1. ' The defence of the appellant has been struck off for non-compliance of the order of the Rent Controller and the default has been held to be deliberate and wilful both by the Rent Controller as well as by the first appellate Court. The learned counsel for the appellant contends that the order of the Rent Controller dated 19-1-1970, directing the appellant to deposit rent at the rate of Rs, 40 per month in Court was not a valid order and, therefore, its non-compliance could not result in the striking off the defence of the appellant in the case. It is further contended by the learned counsel that the Rent Controller did not allow opportunity to appellant to explain the default alleged against him. In order to deal with the above contentions of the learned counsel it will be necessary to state here some of the relevant facts of the case.
2. The property in occupation of the appellant was transferred to the respondent under the provisions of D. P. (Comp. & Rehb.) Act, 1958 on 31-7-1960. After transfer of the property the required notice under section 30 of the D. P. Act was served on the appellant on 7-8-1960. It appears that after service of notice under section 30 of the D. P. Act the parties entered into an agreement on 1- 9-1960, whereunder the appellant agreed to pay to the respondent a sum of Rs, 22.50 as rent of the premises. While the appellant was paying rent at the rate of Rs, 22.50 per month, the assessment of the property was revised by the Municipality of the area and rent was assessed at the rate of Rs, 40 per month. In 1966 the respondent instituted rent case against the appellant alleging that the appellant is paying Rs, 22.50 p.m. Whereas the rent according to latest assessment is Rs, 40 p.m. It was also alleged that the appellant had damaged the property in his occupation. On 23-9-1967 the Rent Controller passed the tentative rent order in the case directing the appellant to deposit the rent in Court during pendency of case at the rate of Rs, 22.50 per month. The main case was thereafter dismissed on merit by the Rent Controller but on appeal the first appellate Court set aside the order of rent controller, on the ground that the evidence was recorded in the case by way of affidavits which was contrary to law and accordingly the case was sent back to the Rent Controller for decision afresh according to law. It appears that between the period the ejectment application was dismissed by the Controller and the appeal was accepted by the first appellate Court the appellant made no deposit of rent in Court, therefore, after remand of the case the respondent moved an application before Controller on 2-5-1969, praying that the defence of appellant be struck off for noncompliance of the order of Rent Controller, passed under section 13(6) of the Ordinance. The application for stricking off defence was resisted by the appellant on the ground that the tentative rent order stood merged in the final order on dismissal of rent application on merit and, therefore, the question of non-compliance of tentative order did not arise in these circumstances. The Rent Controller agreed with the appellant and dismissed the application for striking off his defence in the case. However, at the same time the Controller passed a fresh order for deposit of rent in Court on 19th January, 1970 but this time the appellant was directed to deposit monthly rent at the rate of Rs, 40j p.m. Which was the latest assessment of the property made by the Municipality of the area. The appellant successfully challenged the tentative rent order passed by the Rent Controller on 19-1-1970 in an appeal and the first appellate Court reduced the rate of rent from Rs, 40 to Rs, 22:50, but the order of first appellate authority was set aside by this Court in a second appeal, on the ground that no appeal was maintainable against the tentative rent order. As a consequence of setting aside of the order of first appellate authority by this Court the older passed by Rent Controller, directing the appellant to deposit rent at the rate of Rs, 40 stood revived. The admitted position in the case is that in spite of above order of this Court which was passed on 8-12-1975 the appellant continued to deposit monthly rent in Court at the rate of Rs, 22.50 up to May, 1976 and for the period from June, 1976 to June, 1977 no rent at all was deposited by him until 30-7-1977. As the appellant had committed default in payment of rent at the rate of Rs, 40 per month up to May, 1976 and no rent at all was deposited between the period from June, 1976 to June, 1977, the respondent filed application for striking off the defence of appellant on 24-7-1976. Copy of this application was served on the appellant but in spite of service of this application neither any attempt was made by the appellant to deposit the rent in Court nor any objection was filed against the application. The Rent Controller struck off the defence of the appellant on 27th October, 1976. Against the order striking off the defence, the appellant filed appeal before the first appellate authority and it was during the pendency of this appeal that be deposited a sum of Rs, 3,022.50 on 30th July, 1977 when the respondent moved an application before the first appellate authority under section 13 (6) seeking direction against the appellant for deposit of arrears and current rent in Court.
