order of the trial Court and if in case of decision of issue in respect of non-existing of relationship of landlord and tenant between the parties, the -rent deposited in the Court will automatically be refunded to the appellant. It is pertinent to reproduce section 13(6) of the Rent Restriction Ordinance, as under:- "13(6) In proceeding under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent dues 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 Controller shall determine, such amount approximately and direct that 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."
8. A bare reading of section 13(6), it transpires that on the first date of hearing or as soon as possible after that date and before the framing of issues the Controller make an order for the deposit all rent due from him, but in my point of view yet it is not mandatory for the Rent Controller to direct the tenant to deposit the rent on the first date of hearing or before framing of issues. In case if the Rent Controller omits or fails to pass an order for deposit of rent on the first date of hearing or as soon as possible after framing of issues, it could not mean that the Rent Controller will be debarred from passing any order for deposit of rent. The Honourable Supreme Court in case Mst. Mahmooda Begum v. Mahmooda Jan 1973 SCMR 131 came to the conclusion that yet it does not mean that if the Rent Controller omits to make such an order before framing of issues, he is deprived of jurisdiction to do so at a subsequent stage. The liability of tenant to pay rent cannot disappear simply because issues have been framed by the Rent Controller in violation of the statutory provisions. Relevant observation of the honourable apex Court are reproduced herein below:--- "In interpreting these provisions one has to keep in mind the fact that the liability of the tenant to pay rent cannot disappear simply because issues have been framed by the Rent Controller in violation of the statutory provisions. We consider, therefore, that the learned Rent Controller was right in making the necessary order under subsection (6) of section 13 of the Ordinance, once it was brought to his notice that his predecessor had not passed the prescribed order on the first date of hearing or, at any rate, before the framing of issues. No question of lack of jurisdiction arose in these circumstances. "
9. Thus for the foregoing reasons I am of the opinion that the appellant has failed to make out a case of interference in the impugned judgment, thus the appeal having no merit is accordingly dismissed.