This Second Appeal from Order calls in question the judgment of the learned First Appellate Court dated 30-4-1978 delivered in Civil Appeal preferred by the tenant-respondent Rashid Ahmad against the landlords --appellants Mian Alauddin and another against his eviction from the property in dispute ordered by the learned Rent Controller, Lahore, by his order dated 31-3-1976.
2. The facts necessary for the purposes of this appeal, briefly stated, are that the appellants- landlords instituted an application for ejectment under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) before the learned Rent Controller, Lahore for ejectment of the tenant --respondent Rashid Ahmad from a room of property No. SW-102-R-2 situate in Prem Nagar, Chowk Old Chungi, Sanda Road, Lahore, on the ground of default in payment of rent for 12 months from 1-I1-1974 to 30-10-1975. The admitted rate -of rent is Rs. 18.00 per mensem.
Initially, the respondent-tenant took up the plea of non-existence of relationship of tenant and landlord between the parties. Later, however, the respondent made a statement admitting to be the tenant of the appellants in the property in dispute at t'-,e rate of Rs. 18.00 per month.
On 1-12-1975, the learned Rent Controller passed an order under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance directing the tenant to deposit the arrears of rent w. e. f. 1-6-1975 to 30-11-1975 at the rate of Rs. 18.00 per mensem totalling Rs. 103.00 by 10-12-1975, and to continue depositing future monthly rent before the 15th of every succeeding month. The case was adjourned to 11-12-1975.
On 11-12-1975, the respondent appeared before the Rent Controller and submitted that he was a poor man and as he received his salary late he had brought the money on .That date for deposit and as he did not realize the importance of the order of deposit of rent he may be given two more days time to deposit the rent. On this request the learned Rent Controller without making any specific order condoning the delay in depositing the rent and without giving a finding that the non- deposit - rent was for a valid reason extended the time for depositing the rent to 13-12-1975 and adjourned the case. The respondent, however, deposited the rent on 16-12-1975.
On 8-1-1976, the appellants made an application to the learned Rent Controller for striking off the defence of the respondent as he had not complied with the order of deposit of rent.
The application was resisted by the respondent, and, strangely enough, he took up the plea, in reply, that he received his salary on 12-12-1975 and as 13-12-1975 to 15-12-1975 were declared Eid Holidays he deposited the arrears of rent on 16-12-1975..
The learned Rent Controller on consideration of the matter did not accept the plea raised by the respondent and observing that the contention, of tile learned counsel for the appellants was that even the initial order of extension in time was void struck off the defence of the respondent and directed his eject--ment from the property in dispute by his order dated 31-3-1976.
Feeling aggrieved the respondent preferred First Appeal before the learned Additional District .Fudge, Lahore, who by his judgment dated 30-4-1978 accepted the appeal.
Feeling dissatisfied with the order of the learned First Appellate Court the appellants-landlords have come up in Second Appeal to this Court.
3. The learned counsel for the appellants contended that the judgment of tile learned lower Appellate Court is erroneous in law inasmuch as it has wrongly held that time could be extended by the learned Rent Controller as regards the deposit of arrears of rent but not as regards future monthly rent. He contended that the learned Rent Controller had no jurisdiction to extend time qua the arrears of rent as well and the Supreme Court's judgment on the subject cited as Messrs Ansari Brothers v. Holy Trinity Church Trust (1) was misinterpreted by the learned First Appellate Court as the same did not in any manner distinguish between default in payment of arrears and the future monthly rent. He also cited Syed Ghulam Shah Bokhari v. Muhammad Saeed Akhtar (2) to strengthen his argument that the Rent Controller had no power under the Ordinance to extend the period fixed by him for depositing the rent. Continuing his argument the learned counsel for the appellants argued that the learned lower Appellate Court also failed to appreciate the authority cited before it, viz, HafizAli Muhammad v. Jamal Din and others (3) that paucity of funds was no ground for condoning the delay in deposit of rent.
On the facts of the case, the learned counsel for the appellants contended that the respondent- tenant tried to practise fraud on the Court by taking the plea in reply to the application made by the appellants for striking off the defence that he received his salary on 12-12-1975. Referring to the statement of the respondent made before the Rent Controller on 11-12-1975, he submitted that he had stated before the Controller on 11-12-1975 that he had come with the money for deposit on that date and the question of his receiving the salary on 12-12-1975 was, thus, on the face of it an incorrect averment. It was also submitted that the salary received on 12. 12-1975 was not the salary for that month but was the advance salary which was again paid to the respondent on account of Eid. The deposit of rent by the respondent in the attendant circumstances on 16-12-1975 and not before 13-12-1975 was, according to the learned counsel, contumacious and the learn--ed Rent Controller had therefore rightly exercised the jurisdiction to strike off the defence of the respondent.
The interference by the learned lower Appellate Court, in view of the above position, it was contended, was highly uncalled for.
4. The learned counsel for the respondent, on the other band, argued that, in so far as the first default is concerned the period for deposit of rent having been extended by the Rent Controller and no appeal having been pre--ferred, the same could not be availed of for striking off the defence. Reliance vas placed in support of this contention on Hayat Ali v. Miss Aziza Mahmood (4) on the ground that appeal being available and having not been filed the appellant cannot challenge the vires of the order of extension of time in deposit of rent.
