' This appeal has been filed to assail the orders dated 19.11.2013 and 29.4.2014 passed by the learned Additional Controller of Rents, Walton Cantonment Board, Lahore, whereby the defence of the appellant was struck off in terms of sub-section (9) of Section 17 of the Cantonments Rent Restriction Act, 1963 and his eviction was ordered from the demised premises.
2. Shortly put, the facts are that Mst. Sharifan Bibi since deceased (represented by Respondents Nos. 2-i. To 2-v) instituted an ejectment petition before the Controller of Rents, Walton Cantonment Board, Lahore, maintaining that she was owner of property bearing No, E-133, seven street, Koray Chowk, Walton Road, Walton. Cantonment Board, Lahore. She let out shops Nos. 6 & 7 to Shaukat Ali, the present appellant at the rate of Rs, 3000/- a month vide rent deed dated 18.5.2004. The tenancy was to commence from 1.1.2003 and to expire on 31.12.2005. However, it was extended to 31.12.2008, putting up the rent from Rs, 3000/- to Rs, 7000/- per month. She went on to allege that ultimately the rent was enhanced to Rs, 15000/- for the two shops. She sought eviction of the tenant/appellant on the ground that he committed default in the payment of rent cor the months of January 2012 to June 2012. The rent due from the appellant was worked out at Rs, 90,000/-, There is also an assertion in the ejectment petition that the appellant had sublet the shops to M. Amjad and Maqsood, Respondents Nos. 3 and 4 herein.
3. The appellant put iii an appearance.' He did not deny the relationship of landlord/landlady and tenant, but took the plea that one of the shops rented out to him had already been got vacated by the landlady on the ruse that she was to construct a staircase there. 4 was maintained by him that he was liable to pay rent at the rate of Rs, 7000/- a month for a shop in his possession. He also denied that had parted with the possession of the shop(s), subletting them to Respondents Nos. 3 and 4. In short, he adopted the stance that he was not a defaulter and nothing was due from him to the landlady.
4. On 19.11.2013, the learned Controller of Rents passed an / order in terms of sub-section (8) of Section 17 of the Cantonments Rent Restriction Act, 1963, whereby the appellant/tenant was ordered . To deposit the arrears of rent amounting to Rs, 3,45,000/- with him by 17.12.2013. At the same time, he was ordered to deposit the future rent at the rate of Rs, 15000/- a month before the 5th of each month until the decision on the ejectment petition.
5. On, 23.1.2014, an application was moved on the part of the landlady under sub-section (9) of Section 17 of the Cantonments Rent Restriction Act, 1963, seeking to strike off the defence of the appellant/tenant. Needless to say, the appellant was required to file a reply thereto. On 29.4.2014, the learned Additional Controller of Rents, Walton Cantonment Board, Lahore proceeded to allow the application moved by the landlady and struck off the defence of the appellant, thereby ordering his eviction from the demised promises.
6. As stated above, the appellant feels aggrieved by the two . Orders dated 19.11.2013 and 29.4.2014, which have been brought under challenge by filing the instant appeal.
7. In support of the appeal, the learned counsel for the appellant contends that the delay in depositing the rent in compliance with the order dated 29.4.2014 passed by the learned Additional Controller of Rents, Walton Cantonments Board, Lahore was due to the fact that the appellant is a chronic heart patient. He seriously fell ill on 2.1.2014 and was under treatment until 6.1.2014.
According to him, the doctors had forbidden him to speak to anyone; therefore, it was beyond his control to make the requisite deposit of rent before 7.1.2014. He further argues that the appellant had filed a civil suit for the recovery of money. It was maintained in that suit that the appellant was coerced into paying enhanced rent at the rate of Rs, 15,000/- a month contrary to the agreement made between 'the parties to the suit and that he was entitled to recover the amount from his landlady, which was paid in excess of the agreed rent. He makes the argument that had the learned Additional Controller of Rents, Walton Cantonment Board, Lahore taken the civil litigation into consideration, he would have arrived at a conclusion different from the one that he reached.
