SYED SAJJAD HASSAN SHAH, J.- The petitioner Mst. Shagufta Shaheen filed a petition under section 13 of the Rent Restriction Ordinance, 1959 for ejectment of the respondent from the house fully detailed in the petition and also for recovery of Rs,2,04 000 as rent of the said house for two years and ten months from 6-6-2006 to 6-4-2009 at the rate of Rs,6,000 per month and at the same rate till the ejectment of the respondent.
2. The respondent contested the petition by filing replication and admitted the relationship of landlord and tenant. On 23-7-2009 the learned Rent Controller directed the respondent to deposit the rent due from him (respondent) on 3-9-2009 and thereafter to deposit monthly rent before 10th of each month. The respondent failed to deposit the rent till 3-9-2009 as directed by the learned Rent Controller. However, the order dated 23-7-2009 was challenged by filing revision petition which was dismissed by learned District Judge, Bannu on 12-1-2010. After dismissal of the revision petition, respondent No,1 filed another application dated 26-1-2010 before the Rent Controller for setting aside the order dated 23-7-2009 which was contested by the petitioner by filing replication. Similarly, the petitioner had moved an application for striking off the defence of respondent. The application was contested by the respondent by filing replication. After hearing arguments on both the applications, the learned Rent Controller vide order dated 23-2-2010 dismissed the application of the petitioner for striking off the defence of respondent. However, the application of respondent was accepted and the respondent was directed to deposit only the rent from July, 2009 to February, 2010 at the rate of Rs,6,000 instead of total defaulted rent from 6-6- 2006 to 6-4-2009 with further directions for deposit of monthly rent before 10th of each month.
Against the order dated 23-2-2010 the petitioner filed an appeal which was dismissed by learned Additional District Judge HI, Bannu vide order dated 17-4-2010. The petitioner is aggrieved from the orders dated 23-2-2010 and 17-4-2010 and has filed the instant whit petition
3. The learned counsel for the petitioner argued that the learned Rent Controller had no jurisdiction to entertain review application against his order of deposit of rent dated 23-7-2009 as no provision for review has been provided in the Rent Restriction Ordinance, 1959. He further contended that the order was tentative in nature and final order was yet to be passed at the time of decision of the eviction petition, therefore, the petition being incompetent is liable to be dismissed. The respondent has wilfully committed the default in deposit of rent, thus, violated the order of learned Rent Controller. The petitioner/landlord under wrong advice filed an appeal against the said order of review which was unlawfully entertained by the learned appellate Court and thus dismissed the same. The learned counsel placed reliance on the cases titled M.H. Musadiq v. Muhammad Zafar lqbal and another ( 2004 SCM R 1453), Aziz Ahmad Mughal v. Rent Controller and others (2006 CLC 1381 Lahore) and Ch. Ijaz Sarwar v. Nadeem Farooq and another (2004 CLC 1525 Lahore).
4. The learned counsel for respondent No,1 contended that the learned Rent Controller has power to entertain the review petition and to decide the same in accordance with law as the order was passed in absence of the respondent/tenant. He further contended that any judgment or order passed in absence of the party is illegal and can be recalled by the Court passing the same. The learned counsel, in support of his arguments, placed reliance on the cases titled Mr. Shaukat Amjad and others v. Sheikh Ahmad Saeed and others (2010 YLR 3137) and Haji Khudai Nazar and another v. Haji Abdul Bari (1997 SCM R 1986).
5. We have considered the arguments of learned counsel for the parties and carefully perused the record.
6. The controversial questions involved in the instant case are that (i) whether the order passed in terms of section 13(6) of the Rent Restriction Ordinance for the deposit of rent due and future rent can be altered and is amenable to review by the Rent Controller and (ii) in case of non- compliance of order, the defence of tenant is liable to be struck off?
7. To answer the above quoted questions, it is incumbent to closely examine the provision contained in section 13(6) of the Ordinance ibid reproduced as under:--- "(6) In proceeding under this section, on the first date of hearing or as soon as possible after the date 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 15th 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 in possession of the property without taking any further proceedings in the case."
8. The object underlying subsection (6) of section 13 of the Ordinance ibid is of three-fold i,e, (i) it provides a sort of security to the landlord for early decision of the litigation and to save him from further expensive course of instituting a separate suit for recovery of arrears of rent which becomes due from the tenant during the pendency of the eviction petition, (ii) an effective check against the tenant to prolong the ejectment proceedings and (iii) in such cases the direction for payment of the rent has been made on the principle that a person who seeks equity must do equity and come with clean hands and should not render himself as defaulter. Moreso, the legislature has never desired to make the provision of the section a vehicle of oppression against the tenant as it is discernable from the preamble of the Ordinance that it provides to restrict the increase of the rent of certain premises within the limits of urban areas and the eviction of the tenant therefrom.
