' SYED KAZIM RAZA SHAMSI, J.--- By filing an ejectment petition under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959 the appellant prayed for the eviction of the tenant Sohail Rafique on two-fold grounds, one for default in the payment of rent and the other bona fide personal need.
The rate of rent alleged in the petition was Rs,46,948 per month. Conversely, the tenant alleged that the rate of rent was Rs,17,716 and he also denied the default in the payment of rent and bona fide personal need of the landlady to have the property vacated. The result of this litigation was the order of ejectment, which was passed by Mr. Muhammad Moeen Khokhar, learned Rent Controller, Lahore vide judgment dated 26-1-2009. It was held that the tenant was not the defaulter in the payment of rent. However, the petition succeeded on the ground of personal need.
3. The landlady Mst. Zahida Azam as well as the tenant Sohail Rafique assailed the said order before the First Appellate Court. The stance of the landlady was that the Court had passed an order under section 13(6) of the Ordinance ibid assessing the tentative rent to be deposited but it did not determine the final rate of rent as well as the arrears accrued in her favour. On the other hand, the tenant's appeal was against his ejectment from the rented premises in which he alleged that the Rent Controller had wrongly determined the bona fide personal need of the landlady.
Madam Bushra Zaman, learned Addl. District Judge, Lahore dismissed both appeals vide her judgment dated 16-1-2010.
3. The landlady being dissatisfied with such findings of the Appellate Court has preferred instant second rent appeal. There was another development in this matter, which had arisen when the tenant filed an application before the learned Rent Controller for withdrawal of the excess rent deposited by him in favour of the landlady. The application was contested by the landlady and the proceedings were terminated in affirmative in favour of the tenant recorded in order dated 6-1-2011 passed by Raja Jehanzaib Akhtar, learned Special Judge (Rent), Lahore. It was the ground for acceptance of tenant's application that this Court while deciding SAO No,55 of 2010 did not disturb the rate of rent. The landlady feeling aggrieved by the said order of the learned Rent Controller has challenged the same in the connected Writ Petition No,998 of 2011. There is commonality of the challenge of the orders of the Courts below, as such this Court intends to decide Second Rent Appeal No,87 of 2010 with Writ Petition No,998 of 2011.
4. It is contended by the learned counsel for the appellant that a Rent Controller was under bounded duty to determine finally the rate of rent, which it had fixed during the trial proceeding while passing an order under section 13(6) of the Ordinance ibid without which determination order of grant of withdrawal of excess rent deposited by the respondent could not be passed.
5. Learned counsel has adverted the attention of this Court to his application seeking withdrawal of excess rent appearing at page 31 (Annex-C) of the writ petition and submitted that according to break-up given in para 7 of the application an excess amount of Rs,543,240 stood at his credit, as such the order passed by the learned Rent Controller was in accordance with law.
6. This Court does not find itself in agreement with the contention of the learned counsel for the respondent for the reason that the break-up given by the respondent in his application is disputed one and is to be determined by the learned Rent Controller after recording the evidence. For this purpose a reference is to be made to the original pleadings of the parties i.e. Ejectment petition and the reply of the respondent. In the ejectment petition the petitioner had claimed the rate of rent as Rs,46,948 per month whereas the tenant had termed it as Rs,17,716 per month. The learned Rent Controller while keeping in view both rates of rent had determined the tentative rent of Rs,30,000 per month, which was to be deposited by the respondent in the Court. This observation is duly supported by the break-up given by the respondent in his application filed for the withdrawal of the excess rent. It is the duty of the learned Rent Controller to determine the arrears of rent even after the decision of the ejectment petition. It does not become functus officio after the disposal of the ejectment petition . In this connection guidance can be taken from the judgment of apex Court reported as 1974 SCM R 504.
4. The crux of the whole discussion is that the learned Rent Controller while granting the withdrawal of the excess rent did not hold any inquiry nor proceed to determine the arrears of rent, as such the order dated 6-1-2011 is of no legal efficacy. Similarly, the learned Addl. District Judge while dismissing the appeal of the landlady did not take into consideration that the rate of rent was not finally decided by the learned Rent Controller, as such the order dated 16-1-2010 needs modification to this extent.
5. Accordingly, the SAO No,87 of 2010 is partly accepted and the order of the learned Addl. District Judge is modified to the extent that the learned Rent Controller shall determine the arrears of rent after holding proper inquiry into the matter. Similarly, the order dated 6-1-2011, subject-matter of writ petition, is declared as of no legal consequences and is set aside with the direction to the learned Rent Controller to hold an inquiry into the matter and determine the arrears of rent. The costs in the second rent appeal are allowed to the extent of court-fee affixed there on.