IKRAMULLAH KHAN, J. Through the instant Constitutional petition, petitioner has challenged the legality and validity of impugned judgments dated 30.9.2010 and 21.1.2012 rendered by learned Rent Controller , Peshawar and Additional District Judge-IX, Peshawar respectively .
2. In essence, the respondents filed an ejectment petition u/s 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for ejectment of petitioner from two shops Nos.3 & 4, situated at Awan Mansion (market) bearing No.4637, Service Road, opposite G.T. road near General Bus Stand, Peshawar.
According to the alleged facts mentioned there in ejectment petition, respondents had claimed that the premises under consideration were purchased by them through mutation No.8196 dated 15.8.2006 and mutation No.8131 dated 15.6.2006, from the original and rightful owner of the concerned shops, while the petitioner was tenant over the premises but failed to pay the rent due since June, 2006. Petitioner was summoned by learned trial Court and on direction of the Rent Controller he submitted his written statement, wherein he denied the relationship of landlord and tenant between the parties.
3. The relevant issues were framed and after conclusion of trial, application filed by the respondents in terms of Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, was accepted and the petitioner was directed by learned Rent Controller Peshawar to vacate the suit premises within 30 days and also to pay rent since 2006 till 30.9.2010 at the rate of Rs.6000/- per month within 30 days positively. Being dissatisfied and aggrieved by the impugned judgment rendered by learned Rent Controller Peshawar, petitioner preferred an appeal before the learned District Judge, Peshawar , which was entrusted by learned District Judge to Additional District Judge-IX, for adjudication in accordance with law .
4. The learned appellate Court below after hearing both the parties dismissed the appeal filed by petitioner and upheld the impugned judgment of learned Rent Controller accordingly, hence the instant petition.
5. Learned counsel for petitioner at the very outset of his arguments, draw the attention of this Court towards the warrant of possession issued by the learned Rent Controller, Peshawar on 20.2.2012, and candidly stated that in pursuance of warrant of possession issued by learned Rent Controller, in execution petition No.10/10 had already taken over the vacant possession of the suit premises and did not stress to argue this Writ petition insofar as the ejection of petitioner from the suit premises was concerned. However, learned counsel for petitioner vehemently agitated that the second part of the impugned judgment dated 30.9.2010, wherein a decree in respect of previous arrears of rent at the rate of Rs.6000/- per month has been passed, is without jurisdiction and of unlawful authority.
6. On the other hand learned counsel for respondents supported the impugned judgment and argued that the learned Rent Controller was fully justified and having jurisdiction to pass an order in respect of past arrears of rent against the tenant who had not paid the required rent due.
7. I have heard learned counsel for the parties in light of law and facts on available record.
8. To resolve the legal preposition as to whether a Rent Controller could direct a tenant to pay the past arrears of rent due from him while passing order of ejectment at the conclusion of trial. It would not be out of context to reproduce the relevant provision of West Pakistan Urban Rent Restriction Ordinance 1959, governing the same controversial issue. Sub-section 6 of Section 13 reads as:- "In proceedings under this section on the first date of hearing or as soon as possible after the date and before issues are framed, the Controller shall direct the tenant to deposit al the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case.
The controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
9. It is crystal clear from the second part of sub-section 6 of Section13 of Rent Restriction Ordinance, that the Controller shall finally determine the amount of rent due from the tenant and direct that the same shall be paid to the landlord, however, any amount paid by the tenant during course of trial shall be adjusted thereof. Learned counsel for petitioner based his arguments in this regard on the judgments of Hon'ble Lahore High Court, reported as "Khawaja Anwar Hassan Vs Naveed Ahmad Chaudhri & others" (PLD 2002 Lah 355) & "Zafar Sharif Vs Muhammad Shuja & another" (2002 YLR 1355).
10. I have gone through both the judgments mentioned hereinabove. In the first judgment of Khawaja Anwar Hassan, the preposition was that whether after direction passed under first part of sub-Section 6 of Section 13 ibid, in case the tenant failed to comply with the tentative order in respect of payment of tentative; and whereas the defence was struck off and eviction order is announced, whether in such situation, the Rent Controller may invoke the second part of sub-section 6 of Section 13 of Rent Restriction Ordinance, in order to direct the tenant to deposit the whole amount of rent due from him while in the second judgment referred by learned counsel for the petitioner, the preposition was that whether a Rent Controller may pass an order in respect of a time barred arrears of rent. The ratio decidendi, in both the cases referred by learned counsel does not attract to the given facts and circumstances of the case. In case in hand, as the petitioner had denied from the relationship of landlord and tenant respectively, therefore, the learned Rent Controller had not rendered any tentative order for deposit of rent during the course of trial. However, after full pledge trial and recording of evidence on the issue framed therein, the learned trial Court had rendered directions to the petitioner/tenant to pay the amount due from him within 30 days since 2006 till 30.9.2010, at the rate of Rs.6000/- per month.
11. The second part of sub-section 6 of Section 13 is unambiguous not only in regard to final determination of the rent but also in directing the tenant to pay the amount due from him in respect of the rent not paid by the tenant, so the contention of learned counsel for petitioner that the Rent Controller has got no jurisdiction to direct any tenant, to pay the arrears of rent after holding the relationship of landlord and tenant between contesting parties is misconceived, the second part of sub-Section 6 of Section 13 of the Rent Restriction Ordinance, empowers and invest the Rent Controller with the jurisdiction to finally determine the amount of rent due from tenant and also to direct that the same may be paid to the landlord. In cases where a tentative order for payment of rent had passed by the Rent Controller and any amount under direction of Controller had paid, shall be adjusted while passing final order by the Rent Controller in respect of payment of the amount of rent due from tenant, but the second part of sub-section 6 of Section 13 ibid could not be construed that if either tentative order has not been passed or in cases where tentative order has passed but the defence had struck off in term of sub section 6 of Section 13 of the Ordinance, the Rent Controller could not determine finally the amount of rent due from a tenant.
The word in second part of sub-section 6 of the Section 13 ibid is used as "shall" which bound the Rent Controller to finally determine the amount of rent and thereafter render direction to the tenant to pay the same to the landlord, irrespective of the fact whether, any tentative order of rent in term of first part of sub section 6 of Section 13 of the Ordinance had already been rendered or not at all.
12. For the reasons given hereinabove, the impugned judgments of both the learned Courts below are based on correct appreciation of law and the petitioner is bound to pay the amount of rent due from him, however, record reveals that the learned Rent Controller as well as the appellate Court below have not finally determined the amount of rent due from the tenant and only the facts alleged by respondents was accepted without any inquiry in this regard, in order to determine as to what was the actual rent payable by the petitioner. Therefore, this Writ Petition is partially accepted and the impugned judgments of both the learned Courts below are set aside to the extent of payment of rent at the rate of Rs.6000/- per month. The case is remanded to the learned Rent Controller to first determine the monthly rent of the premises in question and thereafter pass order for payment of the amount of rent due from the tenant. However, it be noted that this judgment shall not affect the first part of relief given to the respondents whereby the suit premises which has already been vacated and the possession of suit shops were handed over to respondents, which shall remain intact.