' This appeal has been filed by the appellant/landlord against the orders dated 3rd September, 1975 passed by the learned Vth Additional District Judge Karachi, whereby he allowed the appeal and set aside the order of eviction passed by the Rent Controller on 28-5-1974 and 31-5-1974.
2. The brief facts, are that the appellant let out the ground floor of house No, 5, Block No, 7, P. E. C. H.
S,, Karachi, to the respondent on 1-8-1972 on rent at the rate of Rs, 350 per month payable in advance in the first week of every month. The tenant/respondent deposited Rs, 2,100 out of which Rs, 1,050 were paid by way of fixed deposit with appellant refundable to the tenant on his vacating the house and the balance amount of Rs, 1,050 was to be treated as rent paid in advance for the months of August, September and October, 1972.
3. As the respondent failed to pay rent for the months of November, 1972 to Marach, 1973 the appellant filed an application for ejectment against the respondent on or about 5-3-1973 in the Court of the Civil Judge and Rent Controller, Karachi which was registered as R. C. No, 690/73.
4. (i) On 4-10-1973 the learned Rent Controller passed a consent order under section 13(6) of the then West Pakistan Urban Rent Restriction Ordinance, 1959 directing the respondent to deposit arrears of rent amounting to Rs, 2, 00 for the period February, 1973 to September, 1973, before 15-11- 1973. The tenant was further directed to deposit current rent as well as the future rent at the rate of Rs, 350 per month before 15th of each subsequent month. The case was thereafter adjourned for framing of issues.
(ii) Against the aforesaid order the respondent filed an appeal before the learned District Judge, Karachi. This appeal was registered as Rent Appeal No, 421 of 1973 and was filed on 12-11-1973. The learned Appellate Court by order passed on the same day i,e. 12-11-1973 on an application made by the appellant for stay of the execution of the order dated 4-10-1973 granted interim stay subject to furnishing solvent security in the sum of Rs, 4,000. The respondent furnished the security in the shape of deposit of title deeds in respect of a property situated at Bannu. The appeal when came up for hearing, was however dismissed on 11-12-1973 with the observations that the order passed by the Rent Controller was tentative in nature and that it was not possible to hold inquiry at that stage as to the actual period for which the arrears were due. The learned First Appellate Court also held that the said appeal was hopelessly barred by time.
(iii) Against the aforesaid order passed in Rent Appeal No, 421 of 1973 the respondent preferred an appeal (Second Appeal No, 48/74) in this Court but the same was dismissed for' non-prosecution on 28-5-1974 as the appellant and his counsel were called absent. A review application was filed before the High Court, but that was also dismissed on 31-5-1974.
5. It would thus be observed here that on the dismissal of the appeal No, 421/73 by the first appellate Court on 11-12-1973 the stay order granted on 12-11-1973 automatically stood vacated and the order of the Rent Controller dated 4-10-1973 directing the respondent to deposit arrears of rent and future rent, stood restored.
6. (1) On 9-3-1974 the appellant/landlord moved an application under section 13(6) of the then West Pakistan Urban Rent Restriction Ordinance, 1959 for striking of the defence of the respondent on the ground that he had committed default in deposit of arrears of rent as well as monthly rent as ordered by the Rent Controller on 4-10-1973.
(ii) This application came up for hearing after notice to the respondent on 28-5-1974 when the learned Rent Controller after going through the record and perusing the report of the Nazir held that the respondent had deposited current monthly rent for the period commencing from January, 1974 till April, 1974, but neither the arrears of rent as ordered on 4-10-1973 nor further rent for the months of October, 1973 to December, 1973 had been deposited.
' In view of the default committed by the respondent in complying with the order passed on 4-10- 1973 for deposit of arrears of rent and future rent in the manner as directed, the Rent Controller by order passed on 28-5-1974, struck of the defence of the respondent and directed him to vacate the premises in question and hand over its vacant possession to the appellant landlord within one month of the said order.
(iii) Against the aforesaid order the respondent filed an application under Order LX, tule 1i, C4 P. C.
For setting aside the ex parte order passed on 28-5-1974. This application was dismissed by the Rent Controller on 31-5-1974 for the reasons given therein.
(iv) Against the above-mentioned orders dated 28-5-1974 and 31-5-1974, the respondent filed Rent Appeal No, 273 of 1974 in the Court of the District Judge, Karachi which was transferred to the Court of Vth Additional District Judge.
