This is an appeal by the landlady Mrs. Iqbal Siddiqui against appellate order dated 2-3-1978 of Additional District Judge, Lahore, whereby he had set aside the order dated 25-2-19'1'1 of Rent Controller, Lahore, striking of defence of respondent-tenant under section 13(6) of West Pakistan Urban Rent Restriction Ordinance, VI of 1959 (hereinafter called the Ordinance) and bad remanded the case to the Rent Controller with the direction that be should give parties a chance to lead evidence on questions raised in proceedings under section 13(6) of the Ordinance and on issues framed in the case and then decide the case in accordance with law.
2. The facts of the case are that on 13-10-1976, appellant filed an ejectment application against respondent, inter alia, on the ground of default in the payment of rent from May 1976 onwards. In the written statement, tenancy was admitted and it was stated that appellant-landlady had inten- -tionally not received the rent from July, 1976. An order under section 13(6) of the Ordinance was passed by the Rent Controller directing, inter alia, the deposit of arrears of rent from May, 1976 onwards. It was, however, specifically directed in the order that tenant-respondent could deduct the rent already deposited. He fixed 5-1-1977 as the next date for submission of receipts of rent. The tenant-respondent deposited the arrears of rent less the rent of May and June and on 5-1-1977 produced receipts dated 17-5-1976 and 9-6-1976 showing payment of rent of one month each to landlady as well as receipt of deposit of remaining arrears of rent in the Court of Rent Controller.
Thereupon the Rent Controller framed issues on merits of the case and fixed the case for evidence of parties. On 10-1-1977, the landlady filed an appli--cation under section 13(6) of the Ordinance for striking of defence of respon--dent on the ground that rent for the months of May and June, 1976, had not been deposited and the receipts submitted in the Court were in fact, for March and April and the same had been manipulated so as to look to be receipts for the months of May and June, 1976.
3. The Rent Controller held that order of deposit had not been complied with and that respondent- tenant should have deposited the arrears of rent of these two months under protest and thereafter requested for allowing the said amount to be withdrawn. He struck of, defence of respondent -- tenant and ordered his ejectment. In appeal by the respondent-tenant, the learned Additional District Judge held that in view of the objection taken in the application that receipts had been tampered with. It was imperative for the learned Rent Controller to make enquiry regarding the said receipts before making the impugned order and since he had not given any chance to parties to produce evidence on that fact and on other issues, it was a fit case for remand.
4. The learned counsel appearing on behalf of appellant-landlady has raised the following two points in this appeal-
(a) that the impugned order of Additional District Judge is based on the misapprehension that the Rent Controller had provided in his deposit order that rent already deposited could be deducted from the amount required by the Rent Controller to be deposited in his Court ; and
(b) that receipts dated 17-5-1976 and 9-6-1976. Had been tendered in the Court after the. Passing of order under section 13(6) of the Ordi--nance and could not have been taken into consideration while calculating the sum of actual arrears of rent required to be deposited in the Court.
The first point is not based on correct reading of said order of Rent Con--troller. I have seen the certified copy as well as original order dated 1-12-1976 of Rent Controller under section 13(6) of the Ordinance. It clearly contains a direction that any sum deposited already can be deducted by the tenant-respondent while calculating the final amount to be deposited by him in the Court under said order. The learned counsel appearing on behalf of appellant have been shown the said order again in this Court and they now concede that this provision is available there in the said order. The order of Additional District Judge cannot, therefore, be taken exception to on this ground.
5. As for second point, it was neither raised by the appellant in her application for striking of respondent's defence nor urged by her at the time of hearing the appeal by Additional District Judge. In the application for striking of the defence, she had rather proceeded on the premise that sum of these receipts could be deducted from the sum to be deposited under the order of Rent Controller passed under section 13(6) of the Ordinance, provided the receipts were genuine. The appellant cannot now be allowed to take up a different stand. Even otherwise, the point in question has no legs to stand upon. As already stated, the respondent-tenant had in his written statement dated 17-11-1976 taken up the plea that rent for July and August 1976, was not intentionally received by landlady. This averment implied that the position taken up by respondent-tenant in the written state--ment was that rent for months of May and June had already been paid to and received by appellant-landlady, Alongwith this written statement, respondent-tenant filed original notice from counsel for appellant-landlady to respondent-tenant alleging that respondent had defaulted in paying rent for May and June, 1976, as well as respondent-tenant's reply dated 9-6-1976 controverting the said allegation and stating that printed receipts were issued to him after receipt of rent at the rate of Rs.550 per month and that the said receipts were available with him intact.
The receipts dated 17-5-1976 and 9-6-1976, showing payment of rent for months of May and June 1976. Filed before the Rent Controller on 5-1-1977, were no doubt put on record after the order for deposit had been passed on 1-12-1976. But in view of the stand taken earlier in the reply dated 9-8- 1976, to notice and written statement dated 17-1 i-1976, that there was no default for months of May and June 1976, and in view of permission of Rent Controller that sums already deposited could be deducted from the sum of arrears required to be deposited, A the said receipts had to be taken into consideration and their sums had therefore, rightly been excluded from the sum of arrears required to be deposited in the Court of Rent Controller. The second plea thus also fails and is repelled.
6. No other point has been argued.
7. This appeal is, therefore, dismissed with no order as to costs. The result is that the order of Additional District Judge remanding the casa to Rent Controller for enquiry in the first instance into genuineness of said two receipts in proceedings on application under section 13(6) of the Ordinance and later in case of dismissal of said application, for recording of evidence on all the issues framed in the case and decision on merits in accordance with law is maintained.