' ABDUL KHALIQ KHAN, J.--The question for determination in the writ petition is, if the Appellate Court could strike off the defence of the tenant/respondent under section 13(6) of the Rent Restriction Ordinance, without having made direction with regard to the deposit of rent.
2. The facts relevant to answer the question, in brief are that on 14-9-1981, the respondents Nos. 4 to 9 initiated proceedings in the Court of Rent Controller, D.I. Khan for ejectment of Haji Noor-ul- Hassan and two others, on the grounds that the shop in question rented to respondent No. 1 was personally needed by some of the landlords that the tenant has sublet the shop to co- respondents, that they have damaged the property and that the tenant has his own shops in Muslim Bazar, D.I. Khan, which he has rented to other persons.
3. The claim was resisted by the opposite party and in result, issues arising out of the pleadings of the parties were framed and evidence recorded. It may, however, be stated that though no order with regard to deposit of rent was made as no allegation for non-payment of rent had been preferred, however, on 13-1-1982, Haji Noor-ul-Hassan, the tenant, moved the Court for deposit of arrears of rent and in consequence, on 16-5-1983 after notice had been served on the admitted, landlord, the tenant-appellant was directed to deposit an amount of Rs.1,750 as arrears of rent before 22-6-1982. He was further directed that in future, the monthly rent is to be deposited before the 15th of the succeeding month. The order of the Rent Controller was complied with till the time, that the main application was disposed of on 22-5-1983. The petition for ejectment was dismissed but the parties were left to bear their own costs. Dissatisfied, the landlord filed an appeal in the Court of District Judge, D.I. Khan. The said appeal was pending disposal when it was brought to the notice of the Court that as the tenant has failed to pay the rent for the month of July 1983 per directions of the Rent Controller, hence his defence be struck off. It may be noted that the rent for the month of July 1983 was deposited on 3rd of September, 1983. The learned first Court of Appeal after having heard the arguments, was pleased to agree with the arguments addressed on behalf of the landlords, ordered the striking off the defence of the tenant and in result, directed him to vacate the premises and put the landlord into possession of the shop forthwith. Aggrieved, the tenant has filed the present writ petition challenging the correctness of the said order.
4. It was argued that in view of the amendment in the N.-W.F.P.
Rent Restriction Ordinance in consequence of Ordinance IX of 1979, it was incumbent on the Appellate Court to have directed the tenant with regard to the deposit of rent and having not done so, no punitive action taken was tenable under the law.
5. In order to follow the arguments of the learned counsel: we may refer to the relevant provision of section 15 of the Rent Restriction Ordinance as amended which reads as under:-- no) --------------------------------------------------------------------------------- (ii)
(iii) ----------------------------------------------------------------------
(iv) -------------------------------------------------------------------------------
(v) "The appellate authority admitting an appeal for hearing shall have the same powers to direct the tenant to deposit the rent as are vested in the Controller under this Ordinance and, if the tenant makes default in compliance with such an order, then, if he is the appellant, his appeal shall be dismissed summarily and, if he is the respondent, his decree shall be struck off."
'It is evident that as far as the order with regard to deposit of rent by the Rent Controller is concerned, it is effective only till the disposal of the petition and where an appeal is preferred, the Appellate Court is to make fresh order with regard to deposit of rent. In Qamar-uz-Zaman v. Khair- ud-Din and 2 others 1980 CLC 2007 based on the authority reported in PLD 1969 SC 424, it has been observed that "a close scrutiny of the above provision clearly indicate that an order passed under section 13(6) of the Ordinance remains effective only upto the time of the final determination of the proceedings before the Controller. The order contemplated by the first part of section 13 (6) is of an interim or interlocutory nature and cannot be said to remain effective after the final determination of the proceedings in which it is made".
6. It is thus well-established that in order to strike off the defence of the tenant, it was conditioned precedent that the Appellate Court had made directions for deposit of rent and evidently, in the absence of any such direction, the Court of appeal had no power to strike off the defence of the tenant whether he was appellant or respondent.
7. In result, we would accept this writ petition and direct that the learned District Judge decide the appeal on merits. It may also be necessary for him to make an order with regard to the arrears of rent, if any, and payment of future rent. We make no order as to costs.