' This writ petition is directed against an order of ejectment whereby the petitioners, Sultan Muhammad and another, have been directed to vacate certain premises. The order was made by a Rent Controller after striking off their defence in the ejectment application filed by respondent No, 3, Sher Muhammad, hereinafter referred to as the respondent. The order of the learned Rent Controller was challenged by the petitioners by taking an appeal before an Additional District Judge but without success. Hence this Constitutional petition.
2. It was on 20th February 1982 that the learned Rent Controller had directed the petitioners to deposit arrears of lent for the period from 5th June 1973 to 28th February, 1982 at the rate of Rs, 40 per mensem as also future rent, at the above rate, for each month before fifteenth day of the next month. The arrears of rent were required to be deposited by 20th March, 1982. Admittedly, no arrears of rent or any future rent was deposited by the petitioners till 2nd May, 1982 when their defence was struck off.
3. It was contended by learned counsel for the petitioners that the order of deposit of rent was illegal and, therefore, their defence could not be struck off for their not complying with that order.
He submitted that the learned Rent Controller could not order deposit of arrears of rent for the period exceeding three years as claim for arrears of rent for the period prior to that period had become time-barred. The argument precedes that since the petitioners were required to deposit arrears of rent for about nine years the order of the learned Rent Controller was illegal. According to the learned counsel defect in relation to the denosit of time-barred rent invalidated the entire order in respect of the deposit of rent and, therefore, the petitioners were not obliged to comply even with that part of the order which was not defective.
4. The question whether a tenant can totally ignore an order for deposit of rent if it is defective in certain respects but is valid in other respects was examined by me earlier in Salahud Din Butt v.
Khawaja Muhammad Tariq (1) and the view expressed by me was that if any part of the order is defective it does not taint the whole of the order and the tenant is bound to comply with that part of the order which does not suffer from any defect. Nothing was placed before me by the learned counsel to persuade me to take a different view in the instant case. The order of the learned Rent Controller was valid to the extent of deposit of arrears of rent for the period of three years immediately preceding the date of the order. It was free from defect in so far as direction relating to the future rent was concerned. It was, therefore, the duty of the petitioners to deposit arrears of rent for the said period of three years by the stipulated date. It was also their obligation to deposit A future rent for each month before the fifteenth day of the succeeding month. This was, however, not done by them. They cannot. Therefore, escape the legal consequences of their default just for the reason that the order of deposit of rent also contains direction relating to the deposit of time- barred rent. In this view of the matter, the said direction is of no help to the petitioners.
5. It was also submitted by learned counsel for the petitioners that no opportunity was given to the petitioners to explain their position before their defence was struck off. The order of the learned Rent Controller would reveal that the petitioners had themselves offered explanation for their default, by making application for extension of time. That explanation did not find favour with the learned Rent Controller. It was, therefore, not necessary to afford another opportunity to the petitioners to explain their shortcoming. The only reason given by them in the said application for {{FOOT NOTE}}
(1) PLD 1981 Lah. 132 {{FOOT NOTE}} 'there are not complying with the order of the learned Rent Controller was that they could not make the necessary deposits due to poverty. As remarked by the learned Rent Controller, this was not a sound reason.
6. One more point canvassed by the learned counsel was that the rate of rent fixed by the learned Rent Controller was excessive. According to the learned counsel, the monthly rental of the premises in dispute was Rs,
13. The learned Rent Controller, however, directed them to deposit rent at the rate of Rs, 40 per mensem. He had given reasons for so doing. The rent fixed by him was tentative. If the petitioners had deposited the rent accordingly and had subsequently shown that they were not bound to pay rent at the rate of Rs, 40 per mensem the learned Rent Controller would have ordered refund of the rent which would not have been found due from them. It was the duty of the petitioners to comply with the order of the learned Rent Controller, which was of provisional nature.
Since they had failed to do so, their defence was rightly struck off by him.
7. Another argument advanced by the learned counsel was that the case giving rise to this petition was of statutory tenancy, created by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but no notice under the said provisions of law was served on the petitioners before the ejectment application was filed. It was stated by the learned counsel himself that the application was made after the repeal of the said Act. It has been authoritatively laid down that after the repeal of the said Act it is not B necessary to serve a notice under section 30 thereof.
Therefore, even if the said notice was not given to the petitioners before the launching of the ejectment proceedings against them, it is of no consequence. There is no merit in this petition. It is dismissed in limine.