' This constitutional petition calls in question the order dated 29.3-1980 of the learned Additional District Judge, Lahore, whereby he rejected the appeal of the petitioner/tenant against the order dated 15-12-1979, striking off the defence and passing the order of eviction under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance).
2. The facts relevant for the disposal of this petition, as per record, are that respondent No, 3 filed an application for ejectment under section 13 of the Ordinance against the petitioner/tenant on 29-1- 1979 in respect of a rented land measuring 19 Marlas and 119 square feet situated in Ghari Shab Lahore, on the ground of default. It was averred in the application that by means of a deed of lease dated 16-3-1976, Mst. Sakina Begum, mother of respondent No, 3, landlady leased out the land, in dispute, to the present petitioner/tenant on a monthly rent of Rs, 1,000. The aforesaid Mst. Sakina Begum died on 9-4-1976 and the present petitioner/tenant became tenant under her heirs. The heirs of Mst. Sakina Begum sold the land, in dispute, to respondent No, 3, landlady by a sale-deed registered on 29-8-1978. In consequence, respondent No, 3/landlady served a notice dated 1-11- 1978, under section I3-A of the Ordinance, to the petitioner/tenant inforining therein about the factum of transfer and demanded the payment of rent at the rate of Rs, 1,000 per month with effect from 1st August, 1978. Instructions were also issued that the rent be deposited in the Habib Bank Limited, New Garden Town Branch, Lahore, in Saving Account No, 2344. The petitioner/tenant gave a reply dated 26th November, 1978 to the said notice undertaking therein that the rent commencing from 1-11-1978 shall be remitted to the Bank as desired by the landlady. The liability to pay the rent for the period of 1-8-1978 to 31-10-1978 was, however, denied on the ground that prior to the receipt of the notice the rent for the aforesaid period had already been deposited in the Savings Bank Account No, 1661 of late Mst. Sakina Begum. The petitioner/tenant contested the ejectment application and reiterated his stand earlier taken in reply to the notice. The petitioner/tenant also took up the plea that on receipt of notice under section 13-A, he had been depositing the monthly rent in the Bank Account of respondent No, 3/landlady regularly with effect from November, 1978, onwards.
3. In view of the pleadings of the parties, the learned Rent Controller, passed the following order dated 9-4-1979, for the payment of tentative rent under section 13(6) of the Ordinance :-- {{URDU TEXT}} ' Thereafter, after framing of issues, the case was adjourned from time to time, evidence of the parties was recorded and the case was fixed for final arguments for 2nd December, 1979, on which date respondent No, 3/landlady moved an application for striking off the defence of the petitioner/tenant for not complying with the direction made to him under section 13(6) of the Ordinance. It was averred in this application that the petitioner/tenant had not deposited the rent in Court for the months of August, 1978,. To April, 1979. It was further stated that the challan produced by the petitioner/tenant would show that the rent for the month of May, 1979, onward alone had been deposited. This application was resisted by the petitioner, and it was stated that the application suffered from aches, in that, the petitioner/tenant slept over the matter for over nine months. It was further stated that in terms of the order of the learned Rent Controller passed under section 13(6) of the Ordinance, if the petitioner/tenant had already made deposits in the bank in respect of the arrears of rent pertaining to the period mentioned in the said order that amount could be deducted. It was further stated that the petitioner admittedly made deposits in the bank account and, therefore, deducted that amount while depositing the arrears of rent. It was also stated that the petitioner/tenant had faithfully complied with the order of the learned Rent Controller and there was no willful default. The learned Rent Controller accepted the application of the respondent/landlady by order dated 15-12-1979 and struck off the defence of the petitioner/tenant.
4. The learned. Appellate Authority by order dated 29-3-1980, affirmed the order of the learned Rent Controller. The petitioner/tenant challenged the aforesaid orders by means of S. A. No, 245/80, which was admitted to a regular hearing and later abated under the Punjab Urban Rent Restriction (Amendment) Ordinance (VII of 1980).
