SYED ARSHAD ALI, J.---Petitioners seek the constitutional jurisdiction of this court with the following prayer:-- "On acceptance of the instant Writ Petition, the impugned judgments, orders and decrees passed by both the learned respondents Nos. 2 and 3 may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, without lawful authority, hence be struck down and the case file be remanded to the learned trial Court/respondent No, 2 to decide the same on merits after recording complete evidence or any other writ, order or relief as this Honourable Court deems fit and appropriate inthe circumstances of the case, may also be issued/passed."
Brief but relevant facts of the instant case are that respondent No,1 Khawaja Zahoor Iqbal being landlord of the suit shop filed an application for ejectment of petitioner from the suit shop and recovery of Rs,3,15,060/- rent from July, 2011 to November, 2015. The grounds agitated in the ejectment petition were default in payment of rent by the tenant and personal need of respondent No,
1. It is also on the record that earlier the present petitioner filed an application before Rent Controller for allowing him to deposit rent in the Court as the landlord had then refused to receive the rent from him. The said petition was disposed of with the mutual consent of the parties through order dated 13.2.2010, whereby they had agreed that the present petitioner will pay rent on or before 5th day of each month.
3. On being summoned in the present case, the petitioner on. 08.2.2016 filed power of attorney and requested time for submission of reply, hence, the case was adjourned to 15.2.2016. On 15.2.2016 present petitioner again requested time for submission of reply, which was granted by learned Rent Controller and the case was adjourned to 22.2.2016. On 22.2.2016 the case was adjourned on Note Reader to 24.2.2016. On 24.2.2016, the present petitioner again requested time for submission of written reply and the learned Rent Controller was pleased to grant the same with a notice under Order VIII, Rule 10, C.P.C. It was on 03.03.2016 when the present petitioner submitted his written reply and the case was fixed for arguments on the issue of deposit of rent in terms of section 13 subsection (6) of the Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 "Ordinance". On 30.3.2016 the learned Rent Controller was pleased to pass an order for deposit of rent of the month of February and March, 2016 and it was further directed that the present petitioner to deposit monthly rent at the rate of Rs,6250/- before 15th of each month. In the meanwhile statements of PW-1 and PW-2 were recorded. During cross-examination the present petitioner requested for requisitioning of certain record in order to controvert the official witnesses with the same. However, the request of the present petitioner was turned down. It appears from the record that the said order was challenged before this Court. However, this Court did not order for suspension of proceedings. However, due to reluctance of the present petitioner to cross-examine the witnesses, his defence was struck off. After recording, evidence of the respondent No,1, the learned trial Court vide judgment dated 05.5.2017 was pleased to accept application of landlord for ejectment of the present petitioner on the ground of default and personal need and petitioner was directed to deposit rent at increased rate from 01.7.2013 along with 10 % simple interest. The said judgment of learned Rent Controller was challenged before learned 'Appellate Court, who vide judgment dated 31.10.2017 dismissed the said appeal, hence, the present writ petition.
4. Arguments of learned counsel for the parties were heard and available record perused with their valuable assistance.
5. Perusal of record would reveal that Muhammad Farooq, Civil Nazir of the Court of Senior Civil Judge, Mansehra appeared before the learned trial Court as PW-1 and produced Goshawara of rent paid/deposited in the Court by the present petitioner as Ex:PW/1 and Ex:PW1/2. According to Ex:PW1/1 the present petitioner has deposited rent from July, August, 2011 on 09 .9 . 2011, September, 2011 on 12.10.2011,October, November, December, 2011, January, 2012 on 17.12.2011, February, March, April, 2012 on 05.4.2012, May, June, July, 2012 on 29.6.2012, August, September, October, 2012 on 20.9.2012, November, December, 2012, January, 2013 on 24.12.2012, February, March, April, May, June, July, 2013 on 14.03.2013, August, September, October, 2013 on 07.9.2013, November, December, 2013 on 09 .12.2013 , January , February, 2014 on 12.2.2014, March, April, 2014 on 14.4.2014, May, June, 2014 12.6.2014, July, August, 2014 on 11.3.2014, September, October, 2014 on 10.10.2014, November, December, 2014 on 11.12.2014, January, 2015 on 11.2.2015, February, March, 2015 on 04.3.2015, April, May, 2015 on 07.5.2015, June, July, 2015 on 13.7.2015, August, September, 2015 on 14.7.2015, October, November, 2015 on 12.11.2015, December, 2015 and January, 2016 on 15.2.2016. Therefore, the petitioner did not comply with the order passed by the A learned Rent Controller on his application for deposit of rent on 5th of each month.
