' The defence of the appellant has been struck off in Rent Case No, 2314 of 1977 by the Rent Controller for non-compliance of the tentative rent order dated 2nd January, 1978.
2. The appellant was directed by the Rent Controller on 21st November, 1978 to deposit in Court a sum of Rs, 11,320 less the amount deposited in Mist. Rent Case No, 2245/1977 within four months from the date of order as arrears of rent upto October,. 1978 and was further directed to deposit monthly rent in Court regularly @ Rs, 265 p. m. From November, 1978 onward before 15th of each month. The appellant made the 1St deposit of Rs, 2,000 on 12th December, 1978 in Court. A second deposit of Rs, 4,000 was made on 15th April, 1979 and the 3rd deposit of Rs, 3,675 was made on 2nd July, 1979. The amount of arrears after deducting the sum deposited in Misc. Rent Case No, 2245/ 1977, it is admitted, comes to Rs, 7,080 which could be deposited in court upto 19th March, 1979. The current rent from November, 1978 onward was to be deposited before 15th of each month following the current mouth. The 1st deposit of Rs, 2,00J made by the appellant on 12th December, 1978 if considered to be a deposit towards arrears of rent then before 20th March, 1979 the appellant should have deposited a further sum of Rs, 5,080 towards arrears of rent besides making deposit of current rent for November and December, 1978 and January and February, 1979 before 15th December, 1979, 15th January, 1979, 15th February, 1979 and 15th March, 1979 respectively. If the sum of Rs, 2,000 deposited on 12th December, 1973 is considered as deposit towards current rent then on 19th March, 1978 when the default took place in respect of arrears, the appellant had deposited current rent from November, 1978 to February, 1979 and a sum of Rs, 940 was in excess which could be considered as deposit towards arrears of rent which would mean that default was committed in respect of deposit of arrears of rent amounting to Rs, 6,140. It will, therefore, appear that from whatever angle the case is examined the default was there on the part of appellant in compliance with the order of Rent Controller dated 21st November, 1978. The appellant. Prayed before the Controller for condonation of default in deposit of rent in Court on the grounds
(i) that the appellant was ill and confined to bed from 15th March, 1979.
(ii) That there was no adult male member in the family of appellant who could .Contact the advocate and (iii) that the appellant bona fidely believed that arrears could be deposited before 20th April, 1979. The Rent Controller did not believe the evidence of the appellant produced in support of the above grounds and struck off the defence of the appellant. The learned counsel for the appellant has not challenged the findings of Rent Controller on above grounds but has assailed the order on following grounds :-
(i) That the order of Rent Controller, directing the appellant to deposit arrears of rent in Court with effect from 1st February, 1976 was a bad order as under the Settlement dated 16th March, 1975 when accounts were settled, rent upto the month of February, 1976 was included in the sum of Rs, 2.575 which was worked out as arrears of rent.
(ii)That arrears of rent as per settlement dated 16th March, 1975 was worked out on the basis of arrears of rent for 27 months whereas the appellant was not liable to pay arrears outstanding prior to the death of 'her husband which took place on 18th February, 1974.
(iii) That the respondent had taken security deposit of Rs, 1,000 from the appellant at the commencement of tenancy, which was valid for a period of 11 months renewable for a further period of 11 months, and, therefore, the appellant was entitled to the adjustment of the said amount towards arrears of rent.
(iv) That on 16th March, 1976 the account between the parties relating to arrears of rent upto February, 1975 was settled mutually and, therefore, the Rent Controller could not legally direct the appellant to deposit the amount mentioned in the said settlement as the appellant could not be held to be a defaulter in payment of rent for non-payment of the amount mentioned in the settlement dated 16th March, 1976.
3. In order to dispose of the above contentions it is necessary to tate here some of the facts which are admitted by the parties before me.
' The premises was originally let out to the husband of the appellant by the respondent under a written tenancy agreement dated 9th February, 1969, which was valid for 11 months from 15th February, 1969 and was renewable at the option of lessor for a further period of 11 months. A sum of Rs, 1,000 was received by the respondent from the deceased husband of appellant at the time of execution of tenancy agreement which was not refunded after expiry of the period of lease. On 16th March, 1975 a settlement of account was made between the appellant and respondent and after taking into account rent upto February, 1976 a sum of Rs, 2,575 was found due and payable by the appellant to respondent as arrears of rent. In this background of facts I will now deal with the contentions of the appellant raised before me.
4. The 1st contention of the appellant is that the order of Rent Controller dated 21st November, 1978 is a bad order as by this order the Rent Controller directed the appellant to deposit arrears of rent from February, 1975 whereas rent for February, 1975 was already included in the sum of Rs, 2,575 which was worked out as arrears under the settlement dated 16th March, 1975, and, therefore, for non-compliance of such an order the appellant's defence in the case .Could not be struck of. The copy of the settlement dated 16th March, 1975 which is filed along; with this appeal do show that while calculating the arrears of rent. The parties had taken into account the rent for the month of February, 1976 in the calculation. The Rent Controller, however, while passing the tentative rent order again included the rent for the month of February, 1976 in the arrears which was not justified but for this reason alone the tentative rent order could not be held to be void or without jurisdiction so that its non compliance could be ignored. The order was tentative in its very nature and was subject to such final order which the Controller would pass at the end of proceedings. Therefore if one month's rent was wrongly includeu in the arrears the appellant could claim benefit of that and if default was committed any time in deposit of one month's rent the same could be adjusted towards the rent of February, 1976 wrongly included in the arrears. In my humble view this error in the order of Rent Controller was not sufficient to hold it as a void or invalid order and, therefore, the appellant was liable for the penal consequences provided in the law for such default.
