This second appeal has arisen out of an application filed by the appellant on 24th May, 1978, under the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, against the respondent Kb. Muhammad Tariq, for his eviction from a house, inter alia, on the ground that he had not paid rent since July, 1976. On 19th September, 1978, the Rent Controller, before whom the application was pending, made an order, under subsection (6) of section 13 of the Ordinance, directing the respondent to deposit the arrears of rent from July, 1976, to October, 1978, at the rate of Rs. 150, per mensem, till 20th October, 1978, as also the future rent for each month, at the above rate, before the l5th day of the next month. The respondent deposited arrears of rent not in lump sum but with reference to the months falling within the period named by the learned Rent Controller. While so doing, he omitted to make deposit for the month of July, 1976. It was, therefore, held by the learned Rent Controller that he had committed default in regard to the deposit of the arrears of rent and, vide order, order dated the 25th October, 1978, struck off his defence and directed him to vacate the house. .This order was challenged by the respondent by means of an appeal which was heard by an Additional District Judge. The view taken by the learned Additional District Judge was that the order of the learned Rent Controller in regard to the deposit of rent for the month of October, 1978, as arrears of rent was legally defective and, therefore, the respondent was not obliged to deposit rent for that month. As rent for October, 1978, was deposited on 18th October, 1978, before the date fixed for the deposit of arrears of rent, namely, 20th October, 1978, the learned Additional District Judge allowed adjustment of the said rent against the rent payable for July, 1976, and held that there was no default on the part of the respondent. Resultantly, the learned Additional District Judge accepted the appeal, set aside the order of the learned Rent Controller and remanded the case to him for further proceedings. Feeling aggrieved by the order of the learned appellate authority, the landlord has come up in second appeal to this Court.
2. Learned counsel for the appellant submitted that the respondent bad deposited the arrears of rent for each month separately and since he did not deposit rent for the month of July, 1976, in time, which was required to be deposited as arrears of rent, he could not escape the consequences of his default. He relied on section 59 of the Contract Act, 1872, to contend that since the respondent had deposited rent for the month of October, 1978,. By specifying in the relevant challan that it was rent for that month, it could not be appropriated towards the rent payable for the month of July, 1976.
3. On the other hand, it was maintained by the learned counsel for the respondent that rent for the month of October, 1978, had not fallen due when the learned Rent Controller had directed its deposit as arrears of rent and, therefore, his entire order relating to the deposit of rent was illegal.
As a result, the argument proceeds, the respondent could not be penalised for not complying with that order. He cited Khair Muhammad Nizamani v. Abdul Quddus PLD 1965 Kar. 367, and Moinul- Haque G. Shaikh v. Mst. Zulekha and 4 others 1979 CLC 650, to support his plea. It was further submitted by the learned counsel that even if the entire order was not struck down, it will have to be ignored in so far as it related to the deposit of rent for October, 1978, as arrears of rent. He added that since the respondent had deposited rent for the month of October 1978, as arrears of rent on 18th October, 1978, that is before the date fixed for deposit of arrears of rent, namely, 20th October, 1978. Rent for October, 1978, could be adjusted against rent payable for July, 1976, as arrears of rent and thus there would be no default on the part of the respondent. Such an adjustment, according to him, was possible in view of the law laid down in E. A. Evans v. Muhammad Ashraf (PLD1964SC536), Barkat A.I v. Messrs Pakistan Sanitary and Drainage Works (1974SCMR75) and N. M.
Najmi v. Jooma and 6 others (1980 CLC 629). As regards the provisions of section 59 of the Contract Act, it was urged by the learned counsel for the respondent that the cases under the Ordinance are to be decided in accordance with the provisions of the Ordinance only and, therefore, reference to any other law was not called for. For this proposition reliance was placed by him on Major Feroze Din Khan and others v. Sh. Muhammad Amin (PLD 1967 Lah. 966).
4. While replying to the arguments advanced by the learned counsel for the respondent it was submitted by the learned counsel for the appellant that the facts of the cases cited by the learned counsel for the appellant were different from those of the case in hand. He also invited my attention to Allah Bakhsh and another v. Muhammad All Shah and 10 others (1979 CLC 209), to maintain that the adjustment sought by the respondent could not be allowed. As for the contention of the learned counsel for the respondent that the order of the learned Rent Controller regarding deposit of rent was legally defective, learned counsel for the appellant argued that if there was any defect in his order it was only in respect of the month of October, 1978, and since there was no defect so far as the rent for the month of July, 1976, was concerned, the respondent must suffer the consequences of late deposit of rent for the month of July. His reasoning was that if an order made under subsection (6) of section 13 of the said Ordinance is defective in certain respect, it would not make the entire order illegal and inoperative. He cited Kewalram Dayaram Shahan! v. Nawab A.I (PLD 1978 Kar. 79), to support his view.