5. Learned counsel for the petitioner/tenant contends that the impugned orders have been passed while ignoring the material documentary evidence on record, inasmuch as, the petitioner/tenant had deposited a total amount of Rs, 18,000 in favour of respondent No, 3, landlady, out of which Rs, 6,000 were deposited in her bank account as instructed by her 'in her notice dated 1-11-1978 under section 13-A of the Ordinance and Rs, 12,000 were deposited in the Treasury. It is submitted that although the learned Rent Controller had not specified the date, by which the tentative rent pertaining to the arrears was to be deposited yet the petitioner deposited the total amount of Rs, 18,000 before the next day of hearing i,e, 12-5-1979 and, therefore, this amount of rent which was not due but had been deposited by the petitioner/tenant could be adjusted towards the arrears in the light of the ratio laid down, in Salah-ud-Din Butt v. Khan Muhammad Tariq (1). It was contended that the surplus rent was available even for the forthcoming month of January, 1980, there was therefore, no violation and contumacious non-compliance of the order of tentative rent passed by the learned Rent Controller. Learned counsel next relied upon Mst. Asifa Jaffar v. Muhammad Rafiq (2), to contend that defence of the tenant cannot be struck off for non-compliance of an illegal order of the learned Rent Controller passed under section 13(6) of the Ordinance. Learned counsel very vehemently argued that the order of the learned Rent Controller was vague and, therefore, illegal, in that, no date was specified for depositing the arrears of rent.
6. Kh. Muhammad Tufail, learned counsel for respondent No, 3, landlady vehemently argued that the defence of the petitioner/tenant had been {{FOOT NOTE}}
(1) PLD 1981 Lab. 132 (2) 1982 CLC 2344 {{FOOT NOTE}} ' rightly struck off by the learned Rent Controller after hearing the parties and considering their contentions. Likewise, the Appellate Authority after re-appraisal of the entire evidence on record and examining the pleas raised by the parties dismissed the appeal in the lawful exercise of its jurisdiction which cannot be interfered with by means of a constitutional petition, even if the matter was decided wrongly or erroneously. Learned counsel next contended that the order for the payment of arrears of rent was passed on 9th April, 1979 by the learned Rent Controller and in terms thereof the arrears were to be deposited before the next date of hearing i,e, 12th May, 1979. In the instant case, it is submitted that the petitioner/tenant failed to comply with the order, inasmuch as, the first payment of Rs, 1,000 was credited in the Bank Account of the respondent on 22-4-1979 for the month of April, 1979 and a sum of Rs, 12,000 was deposited in the Treasury towards the rent for the months of May, 1979 to April, 1980. Learned counsel further argued that the payments made through cheque were violative of the order passed under section 13(6) of the Ordinance.
7. Learned counsel for the contesting respondent alse placed reliance on Muhammad v. Khadim Hussain (1), Ghulam Muhammad Khan Lundkhur v. Safdar Ali Kh. Ghulam Mustafa v. Mian Waqar Ahmad (3), Mst. Akhtar. Jahan Begum and others v. Muhammad Azam Khan (4), to contend that the consequence of non-compliance of order under section 13(6) of the Ordinance is the summary disposal of the case without taking any further proceedings ipso facto on the basis of such non- compliance by striking off the defence and passing the order of eviction. Learned counsel also laid emphasis on the following observation made in Kh. Ghulam Mustafa's case "Applying the same principle here too, the deposit of rent by the tenant in the names of large body of persons, namely, the heirs of Haji Abdur Rashid instead of the respondents who had been specifically accepted as his landlord as explained earlier, was deliberate and contumacious and the Courts below were justified in not endorsing the validity of such a deposit. The Ordinance, whereas it gives certain protections and privileges to tenants, also imposes certain obvious obligations on them which, it may be stated, is their bounden duty to strictly follow."
' Reliance was also placed on Mushtaq Hussain v. Muhammad Shafi (5) to contend that the compliance of direction under section 13(6) of the Orditiance is a condition precedent to examine the bona fides or the correctness of various defence pleas of tenant or to further proceed with their trial and adjudication. Reliance was also placed on S. I. H. Zaidi v. Shujat Usmani (6) to contend that the learned Rent Controller is empowered to strike off the defence of a tenant and order his eviction even having recorded his findings on the merits of the case.
8. I have given my anxious consideration to the submissions of the learned counsel for the parties and perused the documents on record and have also examined the cases cited at the Bar.
9. The crucial question involved in this case is whether any default had been made in complying with the order of the learned Rent Controller passed under section 13(6) of the Ordinance. The chart marked 'X' duly signed by the learned counsel for the petitioner and respondent No, 3, showing the {{FOOT NOTE}} Deposited in BankDate ofDate account ofissue ofof. Nature of payment chequepayment Rs.
Mst. Sakina Begum1,0004-9-1978Rent for the month previous landlady.of August, 1978.
Ditto1,0005-10-1978 Rent for the month ofSeptember, 1978.