9. In view of the above, the purpose of deposit of rent in terms of section 13(6) of the Ordinance ibid is abundantly clear that the same provides protection to both landlordand tenant. However, the paramount consideration is to curb the protracted litigation in between the landlord and tenant.
10. In furtherance of such purpose, the intention lying behind the enactment is quite apparent and visible from its plain language that though the tenant is given the right to defend the proceedings of his eviction instituted by the landlord, of course, after compliance with the order of deposit of tentative rent. Simultaneously, in case of his failure, the penalty, mandatory in nature, is provided to be adhered by the Rent Controller without proceeding ahead. Two views were expressed by the superior Courts, one was on the basis of assumption that the provisions of section 13(6) of the Urban Rent Restriction Ordinance are only for the benefit of the landlord, as such, could be waived by him. Another view was that the said provision is not merely for the benefit of landlord but is based on public policy. After canvassing both the views, it was held in a case titled Muhammad Saleh v.. Muhammad Shafi (1982 SCM R 33) that:-- "The Rent Restriction Ordinance has been enacted to regulate relationship between tenant and landlord, with a view to protect the interest of each class or section, and the provision of section 13(6), requires the Rent Controller to direct the tenant to deposit arrears of rent and the future rents as an evidence of good faith on his part and to prevent him from using the proceedings as means of avoiding paying the rents due from him, just as section 22 of the Punjab Pre-emption Act requires the pre-emptor to deposit the 1/5th of the probable value of the land or property, in the Court by way of a guarantee of his bona fides, and to ensure that the suit is not frivolous. Failure to make such deposit renders suit for pre-emption liable to rejection. Similarly, a default in the deposit of rents as ordered by the Rent Controller, renders the tenant's defence liable to be struck off" It transpires from the dictum laid down by their lordships of the Supreme Court in above cited judgment that the provision contained in section 13(6) of the Rent Restriction Ordinance regarding striking off the defence are more stringent than the violation of the provision of the preemption law.
11 Similarly observations were also made in the case titled Aziz Ahmad Mujhal v. Rent Controller and others (2006 CLC 1381):-- "6. Nonetheless the Ordinance in hand was promulgated only to regulate the relationship of landlord and tenant, by providing mechanism for ejectment of tenant and it safeguards rights of both of them. Civil Procedure Code is not applicable to the proceedings before the Rent Controller who in his discretion can adopt procedure of his choice and may apply to proceedings before him, equitable principles of general civil law."
12. The record reveals that the learned Rent Controller directed the respondent on 23-7-2009 to deposit rent due on 3-9-2009 and further monthly rent before 10th of each month vide Order Sheet No,11 which clearly specifies the "presence as before". Preceding Order Sheet No,10 dated 22-7-2009 is as follows:- "Attorney for the petitioner and respondent present. To come up on 23-7-2009 for further proceedings. " The date fixed for deposit was 3-9-2010 but the respondent/tenant had failed to deposit the rent due as per direction of the learned Rent Controller. However, he filed review petition and the petitioner also made application for striking off defence of the respondent. The learned Rent Controller reviewed its order dated 23-7-2009 by modifying the same. The operative part of the order dated 23-7-2009, impugned herein, is reproduced as under:- "Arguments heard. Record perused which suggests that the respondent admitted relationship of landlord and tenant between the parties. However, he refused the default in payment in monthly rent. The present petitioner has annexed copy of tenancy agreement dated 6-6-2006 with the respondent, According to said agreement, Rs,6,000 monthly rent is fixed between the parties. Vide Order Sheet No,11 dated 23-7-2009 the respondent was directed to deposit monthly rent due against him on 3-3-2009. The respondent through application in hand seeks setting aside of said order being one sided. Today opportunity of hearing given to him and available record perused. As the relationship has been admitted and the copy of tenancy agreement is also placed on file which is subject to prove, therefore, the respondent is directed to deposit the monthly rent at the rate of Rs,6,000 per month from July, 2009 to February, 2010 within seven days. He is also directed to deposit the rent on monthly basis before 10th of each month." In the above cited paragraph, the very purpose and intention of tenant is abundantly clear that he wanted to get rid of the penalty provided for default in payment of rent in the garb of passing of ex parte order by the Rent Controller. However, his stance has not been supported by the available record as referred to above that his attorney was marked as present on the preceding date and also on the date of passing of the impugned order of deposit. The same cannot be termed as ex parte order as it was made in presence of his attorney. The judicial proceedings are blessed with the presumption of truth. The Court is bound to believe the judicial record wherein the attorney of the respondent was marked as present, when conducted the proceeding in the case on behalf of tenant-respondent, thus, the order was passed in his presence, therefore, it does not lie in the mouth of respondent to say that the order was passed in his absence. In this context, reference can be made of the case titled Muhammad Kalim Akhtar v. Noor Hussain and 2 others 2003 YLR 1718 wherein it has been held that:-- "Beside the presumption of regularity and correctness attached to the proceedings of learned Rent Controller, suffice it to say that assertion of the appellant stands belied by the record. It is borne out of the order sheet that the learned counsel for the appellant was present when order under section 13(6) of the Rent Restriction Ordinance, 1959 was passed by him. He was again present on 30-9- 1999 as also on 8-10-1999. Application for recalling of order dated 20-9-1999 was made on 15-10- 1999. It was not thus difficult to infer that such a belated move was an afterthought by which time default had already been committed due to non-compliance of order dated 20-9-1999. Thus, feeble attempt was made by the appellant to overcome the consequences of non-compliance of the said order." In the case titled Anjuman Ahle-e-Hadees, Khanewal through Amir of the Anjuman v. Rent Controller/Senior Civil Jude, Khanewal and another (2005 YLR 25) it is also reiterated that:- "The learned Rent Controller had passed order dated 5-1-2004 in the presence of parties according to which respondent No,2 was bound to deposit the amount of future rent before 15th of each month. This order was not complied with by respondent No,2. And he moved an application on 17-2-2004 that he could not deposit the rent for the month of February, 2004........................... ... ....The impugned order dated 6-3-2004 has been passed by the lower Court against the settled principle of law laid down by the superior Courts which is not maintainable and is set aside.