5. As for the applicability of section 59 of the Contract Act to the present case, it will be observed from the provisions of subsection (1) of sec--petition 13 of the Ordinance that the cases under the Ordinance have to be decided by a Rent Controller in accordance with special law embodied in the Ordinance and, therefore, it is not necessary for him to follow the general provisions of law contained in other enactments. Subsection (1) reads thus:-- "(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Ordinance, or, otherwise, and whether before or after the termination of the tenancy, except in accordance with provisions of the section."
By using the word "otherwise" and "except in accordance with provisions of the section" the Legislature wanted to emphasize that no law other than the Ordinance shall govern proceedings under the Ordinance. A perusal of section 16 of the Ordinance would show that where the Legislature had decided to make certain provisions of some other laws, namely, the Code of Civil Procedure and the Code of Criminal Procedure applicable to the cases under the Ordinance it took care to make an express provision in the matter; in the shape of section 16 of the Ordinance, but as no such provision was enacted for extending the application of section 59 of the Contract Act to cases under the Ordinance, it would follow that the Legislature did not intend to apply section 59 of the said Act to the rent .Cases. The appellant cannot, therefore, press into service the provisions of section 59 of the Contract Act for the purpose of the-instant case. Similar view was expressed in Ghulam Muhammad Khan Lundkhor v. Safdar A.I (1980 CLC 221), Major Feroze Din Khan and others v. Sh. Muhammad Amin, Abdul Khaliq Qureshf v. Saeed Hassan Shah and 5 other., (1979 CLC 118 ) and Abdul Rashid v. Muhammad Akhtar and another (PLD 1967 SC 530), while dealing with the question of applicability of the Transfer of Property Act, 1882, to the cases under the Ordinance.
6. This brings me to the question whether the order of the learned Rent Controller relating to the deposit of rent was legally defective; and if so, to what extent. As indicated earlier, the learned Rent Controller had directed the respondent on 19th September, 1978, to deposit rent for the month of October, 197,x, as arrears of rent by 20th October, 1978. This he could not direct because rent for the month of October, 1978, had not fallen due by the time of the making of the said order. He could, of course, direct the respondent to deposit the same as future rent before the 15th day of November, 1978, in terms of the provisions of subsection (6) of section 13 of the Ordinance. It is, therefore, clear chat the order of the learned Rent Controller for the deposit of rent for the month of October, 1978, as arrears of rent was not in conformity with the said provisions of the Ordinance.
7. What is now to be seen is whether the aforesaid defect will invalidate the entire order of the Rent Controller in regard to the deposit of rent. In the case of Khair Muhammad Nazamani, cited by the learned counsel for the respondent, the Rent Controller had directed the tenant to deposit future monthly rent before the 20th day of each month as also the arrears of rent. The tenant did not deposit any rent. The order of the Rent Controller regarding deposit of future rent was found to be defective inasmuch as according to subsection (6) of section 13 of the Ordinance he was obliged to direct the deposit of future rent before the 5th day of each month. No error was, however, noted in the order relating to deposit of the arrears of rent but despite that it was held by a learned Single Judge of the erstwhile High Court of West Pakistan that defect in the order in regard to the deposit of future rent did "taint the whole order". In the case of Moinul Haq G. Shaikh, which was also relied upon by the learned counsel for the respondent, the Rent Controller had ordered the tenant to deposit time-barred rent as arrears of rent besides requiring him to deposit future rent. The tenant did not deposit any rent whatsoever. It was argued on behalf of the landlord that even if the order of the Rent Controller was defective in so far as it related to the deposit of time barred rent, it was all right to the extent of the deposit of future rent and since no future rent had been deposited by the tenant, his defence was liable to be struck off. This argument did not find favour with the learned Single Judge of the High Court of Sind, who decided the cited case, as his Lordship was of the view that it was not open to the Court to bifurcate the order of the Rent Controller which must either fail or stand depending upon its strict compliance with the said provisions of law, that is, subsection (6) of sec--petition 13 of the Ordinance. In the case of Kewalram -Dayaram Shahani cited by the learned counsel for the appellant, !He Rent Controller had directed the tenant to deposit time barred rent, as arrears of rent, as also the future rent.
The tenant did not deposit any amount towards the arrears of rent or the future rent. Relying on Sh.
