Through the instant appeal, under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, the appellant has prayed for setting-aside the orders dated 23.9.2002 and 27.3.2003, passed by the learned Rent Controller, Lahore and the learned Additional District Judge, Lahore, respectively, whereby his application for holding an enquiry to finally determine the rent due from the Tenant/Respondent No. 2, was dismissed.
2. Briefly the facts, giving rise to the instant appeal, are that the appellant filed an ejectment application against the Respondent No. 2 on the ground of default and personal need, wherein an order, under Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, was passed on 2.8.2002, which was not complied with by the Tenant/Respondent No. 2, whereupon his defence was struck off and the ejectment application was accepted. However, the learned Rent Controller, Lahore, vide older dated 23.9.2002, directed the landlord to recover the arrears of rent in accordance with law and in the light of the judgment reported in Khawaja Anwar Hassan v. Naveed Ahmad Chaudhry and 2 others (PLD 2002 Lahore 355). Thereafter, the present appellant filed an application, under 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, for final determination of the amount of rent due from the Tenant/Respondent No. 2 but the same was dismissed by the learned Rent Controller, Lahore on 23.9.2002. The present appellant challenged the aforementioned order of the learned Rent controller, Lahore, dated 23.9.2002, through an appeal, which was also dismissed by the learned Additional District Judge, Lahore, vide order dated 27.3.2003. Hence, the instant appeal.
3. No one appeared on behalf of the Respondent No. 2 despite publication of a notice in the daily "Nawa-i-Waq" and as such, exparte proceedings were ordered against the Respondent No. 2, vide order dated 19.1.2010.
4. It is contended by the learned counsel for the appellant that according to 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, the Rent Controller has the jurisdiction to finally determine the amount of rent due from the tenant and for passing a direction to the tenant to pay the same to the landlord. The learned counsel for the appellant further submitted that the learned Courts below did not consider the aforesaid provision of the Ordinance ibid and as such, the impugned orders are not sustainable. In support of his arguments, the learned counsel for the appellant relied upon the judgments reported in Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate (1974 SCMR 504), Ghulam Rasool v. Said Rasool and 2 others (PLD 1990 Lahore 457) and Zafaryab Ali Khan v. Mst. Afsar Begum (1982 CLC 422). The learned counsel for the appellant argued that the facts of the reported judgment, i.e. "Khawaja Anwar Hassan v. Naveed Ahmad Chaudhary and 2 others (PLD 2002 Lahore 355), relied upon by the learned Rent Controller, Lahore as well as the learned Additional District Judge, Lahore in their impugned orders, were distinguishable from the facts and circumstances of the case in hand.
5. Arguments heard. Record perused.
6. It would be advantageous to reproduce hereunder the 2nd part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959:-- "The. Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
A plain reading of the aforementioned provision of the Ordinance ibid would reveal that a statutory duty is cast upon the Rent Controller to finally determine the amount of rent due from a tenant and until this function is performed, the proceedings before the Rent Controller could not legally conclude. Therefore, the findings of the learned Rent Controller, Lahore as well as the learned Additional District Judge, Lahore to the effect that the landlord may get the rent due determined and recovered through an appropriate proceeding, are against the express provisions of 2nd Part of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. The Rent Controller, after striking off the defence of a tenant on his failure to deposit the arrears of rent and passing an eviction order thereon, did not become functus officio. The Rent Controller was not precluded from finally determining the amount of rent due from a tenant. No doubt, in order to finally determine the rent due, the Rent Controller is bound to issue notices to the parties concerned and record his findings, after providing an opportunity to both the parties of being heard or to lead evidence, if required.
7. In view of above, the impugned orders, dated 23.9.2002 and 27.3.2003, passed by the leaned Rent Controller, Lahore and the learned Additional District Judge, Lahore, respectively, are declared to be illegal and accordingly set-aside. The instant appeal is accepted and the learned Rent Controller, Lahore is directed to finally determine the amount of rent due from the tenant/Respondent No. 2 and direct that the same may be paid to the landlord, subject to adjustment of any amount of rent deposited by the tenant.