' MRS. IRSHAD QAISER, J.---Appellant Muhammad Saqib filed present appeal under section 24 of the Cantonments Rent Restriction Act, 1963 against the judgment and order dated 12-6-2013 passed by the Cantonment Rent Controller Abbottabad whereby the application of the respondent Landlord for striking of defence of appellant was accepted and the appellant was directed to handover the possession of the demised premises to the respondent within two months of the order.
2. Brief facts of the case are that the respondent filed eviction application against the appellant/tenant under section 17 of the Cantonments Rent Restriction Act, 1963 on the ground of default of payment of rent, personal need and misuse of property. Along with ejectment petition, the respondent also moved an application for issuance of direction to tenant to deposit arrears of rent as well as future rent in the Court. On appearance, applicant (tenant) contested the application by submitting his written reply.. In his written statement he admitted the relationship of landlord and tenant between the parties and contended that he paid Rs,500000 as security. He also admitted the non-payment of monthly rent however in Para No,3 of his written statement he contended that in lieu of payment of rent he spend huge amount on furnishing and beautification etc., of the demised premises with the consent of landlord and thus he is not rent defaulter. After hearing the arguments, the learned trial Court vide order dated 20-2-2013 directed his reader and one Soliman Baig to visit the spot in order to ascertain the detail of rent and building. The commission, so appointed submitted his report. After doing the needful an order under subsection
(8) of section 17 of the Act was passed on 13-3-2013 directing the appellant/tenant to deposit the arrear of rent from January 2012 till March, 2013 at the rate of Rs,40,000 per month before 5-4-2013 and also further monthly rent before 5th day of each month. But he failed to deposit the rent.
Instead the appellant filed writ petition to challenge the order of Rent Controller which was dismissed in default on 17-4-2013. Although an application for restoration of writ petition was filed and notice was issued to respondent but no status quo order has been passed by this Court in favour of petitioner. Ultimately on 8-5-2013 respondent filed an application for striking off the defence of the appellant on the ground that he failed to deposit arrear of rent before 5-4-2013 and current rent before 5th day of every month. This application was resisted by appellant. After hearing the arguments learned trial Court vide judgment and order dated 12-6-2013 struck off the defence of the applicant and he was directed to handover the possession of disputed shop to the land-Lard within two months. Feeling aggrieved he filed the present appeal and assailed the impugned order on number of grounds.
3. I have heard learned counsel for the parties and perused the available record with their, assistance.
4. The contention of the learned counsel for the petitioner is that there was no wilful default in the deposit of arrears as well as future rent. That the arrear of the rent has not been deposited with the consent of land lord as this rent amount has been used for the improvement and beautification of the suit promises. That at the time of execution of rent agreement an amount of Rs,500000 was given to the landlord as security and in case of default this security could be adjusted from the security deposit of the petitioner. Learned counsel has also taken me through the entire record of the case including the writ petition filed against the order dated 13-3-2013. In support of his above said contention he relied on 2001 CLC 1045, PLD 1996 Karachi 420, 2010 SCMR 771, 2004 SCMR 1070, PLD 1995 SC 609 and 1993 MLD Peshawar 2083.
5. While in rebuttal learned counsel for the respondent has supported the impugned judgment and contended that default in payment of rent was admitted by the tenant/appellant and in this respect the learned trial Court has rightly arrived at finding that default was wilful. That there is nothing on record that he spent the rent amount on the improvement and beautification of the disputed shop with the consent of landlord. That though he deposited security amount but the monthly amount could not be allowed to be adjusted from security amount toward rent of monthly defaulted period as there was nothing in the tenancy agreement that future monthly rent as ordered by the Rent Controller under subsection (8) of section 17 of the Act could be adjusted from the security deposit. Learned counsel for the respondent placed reliance on 2003 SCMR 1580, PLD 1988 SC 190, 1977 SCMR 217, 1991 SCMR 359, 1996 CLC Lahore 1616, 2011 CLC Peshawar 1579.
6. After the perusal of whole record, I do not find any substance and merit in the contention or the learned counsel for the appellant and the judgment noted above cited by him is also not applicable to the facts and circumstances of the case. However; I find merit and force in the submission made by the learned counsel for the respondent.
