' The property situate at 2, Faridkot Road, Lahore commonly known as Khurshid building was taken on lease by the Water and Power Development Authority (hereinafter called 'the petitioner') for one of its offices on a monthly rent of Rs, 1,900. According to the petitioner the lease was executed in favour of Mst. Farrakh Sultana widow of Khurshid Ali and mother of respondent No. 1 on 31-1-1972 on her behalf as well as attorney for other heirs of late Khurshid Ali who was the original owner of the property in question. According to the accepted mode of payment of the monthly rent between the parties, the petitioner was required to deposit the monthly rent by cheque in her account maintained in the United Bank Limited at 26-Temple Road Branch, Lahore. The rent for the month of January, 1979 was deposited in the account of Mst. Farrakh Sultana by cheque No, 75988 on 3-1- 1979 while the rent for the month of February, 1979 was deposited by Cheque No, 40348 on 7-2-1979 in the said Bank. Mst. Farrakh Sultana died on 11-1-1979 and a notice is said to have been issued to the petitioner on behalf of the other heirs of late Khurshid Ali through Mr. A. C. Joshi, Advocate intimating the death of Mst. Farrakh Sultana and advising the petitioner not to make the payment of the monthly rent to any of the heirs unless the matter was decided amongst the heirs. The petitioner acknowledges to have received this notice on 21-2-1979 when the rent for the months of January and February, 1979 had already been deposited in the manner stated above in the account of Mst. Farrakh Sultana deceased. In spite of the fact that there was a specific direction in the legal notice calling upon the petitioner not to make any further payment the petitioner by way of abundant precaution deposited the rent for the month of March, 1979 in the aforesaid account on 7-3-1979.
2. On 17-11-1979 a petition for eviction under section 13 of the Rent Restriction Ordinance was filed by the respondent No. 1 on the ground of default in the payment of monthly rent from November, 1976, to December 1978, January, 1979 to November, 1979, bone fide personal need and damage to the property. The petitioner in its written reply filed on 19-12-1979 contested the application and denied all the grounds for eviction and it was specifically stated that all the rent due had been paid and there was nothing outstanding. On 10-1-1980 the Rent Controller passed an order under subsection
(6) of section 13 of the Rent Restriction Ordinance directing the petitioner to deposit the arrears of rent for 3 months i,e,, from January 1979 to March, 1979 before 21-1-1980 at the rate of Rs, 1,900 and also to deposit the future rent at the same rate before 15th of each month. As the petitioner claimed that the entire rent for the months from January to March, 1979 had already been paid in the manner stated above, an application was made to the trial Court on 24-1-1981 for the recall of the order. The respondent No. 1, however, made an application that since the petitioner had committed default in the non-compliance of the order passed under section 13(6) of the Rent Restriction Ordinance, its defence he struck off. Both these applications were disposed of by the learned Rent Controller vide his order dated 17.2-1980 and the petition filed by the respondent No. 1 was accepted and that of the petitioner was rejected by the same order. The petitioner filed an appeal which was also dismissed on 10-11-1980 by the learned Additional District Judge, Lahore and the petitioner was allowed 3 months' time to vacate the premises.
3. The learned counsel for the petitioner has raised only one contention. It was contended on behalf of the petitioner that before striking off the defence of the petitioner under the later part of subsection (6) of section 13 of the Rent Restriction Ordinance, the learned Rent Controller was bound to allow the petitioner an opportunity to show that there was no default and to determine what was the actual rent due. Reliance in this behalf was placed on Ibrahim v. Muhammad Hussain
(1) and Ikramuddin v. Syed Mahboob All (2). It was, therefore, contended that the very fact on which the exercise of the jurisdiction was dependent had not been determined by the Courts below. The learned counsel for the respondent No. 1 urged that the petitioner was not entitled to be heard unless he had complied with the orders passed under the first part of subsection (6) of section 13 of the Rent Restriction Ordinance. In the alternative it was argued that the petitioner has been given an opportunity to explain his position and it could not substantiate the payment of the rent for the disputed period viz. January, 1979 to March, 1979. The relevant observations of the learned Rent Controller on the basis of which the respondent No. 1 claims that the case of the petitioner has been considered on merits is reproduced below :- "The respondent has now produced three documents of his own which show that the rent for the months of January, 1979 to March, 1979 was deposited in the account of one Mst. Farrakh Sultana.
The said rent bills cannot be considered to be a compliance of the order dated 10-1-1980 because the respondent was under an obligation to deposit the rent for the months of January, 1979 to March, 1979 in the treasury with the permission of the Court in favour of the petitioner i,e, Syed Aftab Ali. The petitioner has not admitted the rent bills now produced by the respondent. The respondent should have deposited the rent in compliance of the order dated 10-1-1980 for the months of January, 1979 to March, 1979 and later on could prove through his evidence that he had paid the rent of the disputed period. At this stage, it is not established that the respondent had actually paid the rent of the period mentioned in the order dated 10-1-1980 to the petitioner before passing of the said order."
