' RAUF AHMAD SHEIKH, J.--- The petitioner has assailed the vires of judgment and decree 4-12-2012 passed by the learned Additional District Judge, Chakwal, whereby an appeal filed by him against the judgment and decree dated 5-7-2012 of the learned Special Judge (Rent), Chakwal was dismissed. The respondents Nos.1 and 2 had sought the ejectment of the petitioner from the shop No,3 Nawaz Market near GPO, Talagang, District Chakwal, (Hereinafter called the rented premises) with the contention that the petitioner had not deposited the rent in terms of order dated 27-7- 2009 passed by the Rent Controller, and a sum of Rs,54,224 was due from him as arrears so he was defaulter in payment of the rent and was liable of ejectment. The petitioner moved an application for leave to appear and defend with the contention that the respondents Nos.1 and 2 had filed a petition for execution of the order dated 27-7-2009, on which the ejectment order was passed and after dismissal of the appeal, he assailed the said order through writ petition and the same was accepted by this Court and as such no default has been committed.
2. The learned Rent Tribunal granted leave to appear and defend. After framing the issues and recording the evidence an ejectment order was passed. The ejectment petition was accepted and the petitioner was directed to vacate the rented premises. The appeal filed by the petitioner was dismissed by the learned Additional District Judge through impugned judgment and decree.
3. The learned counsel for the petitioner has contended that the order dated 27-7-2009, whereby the rate of rent was enhanced by 10% per annum was illegal and as such the non-payment of the rent at the enhanced rent did not amount to willful default; that even otherwise, the petitioner had deposited the arrears as is clear from the receipts Exh.R/4 and subsequently has been depositing the rent at the enhanced rate so he is not a defaulter. It is contended that the writ petition filed by another tenant has been admitted to hearing by another learned Bench of this Court so this petition should also be admitted to regular hearing and be decided on merits.
4. Vide order dated 21-1-2013, I had directed that this petition be placed before my learned brother Ch. Muhammad Younis, J in view of the contentions raised by the learned counsel for the petitioner.
His lordship is not gracing the Rawalpindi Bench at present so the contention that the petition be placed before the said learned Bench has no force and of course cannot be acceded to. Even otherwise, the disputes between the landlord and different tenants are to be decided on independent merits.
5. The learned Rent Controller, Chakwal, while deciding an earlier ejectment petition filed by respondents Nos.1 and 2 had directed the petitioner to pay the rent @ Rs,1800 per month for January to February, 2007 and to increase the rent @ 10%, per annum w,e,f, July, 2007. Although the said petition was dismissed but the order regarding enhancement of the rent was not challenged by the petitioner. It is clear from the order dated 27-7-2009 that initial rent of Rs,1500 per month was fixed about seven years prior to institution of the first petition on 2-2-2007. The contention of the learned counsel for the petitioner that the learned Rent Controller could have not enhanced the rent and as such the order dated 27-7-2009 was illegal has no force because the said order was never assailed by the petitioner and had attained finality. Even otherwise, under section 5-A of the Urban Rent Restriction Ordinance, 1959, the provisions of which were applicable at the relevant time, the rent was to be increased by 25% after every three years. The initial rent of Rs,1500 fixed seven years back, would have been Rs,1875 per month after expiry of first term of three years and Rs,2343 after the expiry of the second term of three years. In these circumstances, the order passed by the learned Rent Controller, which was not assailed by the petitioner was neither harsh nor excessive rent was fixed. The contention that the Rent Controller had no power to enhance the rent @ 10% per annum may be true but the same was less than the automatic increase as was admissible under the law. The petitioner never paid the rent at the enhanced rate and only deposited the arrears from 1-8-2008 to July, 2010 through Exh. R4. If the rent at the increased rate is not paid or tendered, the tenant becomes defaulter for all intents and purposes. The subsequent payment or deposit of arrears does not wipe off the default once A committed. In this case, the petitioner never tendered the rent at the enhanced rent fixed by the learned Rent Controller or as was admissible under section 5-A of the Urban Rent Restriction Ordinance, 1959. Above all, according to the petitioner/respondent the tenancy started seven years prior to 2007 and according to the petitioner it commenced from 1968. There is no written agreement. In absence of the written agreement as to the period, the tenancy would be deemed to be on month to month basis terminable on one month's notice by either of the parties. After filing of the execution petition of order dated 27-7-2009, it would be deemed that the notice to terminate the tenancy was served. It is true that the previous order for execution of order dated 27-7-2009 was set aside by this Court vide judgment dated 22-11-2011 but at the same time in para No,4 of the said order, the respondents/landlords were allowed to move the ejectment petition on the grounds available to them. The petitioner did not deposit the rent at the enhanced rate and as such was defaulter. The tenancy also stood terminated with expiry of its period, which in this case was on month to month basis as already held above.
6. For the reasons supra, the impugned order does not suffer from any illegality or infirmity. The petition is without merits and the same is hereby dismissed in limine. However, the petitioner is given the period of two months from today to vacate the rented premises subject to payment of monthly rent at the enhanced rate.