Lastly, it was argued by him that as one shop has already been got vacated from the appellant, he was to pay rent at the rate of Rs, 7000/- a month and not at the rate of Rs, 15000/- per month, as was ordered by the learned Controller of Rents, Walton Cantonment Board, Lahore. In other words, the submissions made by him boil down to this: that the appellant never fell behind with the rent and that he had already paid double the rent due from him. Therefore, it was wrongly held by the learned Controller of Rents that he failed to comply with the direction made by him- in his order dated 29.4.2014.) He has placed reliance upon the cases reported as "Ghulam Muhammad Khan Lundkhor v. Safdar Ali" (PLD 1967 S.C. 530) and "Muhammad Nawaz Sheikh v. Manzar Hassan and others" (PLD 2011 Lahore 531) to urge that the alleged default on the part of the appellant was not willful, deliberate and calculated, rather he was a victim of circumstances on account of his failing health.
8. Conversely, the learned counsel for the respondent/landlady has argued that the provisions of Section 17(9) of the' Cantonments Rent Restriction Act, 1963 are mandatory and that the learned Addl. Controller of Rents, Walton Cantonment Board, Lahore was not vested with any authority to overlook or condone the default made by the appellant. It has been emphasized by him that the impugned order is quite in consonance with the law laid down by the Superior Courts. In this respect, he has placed reliance on the judgments reported as "Messre Meridian Corporation (Put.)
Ltd. v. Mrs. Yasmeen Riaz" (1999 SCMR 832), "Naeem Ahmed Jalbani v. Sardar Zahir Khan" (2004 MLD 1993), "Ghulam Mustafa Bhughio v. Additional Controller of Rents, Clifton and others (2006 SCMR 145), "Safeer Travels (Put.) Limited" (PLD 2007 S.C. 504) and "Shahid Mehboob v. Muhammad Ismail"
(2008 CLC 87). It was pointed out by him that the appellant was not hospitalized during the critical period and he managed the fake certificates regarding his illness to cover up the delay in depositing the rent. Last but not least, the learned Additional Controller of Rents was not to go into factual controversy at the time of passing the impugned order. Furthermore, the civil suit was instituted by the appellant just to sidetrack and deflect the proceedings conducted by the learned Additional Controller of Rents and befuddle the landlady. Otherwise, the Civil Court lacks jurisdiction to adjudicate upon the disputes arising out of the tenancy agreement.
9. I have heard the learned counsel for the parties and perused the record with their assistance.
10. Since the arguments of the learned counsel for Cie parties revolved around sub-section (9) of Section 17 of the Cantonm mts Rent Restriction Act, 1963, it would be advantageous and convenient to reproduce the same for ready reference: "If the tenant fails to deposit the amount of rent b before the' specified date or, as the case may be, before the 51h of the month, his application, if he is a petitioner, shall be d smissed, or his defence, if he is a respondent, shall be struck off and the landlord shall be put in possession of the building wit mut any further proceedings."
11. From a bare perusal of the aforequoted provisions of law, it is patently obvious that if the tenant commits default in complying with the direction made by the Controller of Rents, and he does not make the deposit of rent before the date specified in the order, and if no date is specified in the order to make the deposit of rent, the same must be deposited before the 5th of the Month, meaning thereby that in that event the rent is to be deposited by the 4th of each month. If the tenant fails to deposit the rent, the Controller of Rents is left with no option but to strike off the defence of the tenant, with the further direction that the landlord/handlady would be put in possession of the demised premises and that too without any further proceedings. In other words should this happen, the landlord would not have to file an execution petition for taking possession from the tenant.
12. The provisions of sub-section (9) of Section 17 of the Cantonments Rent Restriction Act, 1963 have repeatedly attracted the attention of the Superior Courts. In the case of "M. H. Mussadaq v.