Ditto1,0005-11-1978 Rent for the month of October, 1978.
Mst. Shabana Nasim 3,000 14-1-197922-1-1979Rent for the _ months AkbarFarooqi,ofNovember, presentlandladyDecemberand respondent No. 3.January, 1979.
Ditto1,00031-1-197922-3-1979Rent for the month of February, 1979.
Ditto1,00011-3-197926-3-1979 Rent for the month of March, 1979.
Ditto1,0005-4-197922-4-1979 Rent for the month of April, 1979.
This cheque was got encashed after 9-4-1979, i.e. date when order for deposit of arrears and future rent under section 13(6) of the Rent Restriction Ordinance, 1959, was made, although this cheque was issued before the said order was made.
Deposited in Treasury 12,000Rent for the months on 10-5-1979 beforeof May, 1979 to the next date ofApril, 1980, hearing i.e. 12.5-1979.whereas the de- fence was struck off on 15-12-1979. {{TABLE TEXT}}
10. Before examining the question whether the payment made by the petitioner was in conformity with the order dated 9-4-1979 of the learned Rent Controller, it is necessary to dispose of the objection of the learned counsel for the contesting respondent that the payments made through cheques and credited in the name of the landlady as well as the previous landlady was not a valid compliance of the order passed under section 13(6) of the Ordinance, inasmuch as, the petitioner/tenant was required to deposit the rent in terms of the order of the learned Rent Controller in the Court of Controller and not in the Bank Account of respondent/landlady and that the amount deposited in the Bank in the name of the previous landlady could not be adjusted towards the arrears. A somewhat similar question also arose for consideration in Sarfraz Khan v.
Muhammad Abdul Rauf (1) wherein it was held :- "If deposit is made in the Controller's office by cheque and payment on this cheque is received by the Controller, then the tenant cannot be deemed to be in default, unless the deposit of the cheque itself was made after the expiry of the date prescribed in the Controller's order. This, I would venture to say, would be a correct and sensible approach to the question of valid or invalid payments of rent and arrears to the landlord or to the Controller under section 13(6) of the aforesaid Ordinance."
' Reference may also be made to Sh. Magbool Ahmad v. Muhammad Akbar All (2) wherein the question arose whether tender of rent directly to the landlord instead of depositing with the Rent Controller would amount to compliance with the order under section 13(6) notwithstanding the fact the tender was of the due amount and before the specified date. The answer was that if the tender was made by the tenant to the landlord directly instead of making a deposit with the learned Rent Controller it may or may not be considered as valid depending upon the circumstances of each case. The relevant observation reads thus :- "The answer would depend upon the circumstances of each case. If for example, despite the order of the Rent Controller for deposit, without any justifiable excuse, the tender is made to the landlord with a hope to gain an advantage on refusal of the landlord, that might not be considered as compliance of the legal requirement. But in another case, instead of making a deposit with the Rent Controller, a bona fide deposit in a wrong forum might be considered as valid. See Sarfraz Khan v. Muhammad Abdul Raul: Similarly reliance on an earlier undisputed deposit with the landlord himself, instead of making fresh deposit, might be considered as a good plea against the very order of deposit under section 13(6). See Mian Muhammad Abdullah v. Sheikh Nawab Din. In yet another case, for example, notwithstanding their being an order of deposit with the Rent Controller the parties agree on arrangement of tender and its acceptance out of Court, it would be doubtful whether the landlord would be able, subsequently, to invoke section 13(6) for striking off the defence of the tenant. See Syed Masood Hussain and others v. Muhammad Saeed Khan and others. And if in a case the Rent Controller himself, instead of directing "deposit," orders for the "payment" as an alternative to the "deposit," the payment, instead of deposit, might not be considered as noncompliance with section 13(6). See Zahurul Hassan and Brothers v. Abdul Hussain and another.
' The above visualized examples, it is emphasised, would not operate as precedent for deciding similar questions when they again arise. The questions being complex, it is essential to keep in mind that each case would depend upon its own facts and circumstances."
' Reference may also be made to Messrs Peoples Steel Mills Ltd., Karachi v. Hafizuddin and 7 others
(3) wherein it was held that "presentation of cheque may be considered as valid payment in contractual liability but not in statutory liability as contemplated under section 13(6) of the Ordinance". It was further observed that if the tender made by the tenant by way of a {{FOOT NOTE}}
(1) PLD 1969 Kar. 176 (2) PLD 1978 Lah. 258
(3) PLD 1981 Kar. 739 {{FOOT NOTE}} ' cheese is accepted and the cheese is honored and no objection is raised then it is a valid tender.
