RASAAL HASAN SYED, J.-- The appellants in this appeal have challenged order dated 02.5.2018 of the learned Addl. Rent Controller , Wah Cantt., whereby the defence of the appellants was struck off and forthwith eviction was ordered.
2. Respondent filed a petition under section 17 of The Cantonments Rent Restriction Act, 1963 (the "Act") for the eviction of the appellants from a shop on the ground of default in payment of rent, subletting and bona fide need.
Appellants filed reply to the petition and controverted the assertion made therein. In terms of section 17(8) of the Act, the learned Addl. Rent Controller vide order dated 29.1.2014 directed the appellants to deposit arrears of rent from June 2012 to December 2013 (19 months) by 12.2.2014 amounting to Rs.61,750/- and also to deposit future monthly rent from January , 2014 before the 5th of every next month @ Rs.3,900/- per month. The application under section 17(9) of the Act was filed by the respondent claiming that the appellants were directed to pay monthly rent of the rented shop before the 5th of each month and that they had failed to deposit the rent due and were liable to forthwith eviction. Appellants filed reply to the application and controverted the allegation of default in complying with order dated 29.1.2014.
3. The learned Addl. Rent Controller , allowed the application of the respondent vide order dated 02.5.2018 observing that the appellants/tenants violated the order dated 29.1.2014; had deposited rent on 05.5.2014 , 05.
6.2014, 05.11.2014, 05.1.2015, 05.3.201 5, 05.8.2015, 05.10.2015, 05.8.2016, 05.9.2016, 05.12.2016, 05.1.2017, 06.2. 2017, 05.6.2017 and 05.9.2017; and directed forthwith eviction of the appellants.
4. Learned counsel for the appellants submitted that the learned Addl. Rent Controller failed to pass a speaking- order and that the order was passed without considering the deposits made by the appellants and also without pointing out as to how the deposits so made could be deemed to be a default in compliance with the order dated 29.1.2014 so as to warrant forthwith eviction. Learned counsel for the respondent on the contrary supported the order and submitted that wilful default due to non-compliance of the order was established, in result, the learned Addl. Rent Controller rightly passed the order of eviction.
5. Perusal of the record shows that on 29.1.2014 the learned Addl. Rent Controller directed the appellants/tenants to deposit future monthly rent before the 5th of the month. Appellants placed on record a certificate regarding deposit of rent which contained details of the rent deposited by them. Due consideration thereof reveals that the entries pertain to deposit of rent from July 2013 till April 2018, amounts deposited as also the months for which the rent was deposited. It appears that rent was deposited for every month. Deposit dated 05.5.2014 was for May 2014, deposit dated 05.6.2014 was for June 2014, deposit dated 05.11.2014 was for November 2014, deposit dated 05.1.2015 was for January 2015, deposit dated 05.3.2015 was for March 2015, deposit dated 05.8.2015 was for August 2015, deposit dated 05.10.2015 was for October 2015, deposit dated 05.8.2016 was for August 2016, deposit dated 05.9.2016 was for September 2016, deposit dated 05.12.2016 was for December 2016, deposit dated 05.1.2017 was for January 2017, deposit dated 05.6.2017 was for June 2017 and deposit dated 05.9.2017 was for September 2017. All these deposits were made in advance though the deposits could have been made before the 5th of the succeeding month.
6. The Addl. Rent Controller , without considering the details pertaining to rent deposited, proceeded to pass a vague and non-speaking order and directed forthwith eviction on the assumption that there was a default in the compliance of the order of deposit passed under section 17(8) of the Act. Even the application of respondent under section 17(9) thereof was vague, which did not specify the alleged late deposit on the basis of which alleged non- compliance of order was claimed. It was only asserted in the application under section 17(9) of the Act that the order of deposit of rent had not been complied with, without pointing out as to which month the alleged default was claimed or non-compliance of the order was made. Similarly , the Addl. Rent Controller also did not consider the defence of tenant to the effect that he had made advance deposits of every month though he was required to deposit monthly rent before 5th day of each succeeding month. The learned Addl. Rent Controller was duty bound to first consider the mandate of section 17(8) of the Act and also his own order for deposit of future rent and, thereafter , determine as to whether any late payment or short payment was made, and if so, for which month or period.
7. Provision of section 17(8) of the Act contemplates that the Rent Controller shall direct the tenant to deposit all rent due from him before a specified date and also to deposit regularly till final decision of the case, before the 5th of each month, the monthly rent which subsequently becomes due. The words "subsequently becomes due" being meaningful, as the rent become due on expiry of the month for which it is payable which could be legally deposited before the 5th of the next month. In "Mehboob Illahi v. Saqib Mehmood Riaz and others " (1990 SCMR 1688 ) it was observed that the rent for the specific month could be paid before the 15th of the next month. This was the case under The West Pakistan Urban Rent Restrictio n Ordinance, 1959 wherein under section 13(6) the learned Rent Controller was required to direct deposit of arrears of rent and also the future monthly rent before the 15th of each month and incorporating the same, it was observed that the deposit could be made for specific month before the 15th of next month and if the rent was tendered through money order for a specific month and for the following month even on the 11th of the next month such tender amounted to deposit in performance of the obligation of the tenant under section 13(6) of the Ordinance ibid. and tenant could not be adjudged as defaulter . In "Muhammad Naeem Abbasi v. Mst. Muhammad Jan" (2008 MLD 1659 ) it was observed that the tenant was required to pay the rent due in terms of the direction of the court not in advance and that in the matter of deposit of rent in court, the deposit of "rent due" would mean that the rent would become due on, the expiry of the month and could be paid before the 15th of the succeeding month. In this backdrop it was observed that the deposit of rent for October 2007 could be made before 15th day of Nove mber 2007 and that the order of the learned Rent Controller assuming alleged default would be against the express provisions of the law. The case referred supra also related to the ejectment petition filed under Ordinance ibid. where the Rent Controller was required to direct deposit of all future rent before 15th of each calendar month. In the instant case filed under the Act, the Rent Controller was required to direct to deposit all future rent before the 5th of each month. The rent of a month became due on the expiry of month and, therefore, deposit was made before the 5th of the next month; would legally be a proper deposit.
8. The learned Addl. Rent Controller while passing impugned order did not consider that the rent actually deposited by the appellants was in advance for each month and, therefore, the deposit on 5th of each month in advance could not possibly entail the consequence of wilful default unless it could be demonstrated that the rent deposited on the 5th of each calendar month was with regard to the rent of the previous month. The order of the learned Rent Controller does not show that this aspect of the matter was ever examined or that the plea of default in compliance of the order of the learned Rent Controlle r was ever raised or considered in light of the provisions of law. The order being perfunctory , vague and against the provisions of section 17(9) of the Act is not legally sustainable.
9. For the reasons hereinabove, the appeal is allowed ; the impugned order is set aside; in result the ejectment petition shall be deemed to be pending before learned Addl. Rent Controller , Wah Cantt. who shall decide the same afresh in accordance with law by giving fair opportunity of evidence and hearing to both sides and, thereafter , pass a speaking-order . Since this is an old matter, the case shall be finally decided within two months from the receipt of copy of this Order . Parties shall appear before the learned Rent Controller , Wah Cantt. on 08.3.2021 .