'IQBAL HAMEED-UR-RAHMAN, J.---By way of instant appeal, the appellant has called in question the orders of Learned Additional Rent Controller, Walton, Cantt, dated 7-2-2009; whereby order for deposit of Rs,5,58,000 as arrears of rent has been passed and dated 25-4-2009; whereby the defence of the appellant/respondent was struck off.
2. Facts of the case, succinctly, required for the determination of the instant FAO are that the respondent filed an ejectment petition under Section 17 of the Cantonments Rent Restriction Act, 1963 in the Court of learned Additional Rent Controller, Walton Cantt, Lahore with the averments that she is owner of double story house No,227, Block-S, situated in DHA, Lahore by virtue of sale- deed registered with the Sub-Registrar, Lahore Cantt. On 19-4-2006. It was further asserted that as her family was settled in America since 1993, she rented out the lower portion of the house to the appellant/respondent through her attorney Abdul Khaliq on 17-3-2003 against a monthly rent of Rs,15,500. That the appellant/respondent illegally, unlawfully unlocked the upper portion of the house and handed over its possession to his real brother. That the appellant/ respondent wilfully and deliberately did not pay the. Rent from February 2006, so the petitioner was constrained to file ejectment petition on account of default in payment and also for her personal use. Learned Additional Rent Controller, seized with the matter vide order dated 7-2-2009 ordered the appellant/respondent to deposit the arrears of rent amounting to Rs,5,58,000 before 5-3-2009 and further in terms of order dated 11-4-2009 struck off the defence of the appellant/respondent as he had failed to produce the receipts of arrears of rent. Both these orders have been impugned through the instant FAO.
3. Learned counsel for the appellant has vehemently contended that the appellant had specifically denied the relationship of landlady and tenant and under the law when the relationship of landlord/lady and tenant is denied, no order for deposit of arrears of rent could have been passed by the learned Rent Controller under section 17(6) of the Cantonments Rent Restriction Act, 1963 and only tentative order could have been passed under section 17(8) of the Cantonments Rent Restriction Act, 1963 and that's too after conducting inquiry for determining the rent. It is further contended that the learned Rent Controller was not justified in ordering the deposit of arrears of rent on the sole statement of landlady. It is also stated that the learned Rent Controller also fell in error while passing an order with regard to striking off the defence of the appellant under section 17(9) of the supra Ordinance. It is further stated that the learned Rent Controller failed to appreciate the material fact that the respondent/ejectment petitioner had earlier filed a suit, which was later on withdrawn and when the suit was withdrawn there was no occasion of default on the part of the appellant. Learned counsel went on arguing that the amount has not been determined on the basis of material available on record and impugned order dated 7-2-2009 is liable to be dismissed. To support this contention learned counsel has relied upon PLD 1966 Kar.
470. It has been further argued by learned counsel for the appellant that the order is not only harsh but also totally against the material available on record and as such keeping in view the dictum of law laid down in 1981 CLC 1251, the same deserves its dismissal.
4. As against above learned counsel for the respondent/ejectment petitioner has vehemently opposed this appeal. It is contended that material facts have been concealed in the instant appeal and under the umbrella of a concocted/fabricated story, the appellant not only succeeded to get issued pre-admission notice but also got suspended the operation of the impugned orders. It is stated that the appellant was rented out only lower portion of the house in question; however, he illegally, unlawfully unlocked the upper portion and occupied the same through his brother. It is also stated that the case of the appellant is mere concealment of facts; whereas as a matter of fact, through order dated 2-7-2009, the appellant was directed to deposit amount of arrears of rent and on 16-3-2009, counsel for the appellant/ respondent in categorical terms had stated before the Court that his client had deposited the amount of arrears i.e, Rs,5,58,000 in accordance with section 17(8) of the Cantonments Rent Restriction Act, 1963 in light of order dated 7-2-2009. It is further stated that the learned trial Court afforded opportunity to the appellant time and again to produce the receipts of deposit of amount of arrears, however, he failed to comply with the order and after order dated 11-4-2009 the instant B appeal cannot sustain as the same is hit by the principle of estoppel. It has been submitted that only four receipts have been deposited in the Court, which even otherwise is not competent in the matter as the area comes within the jurisdiction of Cantonment and the receipts have been deposited with the learned Rent Controller, Lahore and there is also no proof that the amount of the receipts is lying with the Court or not. In the end learned counsel has urged that, as the appellant has not approached this Court with clean hands as he has concealed the material facts and also made misrepresentation, therefore, the instant appeal deserves its dismissal.
5. Arguments advanced pro and contra have been given anxious consideration. I have gone also through the record of the case in detail with the able assistance of learned counsel for both sides.
6. Admittedly, the appellant is residing in the house of the respondent/ ejectment petitioner and in the presence of sale-deed in favour of the respondent; the appellant cannot deny the relationship of C landlady and tenant. It is also an admitted fact -that the appellant remained making payment of monthly rent till February 2006 and then he failed to make the payment of rent. Hence, in these circumstances, the ejectment petitioner/ respondent was very much within her right to file ejectment petition. I am afraid that how the appellant on one hand is admitting to make the payment of monthly rent in the Court, however, on the other hand is challenging the arrears of rent.
Moreover, the appellant is also estopped to agitate the order dated 7-2-2009 when he had made the statement before the learned trial Court through is counsel that the appellant had deposited Rs,5,58,000 as arrears of rent and he was also afforded opportunities to produce the receipts through which the appellant had deposited the amount of arrears. This fact when put in juxtaposition with the grounds of the instant appeal, attracts the principle of estoppel to the case of the appellant. Furthermore, in the presence of these material facts, the order dated 25-4-2009, striking off the right of defence of the appellant was rightly passed and no exception can be made to the same.
7. It would not be out of place to mention here that the case law cited by learned counsel for the appellant is not applicable to be peculiar facts of the instant case, as the appellant has no case on merits.
'Moreover, learned counsel for the appellant has failed to point out any misreading or non-reading of material/evidence available on record by the learned trial Court. I don't find that the orders dated 7-2-2009 and 25-4-2009 have been passed illegally or without jurisdiction. Learned counsel for the appellant has also not been able to persuade me that how well reasoned orders of the learned trial Court can be interfered with.
8. In sequel to above, the instant appeal is misconceived and the same is hereby dismissed.