6. The perusal of Ex:PW1/1 and Ex:PW1/2 clearly shows that the petitioner has failed to deposit rent.
Similarly, after institution of ejectment petition by respondent No,1, the petitioner was further directed to deposit rent Rs,6250/- before 15th of each vide order dated 30.3.2016. According to the afore said document Ex:PW1/1 the present petitioner had deposited rent from February to April, 2016 on 20.4.2016 which is beyond the date fixed by the Court i,e, 15th of each month. Although no record relating to the payment of rent for the month of November, 2016 and August, 2016 has placed on record. However, the learned Rent Controller in his judgment has stated that the present petitioner remained defaulter of rent for the said months. Thus the petitioner has not only defaulted in payment of rent before filing of ejectment petition in violation of order of the Court but he has also defaulted in payment of rent after order of the Court passed under section 13(6) of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance. Strict compliance of section 13 is mandatory under section 13(6) of Khyber Pakhtunkhwa urban Rent Restriction Ordinance, which reads as under:-- "13. Eviction of tenant.---(1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section [or as the case may be, section 13-A.] (2).....................
(3)...........................................................
(4)...........................
(6) In proceedings under this section on the first date of hearing or as soon as possible after that date 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, 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 dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put in to possession of the property without taking further proceedings in the case.
[The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.] (7)...
(8)..............................
7. Indeed under the aforesaid provisions the delay of single day in deposit of rent, without any explanation would be sufficient to striking off the defence of the tenant. In the case of Muhammad Jan v. Khadim Hussain (1973 SCM R 243), the deposit of rent on the day following the last date with a plea that the default was due to the closure of banking hours on last date, was not condoned and the order of striking defence of the tenant was upheld. In case of Ghulam Ahmad Pirzada v.
Additional District Judge, Lahore and 2 others (1982 SCM R 616), the plea of the tenant that the delay of only day in each of few months due to misunderstanding on the part of the petitioner, who thought that he was required to deposit the rent on the 15th of each month was not accepted and the order of striking of defence was upheld. Similarly, in case of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCM R 580), it was held that the Rent Controller, in case of default in deposit of rent beyond the due date, shall strike the defence of the tenant and order his ejectment without taking any further proceedings in the case. In another case titled Fazal-ur-Rehman v. Mst.
Sarwari Begum and others (1986 SCM R 1156), the delay of one day in deposit of the rent was not condoned and it was observed that the Rent Controller was competent to strike of the defence of the tenant as he himself took the risk of depositing the rent on the last date and the consequences thereof should also be borne by him. In this regard I am further fortified by the judgment of apex Court rendered in the case titled Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCM R 1705), Muhammad Yousaf v. Muhammad Bashir and others (1990 SCM R 557) and Muhammad Amin v. Ghulam Nabi and 2 others (PLD 1990 SC 1201).
Now moving to the issue of striking the defence of petitioner to cross-examine the witnesses of landlord I note that the present petitioner was provided absolute opportunity to cross-examine the witnesses of landlord but he intentionally opted not to examine them on the plea that he had filed a writ petition before this Court against the interim order passed by the learned Rent Controller. For ready reference order dated 06.12.2016:-- "Order No,27 06.12.2016. Parties present.
Respondent side filed an application for suspension of proceeding till decision of Writ Petition No,1135-A/2016 pending before the august Peshawar High Court, Abbottabad Bench.
Along with application the attested copy of order sheet dated 02.12.2016.
Counsel for parties argued on the application. Learned .counsel_ for petitioner of Rent Petition referred to Order XLI, Rule 5, C.P.C. and 1998 SCMR 1067.
Record perused.
As per order sheet dated 02.12.2016 in Writ Petition No,1135-A/2016, pre-admission notice has been issued to respondent No,1, whereas, notice of interim relief is issued. As neither the proceedings have been suspended nor stay of proceedings order is issued in writpetition.Therefore, respondent side was directed to conduct cross-examination on the witnesses despite attendance failed to conduct cross-examination on PW-3 and PW-4. Hence, right to conduct cross- examination on the statement of PW-3 and PW-4 is closed.
File to come up for evidence of respondent side on dated 14.12.2016."
9. Thereafter on 17.12.2016, 07.1.2017 and 14.1.2017 the present petitioner was given opportunity to produce the evidence. However, he has failed to produce the evidence, therefore, his defence was struck off on 19.4.2017. Perusal of record clearly shows that the conduct of the petitioner remained contumacious and he has been delaying the matter on one or the other pretext.
Hence, striking of the defence of petitioner owing to his conduct has been rightly exercised by the learned Rent Controller.
10. Lastly reverting to the impugned judgment of the learned Rent Controller, whereby the learned trial Court has directed the present petitioner for payment of rent at the enhanced rate along with 10 percent simple interest appears to be beyond jurisdiction of Rent Controller. Section 13 Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 does not authorize the learned Rent Controller for passing final order/decree against tenant for the recovery of rent. It only authorizes section 13(6) Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 to direct the tenant to deposit arrears of rent and in case of default shall struck off his defence.
However, the learned Rent Controller has no jurisdiction to pass a decree for recovery of defaulted rent in that case remedy available to the landlord for the recovery of said rent is to file a suit before a Court of competent jurisdiction. In this regard reliance can be made on case Ch. Abdul Aziz' v..
M.K. Abbasi (PLD 1986 SC 33).
11. In view of the above, this petition is partially allowed and the impugned judgments of the learned lower Courts dated 11.10.2017, 05.5.2017 and 19.4.2017 is set aside to the extent of direction issued to the petitioner for payment of rent and remaining judgments of both the Courts below are hereby maintained.