MUHAMMAD HALEEM, C.J.--The dispute relates to shop No.V/520-L, situate in Kanak Mandi, Rawalpindi.
2. The respondent herein sued for the eviction of the petitioner on the ground that he defaulted in the payment of rent at the rate of Rs.100 per month on the basis of the latest assessment of the Excise and Taxation Department. The petitioner resisted his eviction on the ground that he was regularly paying rent at the rate of Rs.20 per month while at the same the he disputed the assessm ent, and also the failure of service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
3. The Rent Controller by his order, dated 28th July, 1970, rejected the application, but on appeal the respondent succeeded and the case was remanded to the Rent Controller by order, dated 2nd of January, 1971. The Rent Controller by another order, dated 1st of April, 1964, approximately determined the amount of rent at Rs.100 per month as there was dispute in regard to its quantum and directed the petitioner to deposit the arrears of rent for the period from 1-8-1965 to 1-8-1968 and thereafter till 31st of ;March, 1971, in all numbering 68 months and amounting to Rs.6,800 less rent paid at the rate of Rs.20 per month on or before the 15th of April, 1971 and future rent at the same rate before the fifteenth day of each month and the case was set down for hearing on 16th of April, 1971.
4. Aggrieved by this order, the petitioner went in appeal and raised to submissions. The first was that the enhanced rent was recoverable only from the date of the service of the notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, .And the second was that the rent of a particular building should be determined on the assessment relating to other properties in the locality and this rested on the language of proviso (a) to subsection (1) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act. The appellate Court accepted the first contention, but rejected the second with the result that Rs.100 per month was payable only from 1-4-1968 i.e. The date of service of notice, to 30th of March. 1971, less the rent already deposited or paid at the rate of Rs.20 per month, and for the period earlier to 1-4-1968 the arrears of rent were payable at the rate of Rs.20 per month, by order, dated 1-6-1971.
5. Against this order the appellant went in the second appeal in the Lahore High Court, Lahore, and during the pendency of the appeal to interim orders were passed, the first on 14th of September, 1971 by which the appellant was required to deposit rent at the rate of Rs.20 per month, and the second on 31st of March, 1972, by which he was further required to furnish security for the balance amount of Rs.80 per month presumably under Order XLI, rule 5, C.P.C. This appeal was not disposed of on merits as in the meantime this Court, in Ibrahim v. Muhammad Hussain PLD 1975 SC 457, held that the determination of current rent and the amount of arrears payable is provisional under the first part of section 13 (6), and, therefore, no appeal lies against it. The High Court, accordingly, held that the first appeal was incompetent and so was the second appeal, and, therefore, the order of the Rent Controller, dated 1-4-1971 stood restored. However, an observation was made in terms: "Not aware of the stage of the proceedings it will be open to the Rent Controller to pass an order consequential to the interim order granted by this Court to enable the occupant of the property to take such action with respect to compliance with his order as he deems proper depending upon the stage at which proceedings are at the moment."
The Rent Controller did not pass any fresh order in the above context as he was of the view that it was directory.
6. In the proceedings for the striking of his defence, the petitioner only raised to submissions. The first was that on the return of the record, the Rent Controller should have passed a fresh order for the deposit of rent at the rate of Rs.100, and the second was that as he had been depositing the rent at the rate of Rs.20 per month regularly, therefore, he should have been called upon to deposit arrears of rent at the rate of Rs.80 per month in respect of which amount the High Court had ordered the furnishing of the security. The Rent Controller held that as the High Court had clearly held in its order, dated 17th of April, 1978, that the order of the trial Court, dated lst April, 1971, was restored, the petitioner had knowledge of the order having been restored and no fresh direction was necessary, and, therefore, he should not have defaulted in the payment of arrears of rent and future rent at the rate of Rs.100 per month as after the date of the order of the High Court.
Accordingly, his defence was struck of and he was ordered to vacate the shop by order, dated 1st of November, 1978.
7. In appeal before the District Judge again a question was raised that the Rent Controller should have passed a fresh order before holding him to have defaulted in the payment of rent in accordance with the direction of the High Court, but this contention was not accepted as it was held that as by the restoration of the earlier order there was no ambiguity firstly, in regard to the interim order passes by the High Court as that only related to the arrears of rent and secondly as to the payment of future rent at the rate of Rs.100 per month following the announcement of the order by the High Court. There was, therefore, default by the appellant in not depositing the arrears of rent and future rent for seven months, and, accordingly, the order of the Rent Controller was upheld.
8. The petitioner next impugned this order before the Lahore High Court, Rawalpindi Bench, in constitutional jurisdiction. Here to the same arguments, as raised before the Rent Controller, were advanced, namely that he should have been called upon to deposit the rent at Rs.80 per month for which he had furnished security, and consequently a fresh order should have been passed directing him to deposit rent at the rate of Rs.100 per month in terms of section 13 (6) of the Urban Rent Restriction Ordinance, 1959. The High Court rejected these contentions and held. The observations in the earlier order of the High Court ,as directory.
9. The learned counsel for the petitioner urged that as the assessment was not legally valid, therefore, the order for the deposit of the arrears of future rent at the rate of Rs.100 per month was illegal and not liable to be complied with. This argument is untenable as will presently be seen.
Section 13 (6) of the Urban Rent Restriction Ordinance, 1959, requires that in case of a dispute the Rent Controller shall first approximately determine the quantum of rent and direct' the arrears and future rent to be paid on the fifteenth of each month. No legal criterion is laid down for determining the rent; therefore, it lies within the discretion of the Rent Controller to so fix it. This determination is, however, provisional and subject to the final determina--tion of the amount due as rent on the conclusion of the proceedings. In case of default in the payment of the arrears of rent or the future rent, the Rent Controller is empowered to strike of his defence and order his ejectment without taking any further proceedings in the case. It, therefore, follows that in the proceedings such as were before the Rent Controller in regard to the violation of the order as to the payment of arrears and future rent, the legality of the quantum of rent could not be challenged as the proceedings before the Rent Controller were confined to an inquiry relating to the willful default in the payment of arrears of rent and future rent and not to any other matter. It is only if the proceedings had concluded and there was a legal defect in the final determination of the quantum of rent, upon which eviction was ordered as in accordance with section 13(2)(i) that this defect could have been agitated as it then would have been relevant in the context of the term "rent due". This is not the case here; and the grievance of the learned counsel thus stands fore-closed. Accordingly, the order of the High Court is unexceptionable.
10. In this view of the matter, there is no merit in this petition, which is, accordingly, dismissed.