(1) PLD 1971 SC 700(2) 1972 SCMR 428
(3) P T. D 1966 Lah. 934(4) 1980 SCMR 298 On the merits of the case, the learned counsel for the respondent submitted that the Rent Controller had the jurisdiction to extend the time. Reliance was placed on Hashim Khan v. Ghulam Nabi and 7 others (1) and Saeedan BIN v. Ali Husain (2). It was further urged that 13-12-1975 to 15- 12-1975 being Eid Holidays the deposit of rent on 16-12-1975 would not constitute any default.
5. In reply, the learned counsel for the appellants contended that in view of the judgments of the Supreme Court in Ch. Muhammad Sharif v. Fazal-ur-Rehman and others (3), the order of the Rent Controller extending the time itself was void ab initio and the defence ought to have been struck off at the first instance of default. It was also urged that there need not have been filed any appeal against the aforesaid order of the Rent Controller' which was void and it could be challenged in any proceedings subsequently arising on the same issue. The learned counsel also contended that the Supreme Court's judgment reported as 1980 SCMR 298 cited by the learned counsel for the respondent has not held that appeal can be filed against the order of the Rent Controller extending the time but what has been held is that the finding as to whether the tenant has defaulted in comply--ing with the order passed under section 13 (6) of the W. P. U. R. R. Ordinance is appealable.
6. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the appellants have force.
7. It has been rightly pointed out that the Rent Controller had no power to extend the time for the deposit of rent and such an order would be obvious--ly without jurisdiction, especially when there is no finding given that default in complying with the order passed under section 13 (6) of the Ordinance was for reasons beyond the control of the tenant.
Paucity of funds or poverty have been held to be no ground for holding that the non-deposit of rent was beyond the tenant's control. The statement of the respondent before the Rent Controller that the non-deposit was for the reason that he did not realize the importance of the order goes a long way to prove that the default was the result of neglect on the part of the respondent. The plea raised by him as to the receipt of salary belatedly also have been established on record to be without force it having been stated by the respon--dent himself before the Rent Controller that on 11-12-1975 he was possessed of money which he had brought for deposit on that date. The plea raised of receipt of the salary on 12-12-1975 and as such his inability to deposit arrears of rent on 11/12-12-1975 is also obviously untenable. The deposit of rent by a tenant is a condition precedent to his seeking any relief in proceedings under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). This obligation has not been in any manner fulfilled by the respondent who was rightly held as wilful defaulter in complying with the order of the Rent Controller for deposit of rent. The dictum of the Supreme Court laid down in 1972 SCMR 428 (at page 429) reproduced hereunder leaves no mannerof doubt that the Rent Controller has no power under the Ordinance to extend the period fixed by him for depositing the rent;--
(1) 1973 SCMR 112(2) 1975 SCMR 261
(3) 1982 CLC 384 "...It has been laid down that the Rent Controller has no powers under the Ordinance to extend the period fixed by him for depositing of the rent."
The same principle was reiterated towards the end of this judgment in the following words;- "...As already stated above, the appellant himself moved an application to the Rent Controller for extension of time, which was rightly rejected as he had no powers under the Ordinance to extend the time.
In the context of the above law laid down by the Supreme Court there is force in the contention raised by the learned counsel for the appellants that he could press into service the invalidity of the order of the Rent Controller whereby he had extended time for deposit of rent so as to support the subse--quent order of the Rent Controller whereby he struck off the defence of the respondent.
What the Rent Controller did by passing the subsequent order was to rectify the illegality committed by him in passing an order without jurisdiction which was void ab initio.
8. The most important factor which has persuaded me to set aside the judgment of the learned First Appellate Court is the conduct of the respondent in proceedings before the learned Rent Controller. As already observed above, the respondent categorically stated before the learned Rent Controller on 11-12-1975 that he was possessed of the necessary money on that date, and, in fact had brought the same with him for deposit on that date. His seeking time to deposit the arrears of rent, the amount of which was very meagre, and then again sleeping over the matter and not depositing the rent on 11112-12-1975, clearly establishes his contumacious attitude towards-the order of the learned Rent Controller about which he himself also stated on 11-12-1975 that he did not know the importance thereof. Again his taking an absolutely untenable plea that he received his salary on 12-12-1975 and as such could not deposit the rent on 11/12-12-1975 is falsified by his earlier statement that he was possessed of the money on I 1-12-1975. This attitude exhibits the manner of hide and seek adopted by the respondent which obviously cannot be countenanced. The learned lower Appellate Court in interfering with the order of the learned Rent Controller failed to take notice of the above factual position, and, thus, was misdirected in passing the impugned judgment.
9. In view of the foregoing discussion, accepting this Second Appeal, I set aside the judgment of the learned lower Appellate Court dated 30-4-1978 and restore the order of the learned Rent Controller dated 31-3-1976. No order as to costs.
10. At this stage, the learned counsel for the respondent requests for some time to be allowed to the respondent for vacating ; room in dispute.
11. One month's time is allowed to the respondent to vacate the premises in dispute and hand over possession thereof to the appellant subject to the condition that he pays the rent for that month to the appellants or deposits the same with the Re it Controller. In case of failure of the respon--dent to comply with the above direction he shall be liable to be evicted through the process of the Court.