On an application made by the respondent in the said appeal, the learned first appellate Court by order passed on 25-6-1974 granted stay of the execution of the writ of ejectment subject to the tenant/respondent depositing the arrears of rent on or before 3-7-1974.
(v) Upon an application moved on 3-7-1974 by the tenant, the learned First Appellate Court extended the time upto 8-7-1974 for deposit of the amount. However on 8-7-1974 another application was filed for extension of time and ultimately on 16-7-1974 the tenant deposited Rs, 3,850 as per condition imposed on 25-6-1974 for grant of stay of execution proceedings.
7. By Judgment passed on 3-9-1975 the learned 1st Appellate Court, allowed the appeal and the order passed by the learned Rent Controller for striking off the defence of the tenant was thus set aside.
8. Aggrieved by the aforesaid order of the learned 1st Appellate Court, the landlord (appellant) has preferred this appeal.
9. The contention of the learned counsel for the appellant is that the order for deposit of rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance was passed by the Rent Controller on 4-10-1973 whereby the tenant was directed to deposit arrears of rent amounting to Rs, 2,800 for the period from November, 1972 to September, 1973 on or before 15-11-1973. He was also directed to deposit future rent before 15th of each month. This order was challenged in Rent Appeal No, 421/73. On 12-11-1973 the learned 1st Appellate Court in the said appeal granted stay of the execution of the order dated 4-10-1973 passed by the Rent Controller, on the respondent furnishing security in the sum of Rs, 4,000 which security was furnished by deposit of title deeds of an immovable property with the Nazir of the District Court.
' The contention of the learned counsel for the appellant however is that after the appeal No, 421/73 was dismissed on 11-12-1973 the stay order passed on 12-11-1973 came to an end and Order dated 4-10-1973 passed by the Rent Controller stood restored and thus the tenant was under a legal obligation to have deposited the arrears of rent amounting to Rs, 2,800 as per order dated 4-10- 1973 and future rent which had become due for deposit for the months of October, 1973 to December, 1973.
' The total amount the tenant became liable to deposit as per order of the Rent Controller passed on 4-10-1973, amounted to Rs, 3,500.
' It was also contended by the learned counsel that there was no valid excuse on the part of the respondent for not complying with the order of Rent Controller for deposit of rent passed on 4-10- 1973 within a reasonable time after the dismissal of Appeal No, 421/73 on 11-12-1973. It was also argued that the Second Appeal No, 48/74 filed by the tenant had also been dismissed on 28-5- 1974.
' I have heard the learned counsel for the parties in the light of the facts stated above and gone through the record.
' It is clear from the record that after dismissal of the Appeal No, 421/73 on 11-12-1973 the order of the Rent Controller passed on 4-10-1973,stood restored. As the respondent tenant thereafter aid not deposit the arrears of rent, the order of the learned Rent Controller striking off the defence on 28-5- 1974 was fully justified, and in fact it was the only possible order which could have been passed in the circumstances of the case. The learned 1st Appellate Court in Appeal No, 273/74 set aside the said order of the Rent Controller by judgment dated 3-9-1975 mainly on the ground that the order passed earlier on 12-11-1973 in Rent Appeal No, 421/73 whereby execution of the order dated 4-10- 1973 of the learned Rent Controller was stayed, amounted to an order which modified the aforesaid order dated 4-10-1973. Further according to the learned First Appellat Court the security for Rs, 4,000 by way of immovable property furnished by the tenant as condition for grant of stay order was "amount paid of Rs, 4,000 by way of security which modified the earlier order."
' The observation of the learned lower appellate Court may be reproduced in original herein below to appreciate its legality or otherwise :- "I still find that the Rent Controller has not referred this point of the amount paid of Rs, 4,000 by way of security which modified the earlier order despite the fact that the appellant lost the appeal on the point of limitation."
11. The error in the impugned order dated 3-9-1975 passed by the learned Vth Additional District Judge Karachi becomes obvious by a bare reading of the said order, relevant portion whereof has been reproduced above. The said interim order of stay of execution, neither had the effect of modifying the order of the Rent Controller dated 4.10-1973 nor could the said stay order (in the absence of any direction by the Appellate Court in Appeal No, 421/73) continued to subsist after dismissal of the said appeal No, 421/73 itself. The learned First Appellate Court failed to appreciate that with the dismissal of Rent Appeal No, 421/73 on 11-12-1973 the interim order of stay passed in the said appeal, also came to an end and the order of the Rent Controller passed on 4-10-1973 giving direction for deposit of rent, stood restored. If any authority is needed reference may be made to the case of Ansari Brothers v. Holy Trinity Church Trust (1), as well as the case of Ghulam Shah v. Muhammad Saeed Akhtar (2).
