1. This appeal is directed against the order of the VIth Additional District Judge, Karachi dismissing the rent appeal and upholding the order of the Controller striking of the defence of the appellant under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The respondents filed an ejectment application against the appellant inter alia on the ground of default in payment of rent from Ist October, 1975 till the filing of the applicant. The other grounds pleaded in the application not being relevant for-the present appeal have not been referred here.
2. In the written statement the appellant denied the allegation and pleaded that the rent for the month of October and November, 1975 was duly paid to the respondents but they refused to issue rent receipts and threatened him. The appellant, therefore, filed a rent case bearing No. 4262/75 for permission to deposit the rent in Court and has deposited the same including the rent for the months of October and November, 1975 though the same had been paid to the respondent. The parties filed their statement of account in which the respondents claimed rent at Rs. 50 per month due from 1-10-1975 till 30th November, 1976. . The appellant also filed his statement of account in which rate of rent was not disputed. He gave particulars of the rents deposited in Case No. 4262/75 and further mentioned that the amount deposited includ--ed the rent "for the months of October and November" paid by way of abundant caution. Again on 18-2-1977 a second statement of account was filed by the appellant in which full particulars of the amount deposited were given which included the rent from October, 1975 to February, 1977 and again it was stated that the above figures of the account include the rent for the months of October and November 1975 which was deposited as the safe side". The learned Controller passed an order for deposit of rent on 12-9-1979 in the following terms :- "Advocate for the applicant present. Advocate for the opponent was present in the morning. He is not present now (12-00 noon) Heard Advocate for applicant perused the pleading and the rent accounts filed by the parties. Tenancy and rate of rent i.e. Rs. 50 per month are admitted. The applicant has claimed rent from the month of October 1975 onwards. The opponent has not denied the period of arrears of rent but has stated that he has been regularly depositing the rent in Misc.
3. Rent Case 4262/75.
4. In the circumstances mentioned above the opponent is directed to deposit in Court in this case, arrears of rent from October 1975 to August 1977 (23 months) at Rs. 50,per month amount to Rs.
5. 1,150 less the amount of rent already deposited in the said Misc. Rent Case on or before the 14th of October, 1977.
6. The opponent is further directed to keep on depositing the future monthly rent at the abovesaid rate before the 15th of each subsequent calendar month till the final decision of this case."
7. On 19-1-1978 the respondents made an application under section. 13 (6) of Urban Rent Restriction Ordinance, 1959 for striking of the defence of the appellant as he had committed default in depositing the rent as ordered by the Controller. The appellant filed objections to this application in which the allegation was denied. However, after considering the objections, the receipts filed by the appellants and the report of the Nazir the learned Controller came to the conclusion the there was a default in payment of current rent for the month of October, 1977 which was deposited on 4th December, 1977 instead of 15-11-1977. The explanation offered by the appellant was that in the second statement of account dated 8th February 1977 the amount for the month of January and February, 1977 was mentioned as Rs. 150 which was a typing error and ought to have been Rs. 100.
8. Con--sequently taking the total mentioned in the statement of account as basis the discrepancy continued resulting in a deficit of Rs.
50. The mistake was alleged to he unintentional and therefore, it was pleaded that respondent's application be dismissed. Both the Courts below have refused to accept appellant's explanation and his defence was struck off.
9. Mr. Nooruddin Ramzan the learned counsel for the appellant has contended that the order of the Controller dated 12-9-1977 was riot passed I n strict compliance with the provisions of section 13 (6) of Urban Rent Restriction Ordinance, 1959 and, therefore, even if a default has been commit--ted the appellant cannot be ejected and his defence cannot be struck off. In support of his contention he has referred to the provisions of section 13 (6) and has contended that as there was a dispute about the amount of rent due the Controller should have determined such amount approximately and issued a direction to deposit the same before a date fixed for that purpose. The con--tention is that the Controller has not followed this provision inasmuch as the approximate amount has not been determined but it has been left to the calculation of the appellant by deducting the amount which had been deposit--ed in the Court in Rent Case No. 4262/75. On the other hand Mr. Mustafa Lakhani the learned counsel for the respondents has contended that the order has passed perfectly in terms of the provisions of section 13 (6) and the first part of this subsection will cover the case inasmuch as there was no dispute about the rate of rent and arrears of rent and, therefore, the determination as required by the second part of the subsection was not necessary.
10. To appreciate the arguments it will be convenient to reproduce section 13 (6) of Urban Rent Restriction Ordinance, 1959.