Muhammad Zafar .Iqbal and another" (2004, SCMR 1453); it was held by the Hon'ble Supreme Court of Pakistan that:-- " it is manifest that the above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meanin and Rent Controller has no power to extend time and condoned the same. To further fortify, reference can be made to the case of Misbahullah Khan u. Mst. Memoona Tashinuddin (1995 SCMR 287) in which this Court while interpreting the scope of Section 11 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. It directly punishable and in consequence the defence of tenant can be stuck off and eviction can be granted. In the case of Province of Punjab and others v. Muhammad Jalil-urRehman (1986 SCMR 1705), it has been held by this Court that the Rent Controller had no power to ignore the Urban Rent Restriction Ordinance (VI of 1959). Similarly in the case of Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 557) this Court refused to grant leave to appeal and dismissed the petition and maintained that the Rent Controller had no jurisdiction to =done one day's default in making deposit of the rent on due date." (Emphasis added)
13. In the case of "Safeer Travels (Put,) Limited" (PLD 2007 S.C. 504) analogous provisions of Section 13(6) of the Repealed West Pakistan Urban Restriction Ordinance, 1959 came up for consideration and it was observed by the apex Court that the failure of the tenant to comply with the tentative rent order of Rent Controller would entail the striking off his defence. It is pertinent to mention that almost entire case law on the subject was discussed threadbare in the aforesaid judgment.
14. The above statement of law regarding the mandatory nature of the tentative rent order passed by a Controller of Rents was reiterated in the following cases:-- "(i) Khawaja Muhammad Mughees v. Mrs. Sughra' Dadi (2001 SCMR 2020).
(ii) Muhammad Zahir v. Mst. Hussan Zari (2007 CLC 556).
(iii) Major Ijaz Azizi v. Muhammad Shahzad Hanif and another (2007 MLD 542).
(iv) Mian Muhammad Lateef v. Mst. Nasima. Warsi through L.R. (2009 CLC 279).
(v) Naeem Ahmad Jalbani v. Sardar Zahir Khan (2004 MLD 1993).
(vi) Messrs Meridian Corporation (pvt.) Ltd v. Riaz Ahmed (2001 MLD 1681).
(vii) SyedMehdi Raza v. Mst. Abeda Sultana (1998 MLD 1073).
(viii) Muhammad Ali Tauqir v. Rafiq Ahmad (1999 CLC 795).
15. It is not in dispute that the learned Additional Controller of rents, Walton Cantonment Board, Lahore had ordered the appellant to deposit the future rent at the rate of Rs, 15000/- a month before the 5th of each month vide order dated 19.11.2013. It has also been admitted by the learned counsel for the appellant that the appellant did not comply with the order and deposited the rent on 7th January, 2014. According to him, 4th and 5th January, 2014 fell on Saturday and Sunday, and as such were the public holidays, but he has not explained as to what prevented the appellant from depositing the rent with the Controller of Rents on the 6th January, 2014. If the appellant was so seriously ill as has been made out, he could not have deposited the rent on the 7th January, 2014. It could not be controverted that the appellant was not admitted to any hospital for his treatment during the first week of January, 2014. Therefore, the facile explanation offered by him for the late deposit of rent is not tenable. Since the law on the subject is so stringent that it does not countenance the delay of even one day, as has been held by the Hon'ble Supreme Court of Pakistan in the case of "M. H. Mussadaq v. Muhammad Zafar lqbal and another" (2004 SCMR 1453)
(supra), the learned Additional Controller of Rents, Walton Cantonment Board, Lahore did not commit any illegality in passing the impugned order dated 29.4.2014. The defence of the appellant was rightly struck off by him and his eviction order was passed in accordance with the law. I find no infirmity or jurisdictional defect in the impugned order dated 29.4.2014 passed by the learned Additional Controller of Rents, Walton Cantonment Board, Lahore.
16. At the time of passing the impugned order, the learned Additional Controller of Rents, Walton.
Cantonment Board, Lahore was not to be deflected by any other collateral proceedings and he was not supposed to take a look at the plaint in a suit instituted by the appellant. He was to confine himself to see as to whether his order as to the tentative rent passed in terms of sub-section (8) of Section 17 of the Cantonments Rent Restriction Act, 1963 was carried out or not. The other question raised- by the appellant regarding the receipt of alleged excess rent by the landlady/respondent was and is extraneous to the considerations that were to be kept in view in regulating the proceedings of the Additional Controller of Rents, Walton Cantonment Board, Lahore in the exercise of his powers under sub-section (9) of Section 17 of the Cantonments Rent Restriction Act, 1963. For the very same reasons, they are not germane to the controversy raised in the appeal and such contentions raised by the appellant are hereby repelled.
17. For what has been stated above, this appeal is devoid of merits and is hereby dismissed.
(R.A.) .