' In the latter case relying upon the observations made earlier in the case of Ansari Brothers, the Honourable Supreme Court held : "Even if it were assumed that there was a stay order in favour ,of the appellant the dismissal of his appeal revived the order of the Rent Controller and he should have then deposited the amount of rent within a reasonable time. He could not have possibly taken the date of the dismissal of the appeal as a fresh starting point for the deposit of the rent within two months period."
In the light of the above principles laid down by the Honourable Supreme Court, it is obvious that the tenant/respondent had committed default by his failure to deposit the arrears of rent and future rent, within a reasonable time after the dismissal of the appeal on 11-12-1973. Instead he deposited these arrears after a lapse of over seven months (i.e, on 16-7-1974). This was therefore a clear case of default under section 13(6) of Ordinance, 1959.
12. The learned First Appellate Court also committed serious error of law by holding the security by way of immovable property furnished by this respondent was "payment" of the amount of rent "by way of security".
(1) PLD 1971 SC 700 (2) 1972 SCM R 428 ' This finding is against the requirements of section 13(6) of the Ordinance of 1959 which require deposit of all the rent due and also deposit of monthly rent regularly before fifteenth day of each month. It would also be noted here that in the interlocutory application filed in Rent Appeal No, 421 of 1973 the tenant had prayed for stay of the execution of the order dated 4-10-1973 'pending decision of the appeal'. Therefore, in terms of the appellant's own prayer, the stay order would not be available after 11-12-1973 when the appeal was dismissed.
13. The learned counsel for the appellant lastly contended that the respondent/tenant had deposited Rs, 2,100 on 1-8-1972 with the landlord when he took the lease, thus when the case was filed for ejectment on 5-3-1973 against him the application for ejectment itself was not maintainable. This contention of the learned counsel however cannot be accepted as the tenant had been directed to put the landlord/appellant in possession on the ground that his defence had been struck off for his failure to deposit arrears of rent and future rent as ordered by the Rent Controller on 4-10-1973 under section 13(6) of the aforesaid Ordinance of 1959. This order was passed by consent of the parties. No lawful justification has been shown by the tenant for his failure to comply with the consent Order passed by the Rent Controller for deposit of rent. It has been held by the Honourable Supreme Court in the case of Ghulam Muhammad Khan v. Safdar All (1), that non-compliance of the order of the Rent Controller which is avoidable cannot possibly be excused and that the most liberal interpretation that has been given to the word "default" would cover only defaults which are unavoidable or are due to causes for which a defaulter is not in any was responsible. No such cause has been made out by the respondent. Further the appellant cannot be permitted to challenge the validity of the order dated 4-10-1973 which was passed with his own consent and appeal preferred by him against the said order stood dismissed by orders passed by the Additional District Judge on 11-12-1973.
' Moreover on 4-10-1973 when the Rent Controller passed the order for deposit of rent under section 13(6) of the Ordinance of 1959 the respondent admittedly was in arrears of rent for the months of February, 1973 to September, 1973, which he was directed to deposit besides future monthly rent.
This order was passed with the consent of the appellant as already noted above.
14. The respondent however failed to deposit these arrears of rent He also did not deposit rent for the months of October, November and December, 1973. These defaults committed by the respondent cannot be described as unavoidable or due the to causes for which the appellant is not in any way responsible.
15. Under the circumstances of the case and for the reasons state above I hold that the respondent committed default of the order passed be the Rent Controller on 4-10-1973 and his defence was rightly struck off be the learned Rent Controller. The order dated 3-9-1975 passed by the learned Vth Additional District Judge, Karachi, in Rent Appeal No, 273/7 is thus set aside and the Order of the Rent Controller passed on 28-5-1974 hereby restored.
16. The respondent is allowed to vacate the premises within a period of 4 months provided he deposits rent every month for this period.
(1) PLD 1967 SC 53()
' With the above observations the appeal is allowed. There shall however be no order as to costs.