11. "In proceedings under this section on the first date of hearing or as soon as possible after that and before issues are framed the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the fifteenth day of each month, she 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 dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceed--ings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that same be paid to the land--lord, subject to adjustment of the approximate amount deposited by the tenant."
12. Under section 13 (6) the Controller is required to direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case before the 15th of each month.
13. Such a direction to deposit all the rent can be given in case where there is no dispute about the rate of rent and amount of rent due. However, if there is any dispute about the amount of rent due or the rate of rent and 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. Taking the entire subsection together it contemplates two situations (i) where there is no dispute about the rate of rent of the rent due and (ii) where there is dispute about the rate of rent or the rent due. In the first situation the Controller is required to direct the tenant to deposit all the rent due from him and also to deposit future rent regularly till the final decision of the case before the 15th of each month. This is clearly spelt out from the reading of the entire subsection because in the following part a situation has been contemplated where a dispute exists about the rate of rent or the amount of rent due. In that disputed situation the Controller has to determine the approximate amount which should be deposited by the tenant. The approximate determination is required as all the facts and evidence at that stage - cannot be available on record and therefore, a final determination of the dispute is not possible. Such determination can be made after hearing the parties and under subsection (8) the rent deposited shall subject to the final determination of rent as payable by the tenant be paid to the landlord. In cases of dispute about the arrears of rent the Controller has to specify the approximate amount in clear terms to enable the tenant to deposit the same. If the Controller has passed any order which does not determine the amount approximately and is vague leaving the calculation to the parties or any other person then it will hot be an order strictly in section 13 (6), compliance with the provisions of The Controller in his order has stated that the tenancy and rate of rent i. e, Rs 50 per month are admitted. He goes on further to state that the respondents have claimed rent from the month of October, 1975 onwards and the appellant has not denied the period of arrears of rent but he stated that he has been regularly depositing the rent in Misc. Rent case. This observation does not seem to be correct as from a perusal of the pleadings and the statement of account filed by the parties it is clear that the appellant from the very beginninghas denied that the rent for the month of October and Novem--ber, was not paid. His plea has been that the amount has been paid to the respondents but as they refused to issue receipts and threatened be started deposit--ing rent in Court and by way of abundant caution even the rent for the month of October and November, 1975 was deposited. The appellant had in clear terms raised dispute about the arrear of rent which was claimed by the respondents. The learned Controller completely ignored this aspect of the case. The Controller, therefore, exercised his power under the earlier part of section 13 (6). However, further in the second paragraph of the order the Controller while stating that the arrears came to Rs. 1,150 did not direct the appellant to pay all the rent due. Instead of specifying the amount to be deposited he allowed deduction by the appellant of the amount which was deposited by him in Court. This direction of ascertaining the amours deposited in the Misc. Case and deducting the same from the amount held to be due was a departure from the provisions of section 13 (6). The order of the Controller neither directed all the rent due to be deposited nor approximately determined such amount as required by section 13 (6). In effect the calculation and determination of the amount of the rent due was left to the appellant.
14. The provisions of subsection (6) of section 13 of Urban Rent Restriction Ordinance, 1959 are penal in nature. Non-compliance of the order passed under section 13 (6) entails penalty by way of summary ejectment. In these circumstances it is well-settled that the order passed under this provision should be in strict compliance with the provisions of section 13 (6). Any deviation or departure from the provision of section 13 (6) will disentitle the landlord from seeking ejectment for its non-compliance. No penalty can be imposed on a person for non-compliance of an order which has not been passed in accordance with the provision of law. The learned counsel for the appellant has relied upon the case of Syed Ehsan Ali v. Jafar Ali and others PLD 1964 Kar.
15. 418where a Division Bench while considering the provisions of section 10 (6) of Karachi Rent Restriction Act which was similar to section 13 (6) of Urban Rent restriction Ordinance, observed as follows :- Such provision of law being of a penal nature must be strictly followed. If orders in respect of the arrears or future rent are not passed in strict conformity with its provision the tenant is not liable to be evicted for not complying with a defective order."
16. This judgment was followed in PLD 1965 Kar. 367.
17. In view of the above discussion I find that the order passed by the learned Controller was not in strict conformity with the provisions of law, and therefore, for its non-compliance the appellant could not be ejected. The appeal is, therefore, allowed and the case is remanded back to the Controller to pass order for deposit of rent according to law.
18. There will be no order as to costs. '