'If the cheque is dishonored or objection is raised to such mode of payment then the tender will not be considered as valid and the tenant will be liable for default. In Messrs. Mahmood Ahmad & Sons v. M. A. Marker (1) the dictum laid down in PLD 1969 Kar. 176 was followed.
11. In the instant case, in terms of the direction made by the learned Rent Controller under section 13(6) of the Ordinance, the petitioner tenant was directed to deposit the rent from August, 1978 to March, 1979, in Court of the Controller but the amount which the petitioner/tenant had already deposited in the bank was to be deducted. It is true that no date was specified for depositing the arrears of rent but normally the Rent Controllers while passing order under section 13(6) of the Ordinance make an order for A depositing the arrears of rent before the next date of hearing and the deposit of future monthly rent before 15th of each succeeding month. In this case, the petitioner/tenant, deposited Rs, 12,000 on 10-5-1979, before the next date of hearing i,e, 12-5-1979 and took up the plea that the amount already deposited in the bank in respect of the arrears of rent pertaining to the disputed period could be deducted. The petitioner, therefore, cannot be permitted to plead that he was misled by the order of the learned Ren Controller for want of specification of time.
12. Be that as it may, the Courts below ignored the fact that apart from the amount deposited in the Bank Account of the previous landlady, the petitioner admittedly deposited Rs, 18,000 before the next date of hearing i,e, 12-5-1974, in favour of the respondent/landlady, out of which Rs, 6,000 were deposited in her Bank Account and Rs, 12,000 were deposited in the Treasury and this amount could be validly adjusted towards the arrears: The payment of Rs, 3,000 encashed on 22-1-1979 could be treated as payment for the months of August, September and October, 1978, Rs, 1,000 encashed on 22-3-1979 for November, 1978, Rs, 1,000 enchashed on 26-3-1979 for December, 1978, Rs, 1,000 encashed on 22-4-1979 for the month of January, 1974 and Rs, 12,000 deposited in the Treasury on 10-549 payment for the months of February, 1979 to January, 1980, whereas the defence was struck off on 15-12-1979. Furthermore, the respondent/landlady had accepted the payment which was made through cheques and duly credited a to her Bank Account without any objection, therefore, viewed from this angle as well, it could be considered a valid and legal tender, in the light of the ratio laid down in the precedents referred to in para. 10, which I respectfully follow.
In Muhammad Sharff and another v. Muhammad Afaal Sohail etc. (2) it was held that this Court in exercise of its constitutional jurisdiction can ascertain whether the learned District Judge acting as Appellate Authority had not flouted the provisions of the relevant Statute or has failed to follow the law relating thereto as laid down by the Superior Courts. It is, therefore, difficult to sustain the plea of the learned counsel for the respondent that the constitutional jurisdiction is completely ousted against a final order passed by the Appellate Authority under the Ordinance. In Rahim Shah v. The Chief Election Commissioner of Pakistan and another (3) Full Bench of the Supreme Court held :- "Cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. Are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the tribunal on this {{FOOT NOTE}}
(1) .PLD 1983 Quetta 36 (2) PLD 1981 SC 246
(3) PLD 1973 SC 24 {{FOOT NOTE}} ' ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted."
13. If the Rent Controller or the Appellate Authority were to be at liberty to exceed their jurisdiction without any check by the Superior Courts the rule of law would be at an end. The mere fact that an order passed by the Appellate Authority under the Ordinance is final and the right of second appeal in the High Court has been abolished does not ipso facto deprive an aggrieved person from invoking the constitutional jurisdiction seeking C therein a declaration that the decision of the Appellate Authority was ultra vires, although of course the merits of the decision could not be questioned by embarking upon re-appraisal of evidence, in that, the constitutional jurisdiction is distinguishable from that exercisable in a full-fledged appeal.
For the reasons stated above, the impugned orders dated 15-12-1979 of the learned Rent Controller, Lahore, and the order dated 29-3-1980 of the learned. Additional District Judge, Lahore, are hereby declared as without lawful authority and of no legal effect. The learned Rent Controller is directed to hear arguments of the learned counsel for the parties and finally decide the case on merits, within one month. The parties are directed to appear before the learned Rent Controller on 28-6- 1983 for further proceedings. With these observations the writ petition is accepted but there shall be no order as to costs.