2. ' From the above narration of facts it is quite clear that there was non-compliance of the tentative rent order of Controller up to May, 1976 inasmuch as the appellant deposited the monthly rent in Court at the rate of Rs, 22.50 whereas under the aforesaid order he was required to deposit monthly rent at the rate of Rs, 40 per month and from June, 1976 to June, 1977, no rent at all was deposited in Court. Mr. G. M. Qureshi, the learned counsel for the appellant contends that proper opportunity was not given to appellant by the Rent Controller to explain the default alleged against him in the application under section 13 (6) of the Ordinance filed by the respondent. The next contention of the learned counsel is that while striking off the defence of appellant the Courts below failed to take into consideration that the order directing deposit of rent at the rate of Rs, 40 per month was not a legal and valid order and, therefore, its non-compliance could not result in striking off the defence of the appellant in the case. In so far the first contention of the learned counsel is concerned, it will suffice to say that on 14th July, 1976 the appellant himself made an application before the Rent Controller alleging that the clerk of the Court was not accepting deposit of rent at the rate of Rs, 22.50, although on account of the order of this Court passed on 8- 12-1975 in the II Appeal of respondent the appellant was required to deposit rent at the rate of Rs, 40 p.m. Mr. Qureshi, contends that perhaps the appellant was not aware of the order passed by this Court in the second appeal and, therefore, deposit of rent at the rate of Rs, 40 was not made. This contention has no merit. The appellant was represented before this Court in the second appeal through a counsel and, therefore, he could not plead ignorance of the order dated 8-12-1975. Be that as it may, the fact remains that in spite of filing of application by the respondent on 24-7-1976 for striking off the defence of appellant in the case the appellant made no deposit of rent even the rent at the old rate of Rs, 22.50 until 30th July, 1977. The explanation offered by Mr. Qureshi that the appellant made efforts to deposit rent before the Rent Controller in July, 1976 which was not accepted, has no merit. Firstly according to appellant he made attempt in July, 1976 to deposit rent in Court at the rate of Rs, 22.50 which cannot be treated as compliance of the order of Rent Controller as he was directed to deposit rent at the rate of Rs, 40 per month and, secondly, the R. & P. Of the case was remitted by this Court to the Court of Rent Controller after disposal of second appeal in January, 1976 and therefore it is quite unbelievable that in spite of receipt of R & P the office of the Rent Controller refused to accept rent offered by appellant.
4. The next contention of the learned counsel for the appellant is that the order of the Rent Controller dated 19-1-1970 was not a valid order and, therefore, its non-compliance could not result in striking off the defence of the appellant in the case. The learned counsel for the respondent on the other hand contends that the appellant having failed to comply with the order of deposit of tentative rent cannot question its validity. The contention of the learned counsel for the respondent has no force. A tenant A whose defence has been struck off on account of non-compliance of the order of deposit of rent is entitled to show that the order was invalid and, therefore, its non- compliance cannot result in his eviction. In the case of Ikramuddin Syed v. Syed Muhammad Ali it was held by a learned Single Judge of this Court (as he then was) that a tenant while contesting an application under section 13(6) of the Ordinance is entitled to show that the order passed by the Rent Controller for deposit of rent was defective and factually incorrect and if he succeeds in that his defence cannot be struck off. I am in respectful agreement with the view of learned Single Judge expressed in the above case. I will therefore, now examine the contention of Mr. Qureshi, that the second rent order of the Rent Controller for deposit of rent dated 19-1-1970 was not a valid order. Mr. Qureshi, firstly contended that the Rent Controller had no jurisdiction to pass a second rent order in the case as the First order for deposit of rent dated 23-9-1977 stood revived as a result of remand of the case by the first appellate authority to the Rent Controller. The effect of remand order dated 9-1-1969 according to learned counsel was that the proceedings before the Rent Controller were restored to the same position in which they were immediately before the dismissal of rent application. The contention though prima facie appears to be attractive cannot be allowed to be raised by the appellant in the circumstances of the case. It is an admitted position that after remand of the case by the first appellate authority the appellant was in clean default of the rent order dated 23-9-1967 and in order to avoid the con sequences of these defaults he in reply to the application of respondent under section 13(6) of the Ordinance took the plea that the rent order stood merged in the final order and, therefore, the order dated 23-9-196 was no more in existence and accordingly at his instance a fresh order for deposit of rent was passed on 19-1-1970. The appellant himself being responsible for the passing of the second order dated 19-1-1970 cannot now he heard to say that the same could not be passed by the Rent Controller, competently. The next ground of attack on the validity of the order dated 19-1-1970 is that the admitted rent of the premises being Rs, 22.50, the Rent Controller could not pass the order fixing the tentative rent at the rate of Rs, 40 p.m. On the basis of latest assessment. It is contended that in view of the decision in the case of Muhammad Moosa v. Dilshad Muhammad, the "latest assessm ent" of property1 2 contemplated under the unamended proviso to section 30 of the D. P. Act, was the assessment made by a Municipality or a local authority in anticipation of the transfer of property under the D. P.
