' This is an appeal against the order of the learned Additional District Judge, Rawalpindi, dated 3rd September 1979, by which he accepted the appeal filed against the order of the learned Rent Controller, dated 1st February, 1979. The learned Additional District Judge, ordered the striking of the defence of the appellant.
2. The respondent had filed a petition for eviction of the appellant from House No, R-321, Saidpuri Gate, Rawalpindi which is in occupation of the appellant at a monthly rent of Rs, 100, vide rent note dated 17th September 1973. The petition for eviction proceeded on the ground of default in the payment of monthly rent with effect from 1st March 1974, and several other grounds. The learned Rent Controller passed an order under subsection (6) of section 13 of the Rent Restriction Ordinance on 24th Septembet 1975. The defence of the appellant was struck of by the learned Rent Controller vide his order dated 10th July 1976, the details of which are not necessary for the present appeal. The appellant filed an appeal against the said order which was accepted by the learned Additional District Judge, and the case was remanded vide his order dated 22nd October 1977. An S. A.
0. Filed by the respondent was also dismissed by my learned brother Mr. Justice Habib Ullah which is reported as NLR 1978 (Civil) Lah.
1099.
3. After the remand of the case the respondent made another application for striking of the defence on 25th October 1978. It was alleged that the rent in respect of February 1977, had been deposited on 16th March 1977, instead of before 15th as enjoined by law. This application was dismissed by the learned Rent Controller vide his order dated 1st February 1979. The learned Rent Controller relied upon a judgment of the learned Supreme Court reported as Abdul Ghafoor v.
Ahmad Kunhi (1) for the proposition that an order passed under subsection (6) of section 13 of the Rent Restriction Ordinance terminates on the final determination of the proceedings before the Controller. The relevant observation of their Lordships is quoted below :- "The order contemplated by the first part of section 13(6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made. It is worthy of note that the penalties provided under subsection (6) of section 13 for non- compliance of an order passed thereunder are that if the tenant is the petitioner his application is dismissed and if he is the respondent then his defence is struck off and in either case the landlord is put into possession of the property without taking any further proceedings in the case. Such an order in my view can only be passed by the original Court. In any event such an order does not remain effective after . The final determination of the proceedings before the Controller."
' The learned Rent Controller, therefore, concluded that from 10th July 1976, when the proceedings before the Rent Controller were terminated and final order of ejectment was passed till the date of remand of the case the appellant was under no obligation to comply with the order passed under section 13(6) of the Ordinance. The respondent filed an appeal and the learned Additional District Judge, without adverting to the real point of controversy between the parties reversed the finding.
The argument adopted by the learned Additional District Judge, Rawalpindi, is absolutely against the ratio of the Supreme Court judgment relied upon by the learned Rent Controller. -Even no attempt was made to distinguish the judgment of the Hon'ble Supreme Court. The contention of the learned Additional District Judge, on which the appeal was accepted may be quoted below :- "I am afraid there is no force in the contention of the counsel for the respondent. Admittedly an order under section 13(6) was passed on 24th September 1975, and the respondent was duly bound to comply with this order. There is no doubt that an appeal was filed against order dated 10th July 1976, but it does not mean that the operation of order dated 24th September 1975, ceased to exist after 10th July 1976. Admittedly an appeal is in continuation of the original proceedings and as such it was the duty of the respondent to continue depositing the rent as ordered on 24th September {{FOOT NOTE}}
(1) P D 1969 SC 424 {{FOOT NOTE}} 1975. The non-compliance of this order during the pendency of appeal and even thereafter clearly shows that the respondent has violated the order wilfully."
' As already indicated above the argument of the learned Additional District Judge, does not find support from the judgment of the Supreme Court referred to above and was precisely the argument in D. Lobo v. Sheikh Muhammad Zaki (1) which had been overruled by the august Supreme Court. The Supreme Court judgment was followed in Qamaruz Zaman v. Khair Din (2) and also affirmed in S. Pinlien vs. Mst. Najma Kazmi (3). The learned counsel has also relied on Roshan Din v. S. M. Badar Din (4). The respondent who has argued the case himself has submitted very lengthy argument which are not relevant. He has relied on Ashfaqur Rehman v. Ch. Muhammad Afzal etc. (5) I am in agreement with the learned Rent Controller that this authority does not deal with the point in question.
4. The upshot of the above discussion is that since the order of eviction had been passed against the appellant on 10th July 1976, and the appeal was accepted on 22nd October 1977, the appellant as per the law declared by the august Supreme Court was not bound to comply with the order under section 13(6) on 24th September 1975, and as such the rent for the month of February 1979, was even deposited on 16th March 1977, the defence of the appellant could not be struck off. The order of the learned Additional District Judge, dated 3rd September 1979, is hereby set aside and that of the order of the learned Rent Controller, dated 1st February 1979, is hereby restored. The learned Rent Controller shall now decide the question on merits. However, in view of the fact that the petition had been filed as far back as 24th July 1975, the learned Rent Controller shall expedite the disposal of the main petition. In view of the circumstances of the case there will be no order as to costs. {{FOOT NOTE}}
(1) PLD 1967 Lah. 194 (2) 1980 CLC 2007
(3) PLD 1978 SC 275 (4) PLD 1969 Kar. 546 (5) PLD 1971 SC 766 {{FOOT NOTE}}