5. The next contention of the learned counsel is that the arrears under the settlement dated 16th March, 197 5 were calculated on the basis of 27 months arrears whereas the appellant was not liable to pay rent prior to 18th February, 1974 on which date the husband of appellant died. The contention of the appellant is without any force. The appellant after the death of her husband entered into a settlement with the respondent and paid him a sum of Rs, 3,000 towards arrears leaving behind a balance of Rs, 2,575 which she undertook to pay. This balance of Rs, 2,575 if calculated at the agreed monthly rent @ Rs, 265 was equivalent to about 91 months' rent which admittedly related to the period after 18th February.
1974. The learned counsel for the appellant was unable to point out any illegality in the settlement dated 16th March, 1975 which rendered it un-enforceable.
6. In so far the contention of the appellant regarding adjustment of the deposit of Rs, 1,000 taken by the respondent from the husband of Or, appellant at the commencement of tenancy is concerned, it is conceded by the learned counsel for the respondent in view of the decision in the case of Muhammad Tusuf v. Abdul!Ah (1) the appellant was entitled to claim adjustment of Rs, 1,000 towards arrears of rent. However, adjustment of this amount will not affect materially the result of this appeal.
7. The last contention of the learned counsel for the appellant is that under the settlement dated 16th March, 1975 the arrears of rent upto February, 1976 were calculated at Rs, 2,575 and this amount could not be ordered to be deposited by the Rent Controller in Court under section 13 (6) of the Ordinance VI of 1959 as in the event of non-payment of this amount the only remedy available to respondent was to seek remedy for its recovery through civil Court. I find it difficult to assimilate this argument of learned counsel. In the settlement dated 16th March, 1976, the appellant admitted that arrears of rent upto February, 1976 outstanding against her comes to Rs, 2,575. I am unable to understand why the Controller was not competent to make an order for deposit of this admitted arrears of rent in proceedings under section 13 (2) (1) of the. Ordinance. Subsection (6) of section 13 of the Ordinance empowered the Controller to direct a tenant to deposit all the arrears due against him as well as the current monthly rent during the pendency of the rent case. The arrears of rent directed by the Rent Controller to be deposited in Court, it is admitted, was not beyond the period of 3 years prior to the institution of the rent case. The fact that the arrears of rent were worked out as a, result of mutual settlement between the landlord and tenant is not sufficient to take away the jurisdiction of Rent Controller to direct deposit of such arrears in proceedings under section 13 (2)
(i) of the Ordinance.
8. The learned counsel for the appellant very vehemently argued that for non-compliance of an illegal order passed by the Controller under section 13 (6) of the Ordinance, the defence of the tenant could not be struck of. In support of his contention the learned counsel referred to the case of Ahsan All v. Jaffar All (2), Khair Muhammad Nizamani v. Abdul Quddus (3), Abdul Qayyum v.
Muhammad Ishaq (4), lIkramuddin v. Syed Mahboob All (5) and Moinul Haq G. Shaikh v. Zulekha (6). There can be no cavil with the legal proposition cnovassed by the learned counsel before me that the defence of a tenant cannot be struck of for non-compliance of an illegal order of Rent Controller passed under section 13 (6) of the Ordinance. However, it is not each and every defect in the order of Controller which will render it as illegal. In the case of Ahsan Ali the order of Rent Controller was held to be illegal as instead of ordering deposit of rent in court as contemplated by law the Rent Controller had ordered the tenant to pay the same to landlord. In Khair Muhammod Nizamani's care the Court found that the Rent Controller had ordered deposit of rent before 20th of each month instead of 5th of each month as required by the statute. Similarly in Abdul Qayyum's case the Court held the order of deposit made by the Rent Controller under section 13 (6) of the Ordinance was without jurisdiction as no notice under section 30 of the D. P. (Comp. & Rehb) Act, 1958 was served on the tenant before institution of rent proceedings. In the ease of Ikramuddin it was held by the Court that it is always open
(1) PLD 1980 SC 298 (2) PLD 1964 Kar. 418
(3) PLD 1965 Kar. 367 (4) PLD 1967 Lab. 1025
(5) PLD 1968 Kar. 145 (6) 15079 CLC 658 ' to the tenant to show that the order for deposit of rent passed by the Rent Controller was factually incorrect. In that case it was contended by the tenant that the rent upto November, 1972 was already paid but the tenant was not allowed any opportunity to lead evidence to show payment of rent and, therefore, the learned Single Judge, remanded the . Case back to Rent Controller after setting aside the order of striking of the defence of tenant. In the last cited case of Moinul Hari, the order for deposit of rent was held to be invalid as the Rent Controller had ordered for deposit of rent which was time barred. It will thus be seen that in order to make an order of the Rent Controller invalid or illegal the defect in the order must be one which goes to the very jurisdiction of the Rent Controller to pass such an order. In the case before me the contention of the learned counsel is that because of inclusion of the rent of February, 1976 which was already included in the arrears calculated under the settlement dated 16th March, 1975, the order of the Controller became a void order. In my humble view, as stated earlier, this defect in the order of rent controller was not such which could render the order of Rent Controller as void and illegal. The tenant was at best entitled to the benefit of adjustment of one month's rent in case of default.
9. As a result of above discussion I find no ground to interfere with the orders of the Courts below and accordingly dismiss this appeal but in the circumstances of the case leave the parties to bear their own coats. The appellant is allowed four months time to vacate the premises.