7. It has been established on record that petitioner being tenant has not complied with the rent controller order in letter and spirit but is defaulter in its payment. As per order dated 13-3-2013 passed by Rent Controller after the initial inquiry, at the request of tenant, and careful perusal of report submitted by commission, he (appellant) was directed to deposit the arrear of rent from January 2012 to March 2013 at the rate of Rs,40000 per month before 5-4-2013 and also to deposit future rent before 5th day of each month. But he failed to comply the mandatory order of the Court.
Moreover, he has not been able to bring on record to show that the default was unavoidable not wilful and beyond his control.
8. It is settled law that the order passed under section 17(8) of the Act is not appealable order and it left to the discretion of the Tribunal (Rent Controller) to pass an order in accordance with facts and circumstances of each case to save the interest of the parties and also for quick disposal of case.
Though the appellant filed writ petition wherein he challenged the order dated 13-3-2013 but that was also dismissed in default and thereafter no status quo order was issued in favour of the applicant. Moreover, the facts and circumstances of the case reveal that the writ petition against an interlocutory order was filed only to enhance the agony of the respondent. From the perusal of whole record it is manifest that the only intention of the appellant was to delay the proceeding and nothing else.
9. The legal position in respect of non-payment of rent amount is very clear. According to subsection (9) of section 17 of the Act, if the tenant fails to deposit the amount of rent before specified date or as the case may be, before 5th day of each month, his defence shall be struck off.
On its bare perusal, it is manifested that the above provisions are mandatory in nature and even one day's delay in making deposit would be default within its meaning and Rent Controller has no power to extent time condoned the same. To further fortify reference can be made to 1995 SCMR 287 in case title Misbah Ullah Khan v. Mst. Memona Takinuddin wherein the august Supreme Court while interpreting the scope of section 17 of the Act has held; "that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking eviction. That non-compliance with the tentative rent order is directly punishable and in consequence the defence of tenant is to be struck off and eviction can be granted". Reference is also made to 1986 SCMR 1705 in case Province of Punjab and others v. Muhammad Jalilur Rehman wherein it is held; "The Rent Controller had no power to ignore the delay in making deposit of rent under Section 13(6) of Ordinance-VI of 59". Reference is also made to 1990 SCMR 557, 1977 SCMR 217,"
10. So far the second contention that monthly rent for the defaulter period could have been adjusted from the security deposit has no merit considering the law laid down by apex Court in Khadim Hussain v. Nazir Ahmed 2003 SCMR 1580, Mrs. Zarina Khawaja v. Agha Mahboob Shah, PLD 1988 SC 190 considering the fact that there was no covenant in the tenancy agreement that in case of default, adjustment of payment of rent could be made from the security deposit. As there was no covenant in the tenancy agreement for such adjustment and no advance rent was deposited with the respondent landlord hence no adjustment could be made toward the rent of defaulted period. Even this plea with regard to the adjustment of rent from the security deposit was not made before Rent Controller. Reference may be made to 1982 SCMR 1120 wherein it is held; "that the points not raised in Court below cannot be permitted in appeal before appellate Court."
11. Appellant at present also failed to prove that he spent the rent amount in the improvement and beautification of the suit premises with the consent of the landlord. It is proved from the record that appellant failed to comply the mandatory order of the trial Court regarding deposit of arrear of rent as well as future rent.
12. It is well settled law that the person who did not obey the order of the Court, has no right to remain present before the Court and contest the matter when the applicant failed to comply with the order of the Rent Controller, therefore, there was every justification within the rent Controller to strike off the defence of the appellant and no exception can be taken to that order of Rent Controller. Reference may be made to 2004 SCMR 1453 wherein it is held "If the tenant failed to deposit the amount of rent before specified date, or as the case may be before 5th of cacti month then under section 17(9) of CRRA 1963, his defence would be struck off. Even one day's delay in making the deposit would be default within meaning of section 17(9) of Act 1963 as the same was mandatory in nature and Rent Controller has no power to extent time."
13. Keeping in view the above facts and circumstances of the case I hold that the order of Rent Controller does not warrant any interference by this Court. Learned counsel for the appellant could not point out any illegality in the impugned order. Thus the present appeal being without any force is hereby dismissed with no order as to cost. Appellant is directed to handover the possession of the suit premises to the landlord within two months positively.