Resultantly, the defence of respondent No,2 is struck off and the petition filed by petitioner against respondent No,2 for ejectment from the shop in his possession is accepted.
13. The other aspect of the case which requires consideration is that as to whether the learned Rent Controller could review its order or not? In this respect, the provision contained in Rent Restriction Ordinance, 1959 does not empower the Rent Controller to review its own order. Section 15 of the Ordinance ibid does provide further remedy of appeal against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due. It further provides that no appeal shall lie from an interlocutory order passed by the Controller. No other remedy is available in the Ordinance ibid.
14. The very purpose of enactment is to ward off the delay causing the early disposal of cases, therefore, the legislature intentionally not provided for remedy of review and the other alike nature against any interim order passed under the above stated law, thus, the order of deposit of rent at an apportionate or tentative rate cannot be reviewed by Controller. However, the exact rate of rent would be determined after the order for deposit at tentative rate has been complied with, the exact rate of rent would be determined by Controller in the ensuing inquiry. However, in this case, the landlord has produced the rent deed executed in between the tenant and his landlord, therefore, no such determination about the rate of rent is required.
15. It is cardinal principle of law that when a statute itself does not provide any remedy, the Court cannot take the shelter of any other enactment in order to undo its own order passed earlier particularly in the Rent cases which is a special law and governed by the procedure prescribed therein. The Rent Controller is not vested with the powers of review as were exercised in the instant case. Guidance is derived from the case of Muzafar v. Muhammad Shafi (PLD 1981 SC 94) wherein it is held that:- "(8) Before proceeding further, it may be pointed out that right of review is a substantive right and is always a creation of the relevant statute on the subject. See Hassan Bakhsh v. Settlement Commissioner Rawalpindi and others (PLD 1970 SC 1) wherein at page 5. It was held that:-- "The right to claim review of any decision of a court of law, like the right to appeal, is a substantive right and not mere a matter of procedure. An appeal, as observed by Bronwell, L.J., in the case of Sandback Charity Trustees v. North Staffordshire Railway Company (1877) 3 Qbd-1- "does not exist in the nature of things:- "a right to appeal from any decision of any Tribunal must be given by express enactment. This is equally true in case of review, because both appeal and review, though they differ in scope, are substantive rights. As such, neither of them is available unless conferred by law." Similar proposition of law enunciated in case Chaudhary Ijaz Sarwar v. Nadeem Farooq (2004 CLC 1525):-- "(4) There is no cavil with the proposition that the right of review is a substantive right and not a matter of procedure and no Court possesses the inherent power to review its decree or order unless such a power is expressly granted by the statute."
In the case of Muhammad Kalim Akhtar (supra), the following observations have been made:-- "There is no doubt whatsoever that the Rent Controller had no such power to review that order and order passed by him under section 13(6) of Rent Restriction Ordinance, 1959 was in force and had to be complied with unless reversed or modified in the appropriate proceedings."
16. In the above referred case-law, it is consistently held that on failure of -tenant to deposit the rent as per direction of the Rent Controller, his defence is liable to be struck of and he has no legal right to proceed with the case.
17. The case-law relied upon by learned counsel for the respondent is distinguishable, hence not applicable to all fours of the instant case.
18. For what has been discussed above, we are constrained to accept the instant writ petition, set aside the impugned orders of the Courts below and remit the case to the learned Rent Controller to decide the application of the petitioner for striking of the defence of tenant in accordance with law.