3. Act, or the assessm ent which was prevailing immediately before the transfer of such property. The view expressed in the above-cited case though supports the contention of the learned counsel but in view of the subsequent pronouncement of Supreme Court in the cases of Ahmed Khan v. S2kina Bibi, Ch. Muhammad Saeed v. Abdul Majid and Mistri Ahmed Din v. Muhammad Munir, the same cannot be treated as good law. In Ahmed Khan's case the Supreme Court while refusing leave to appeal repelled the contention of the petitioner with the following observations :- "The learned counsel has lastly contended that in section 30 of the Act the words "latest assessm ents" mean the assessm ents prevailing at the time of the transfer of the property or when the first notice was sent by the landlord to the tenant. This contention also cannot be accepted.
4. The section clearly indicates that a transferee is entitled to charge rent on the basis of the latest assessm ent carried out by the Municipality or local authority."
5. ' The Supreme Court referred Ahmed Khan's case with approval in Ch. Muhammad Saeed's case and in Mistri Ahmed Din's case. The following observation was made by the Supreme Court in Ch. Muhammad Saeed's case while repelling the contention of the petitioner :- "It was also urged that the Rent Controller could have ordered the deposit of the arrears of rent on the basis assessm ent current at the time of the transfer of the shop or the date of service of statutory notice under section 30 and not on the basis of assessment in force at the time of making the order for the deposit of rent. This plea is also untenable in view of this Court's decision in Ahmed Khan and another v. Mst. Sakina Bibi."
6. ' In the case of Mistri Ahmed Din, the relevant observation of Supreme Court appears at page 75 in the following terms : "The first proviso to subsection of section 30 expressly makes it lawful for the transferee of the property to charge rent on the basis of the "latest assessment carried out by a Municipality or a local authority". The provisions of the section are not hedged by any further consideration that the increase in rent should also have the approval of the Rent Controller before it becomes chargeable by the landlord. In reaching that conclusion, the learned Single Judge relied upon a judgment of this Court in Ahmed Khan v. Sakina Bibi. The view taken by the learned Single Judge is unexceptionable."
7. ' In another case reported as Faiz Baksh v. Muhammad Baksh (1), a petition for leave to appeal was refused by the Supreme Court with the following observations which appears at page 278 of the report :- "On the 30th of July, 1970 the respondent landlord was allowed the permission to modify his claim with regard to the rate of rent on the basis of the latest assessment for the property (Exh. P-8). This amendment was allowed by the Rent Controller in exercise of the discretion vested in him under law and there could be no objection raised against it before us at this stage. The landlord was entitled in law to change the rent at the rate fixed in the latest assessment for the property. Likewise there was no bar in the way of the Rent Controller in fixing the tentative rent under section 13 (6) of the Ordinance at the revised rate in accordance with the latest assessment."
8. ' In the last referred case of Faiz Baksh, the facts were more or less similar to the present case and the Rent Controller during pendency of rent case had allowed amendment in the ejectment application to the landlord so as to include the claim of rent at the rate of Rs, 40 per month as against Rs, 10 per month which was originally claimed in the application. This amendment was allowed by the Rent Controller on the basis of latest assessment of the property. The validity of rent order passed by the Rent Controller on the basis of revised assessment was challenged before the Supreme Court in the above case but the contention was repelled and the observation quoted above were made. In view of the above legal position it cannot be argued that the order of Rent3 4 5 6 Controller dated 19-1-1970 was not a valid order. The learned counsel for the appellant made an attempt to distinguish the above referred Supreme Court cases by contending that in 1963 proviso
(a) to section 30 of the D. P. Act was amended and under the amended proviso, the assessment made by the Municipality or the local authority for other properties in the locality generally became relevant for the purposes of "latest assessment" which was not considered in the above cases decided by the Supreme Court. It is true that no specific reference is made by the Supreme Court in the above referred cases to the languge of amended proviso (a) to section 30 of the D. P. Act, but for that reason neither these decision can be distinguished nor they loose their effect as binding decisions. All the above referred cases were decided by the Supreme Court much after the date of amendment of proviso (a) to section 30 of D. P. Act and, therefore, it cannot be said that the Supreme Court while deciding these cases did not take note of the change in the language of the said proviso. I, therefore, reject the contentions of the appellant and dismiss this appeal but will make no order as to costs in the circumstances of the case. The appellant is allowed four months time to vacate the premises. PLD 1978 Kar. 145 PLD 1968 Lah. 252 1969 SCMR 435 1975 SCMR 41 1975 SCMR. 74 1981 SC MR 713