' Both the parties agreed that the above observations were made by the learned Rent Controller without affording any opportunity of evidence to the {{FOOT NOTE}}
(1) PLD 1975 SC 457 (2) PLD 1978 Kar. 145 {{FOOT NOTE}} ' petitioner. The Rent Controller, however, observed that since the order had not been complied with and the rent had not been deposited in Court, therefore, the default in the compliance of the order passed under section 13(6) had been established and the defence of the petitioner was liable to be struck off. The petitioner in its memorandum of appeal contended that the amount for the months of January, 1979 to March, 1979 stood deposited as per the agreed mode of the payment between the parties and as such the order passed under the first part of subsection (6) of section 13 of the Rent Restriction Ordinance was wholly unjustified. The learned Additional District Judge observed that in all eventualities the petitioner was required to deposit the arrears of rent as per the orders of the learned Rent Controller and in case of non-compliance the petitioner was not entitled to show that the original order was illegal and reliance was placed on Mushtaq Hussain v. Muhammad Shafi (1).
4. It is an accepted position that the petitioner did not comply with the order passed under the first part of subsection (6) of section 13 on 10-1-1980 and had made an application for the recall of the order on the plea that this amount stood already deposited. The point, therefore, that arises for consideration in this writ petition is whether the petitioner was entitled to show that the amount directed to be paid under the first part of subsection (6) of section 13 was not actually due before striking off the defence under the tater part of the said subsection. The contention of the A petitioner that the amount had been deposited does not mean the deposit in Court but in the account of Mst. Farrakh Sultana. As already noted above Mst. Farrakh Sultana died on 11-1-1979 and admittedly a notice had been issued to the petitioner informing about the death of Mst. Farrakh Sultana which was according to the petitioner received on 22-2-1979. At least the rent for the month of February, 1979 and March, 1979 could not be deposited in her account. The learned Rent Controller was perfectly justified in ordering the deposit of the disputed period i,e, January to March, 1979 in Court tentatively as arrears of rent. The point raised by the petitioner that the amount had been paid was the defence and it could only be examined in case the order had been complied with. The observations of their Lordships of the Supreme Court in Mushtaq Hussain v.
Muhammad Shaft were as such fully attracted to the facts of the present case and are reproduced below :- "The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication."
' As regards the question whether the learned Rent Controller was justified to pass an order of deposit of the disputed rent for the months of January, February and March, 1979 it may be pointed out that the question whether the rent for these months credited in the account of Mst. Farrakh {{FOOT NOTE}}
(1) 1979 SCM R 496 {{FOOT NOTE}} ' Sultana deceased was a valid payment was disputed question to be decided on merits. In any case the payment so made could not be treated to be in compliance of the order passed under section 13(6). It was, therefore, not a case of leading evidence to show that the payment had been made rather the validity of such a payment was in dispute and the matter constituted the defence which could not be examined unless the order passed under section 13(6) had been first complied with. In another judgment reported as Ali Hassan v. Bashir Ahmad etc. (1), it has been observed that the tenant who failed to deposit rent in pursuance of the directions of the Rent Controller, his defence could be struck off without finally determining the rent payable to the landlord. The words appearing "without taking any further proceedings in the case" occurring in subsection (6) of section 13 of the Dalliance were interpreted in the case of B Muhammad Saeed v. Syed Niaz Ali Shah
(2) to means that the Rent Controller had no other alternative but to direct that the tenant shall put the landlord in possession of the disputed property.
6. The learned counsel for the petitioner relied on Ikramuddin v. Syed Mahboob Ali which is not attracted to the facts of the present case. In that case it was the contention of the tenant that it was factually incorrect as given in the order passed under section (6) of section 13 of the Rent Restriction Ordinance that 5 months' rent was due as alleged by the landlord. In the present case the question of the validity of such payment was also a serious question which could not be determined while passing the order under the later part of subsection (6) of section 13. The order passed under the first part of subsection (6) of section 13 in the present case was perfectly valid in view of the controversies arising in the case. It might have been a good case on merits to hold that the petitioner was not a wilful defaulter but so far as the striking off the defence under subsection
(6) of section 13 is concerned the learned Rent Controller had only to see whether the order has been complied with or not and it is only in cases where there is no wilful default that the defence is not struck off. In the present case admittedly, the petitioner did not comply with the order passed under section 13(6) and relied upon the payments for which the whole defence of the petitioner was to be examined on merits. According to my humble c opinion the defence of the petitioner could not be examined in view of the dictum of their Lordships of the Supreme Court quoted above.
This writ petition is dismissed with no order as to costs.
7. Before parting I may point out that since the office of the WAPDA is located in the property in question the respondent No. 1 shall be considerate in allowing reasonable time to the petitioner to vacate the premises as in the exercise of the writ jurisdiction I have no power to grant time to deliver the vacant possession. {{FOOT NOTE}}
(1) 1979 CLC 159 (2) 1972 SCMR 30 {{FOOT NOTE}}