Muhammad Rafiq v. Mian Umar Din alias M. U. Deen PLD 1973 Note 113 at p. 172, it was held by another learned Single Judge of the Sind High Court that the two provisions about the deposit of rent due and future rent are not cumulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. It was observed by his Lordship that the tenant could not be required to deposit the arrears of rent beyond three years prior to the making of the ejectment application but as he had not complied with the order relating to the deposit of future rent his defence was liable to be struck off. The view taken in the case of Kewalram Dayaram Shahani is supported by the following observations of their Lordships of the Supreme Court in case of Ashfaq-ur-Rehman.Khan v. Ch. Muhammad Afzal and another PLD 1971 SC 766: "By the impugned order, the Rent Controller directed payment of rent for 3 years prior to the filing of the ejectment applications and the rent accumulated during the pendency of those applications.
The appellants do not plead limitation as regards arrear rent for the said 3 years, but they contend that the rent falling due three years before the Rent Controller's order of the 25th February, 1969, and after the filing of the ejectment applications has become time-barred. ' This plea is not available to them in the face of their own admission that they have been depositing rent in terms of the first order of the Rent Controller which as already stated, is still operative. If, in the meantime, the appellants have defaulted in depositing monthly rent pursuant to the first order of the Rent Controller, then, they are at fault for violating that order and, for that reason, they are all the more disentitled to plead the bar of limitation. Thus, the point on which leave was obtained by the appellants is of no substance."
I, therefore, with respect, follow the view taken in the case of Kewalram Dayaram Shahani and hold that the fact that in the instant case the Rent Controller had erred in directing the respondent to deposit rent for the month of October, 1978, as arrears of rent would not invalidate his order in other respects, especially in so far as it required the respondent to deposit arrears of rent for the period for which the arrears had fallen due by the date on which direction for the deposit thereof was made.
8. The next question to be examined is whether the respondent had failed to comply with the direction of the learned Rent Controller in regard to the deposit of the arrears of rent. In this connection the authorities cited at the bar are the cases of E. A. Evans, Barkat A.I, N. M. Najmi and Allah Bakhsh and another. All these cases are distinguishable on facts. Except the case of E. A.
Evans, all -the aforementioned precedent cases related to controversy regarding the adjustment of time-barred rent deposited as arrears of refit against the future rent. As against this, in the present case no time barred rent was ordered to be deposited and, therefore, the question of its adjustment does not arise. On the other hand, in the instant case the issue to be determined is that if certain amount of rent is deposited before its having fallen due, can it be adjusted against the arrears of rent, which are required to be deposited. In E. A. Evans' case also the question was not in regard to the adjustment of the rent deposited before its having fallen due against the arrears of rent but of the adjustment of rent, deposited at a rate higher than the one at which it was payable against the future rent which was yet to become due. Therefore, the case in hand will have to be decided on its own facts.
9. In the case before me, the default is alleged to have been committed not in regard to the future rent but in respect of the arrears of rent. The learned Rent Controller had directed the respondent on 19th September, 1978, to deposit arrears of rent for the period from July, 1976 to October, 1978, by 20th October, 1978. He did not name the amount of arrears nor did he direct that the arrears of rent for each month will be deposited separately. Looking at the period specified by him, the respondent was required to deposit arrears of rent for 28 months. The total amount of arrears of rent at the rate of Rs. 150, for the said period comes to Rs. 42,00. It included rent for the month of October, 1978, which, as held earlier, could not be ordered to be deposited as arrears of rent. Thus, his direction in regard to the deposit of arrears of rent was valid and binding only to the extent of the period of 27 months, and it is a fact that by 20th October, 1978, the respondent had deposited rent for 27 months (including rent for October, 1978, deposited on 18th October, 1978). Thus, the total amount of arrears of rent which was legally recoverable by 20th October, 1978, was actually deposited by the respondent before the stipulated date. The fact that the respondent deposited the arrears of rent with reference to each month and that there was no deposit for July, 1976, although rent for October, 1978, had been deposited will not make any material difference because, as stated above, the Rent Controller, did not want the arrears to be deposited for each month separately. He was concerned with the deposit of total amount of arrears which was legally recoverable by the time when the deposit was ordered and that amount was, in fact, deposited by the respondent in the aforesaid manner before the stipulated date, that is, 20th October, 1978: In this view of the matter, there was no default on the part of the respondent in regard to the deposit of arrears of rent for which the learned Rant Controller could order his ejectment on 25th October, 1978, by striking off his defence.
10. As for the question regarding deposit of rent for October, 1978, as future rent, the said question does not arise for determination because according to subsection (6) of section 13 of the Ordinance, rent for October, 1978, as future rent was required to be deposited by the respondent before 15th November, 1978, but it was much before the said date that on 25th October, 1978, his defence was struck off due to default with respect to the arrears of rent.
11. In result, I see nothing wrong with the order of the learned Additional District Judge and dismiss this appeal with no order as to costs.