1. ' This second appeal arises from ejectment case filed in the year 1975 under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Rent Controller passed order of eviction under section 13(6) of the said Ordinance striking off the defence on account of non- compliance with tentative Rent Order. Appeal filed against the order of eviction has been dismissed by the first Appellate Court. There are concurrent findings of the two Courts below on the question whether the defence has been struck off properly and with good reasons, which is a question of fact. On being confronted with this position, Mr.S.A. Farooqui Advocate for Appellant/Tenants submitted that there is a question of law involved as the first Appellate Court did not entertain his application filed under Order XLI, rule 27, C.P.C. For additional evidence and he further submitted that tentative Rent Order is for the benefit of the landlord and if the landlord accepts the rent outside the Court, then the tenant is not liable to be ejected. Learned Counsel further submitted that in the instant case tenant did not commit any default in compliance of the tentative Rent Order and the tenant had paid rent for the months of default alleged against him directly to the landlady, who issued receipts and he could not produce these receipts before the learned Rent Controller but attempted to produce them before the first Appellate Court, which did not allow him to do so and dismissed his appeal, hence the second appeal.
2. ' Perusal of the record shows that tentative Rent Order was passed on 17-8-1976. It would be pertinent to mention here that Respondent/ Landlady filed ejectment application on the ground of sub-letting and according to her Muhammad Kamil was her tenant, who had unauthorized sub-let the premises to Muhammad Zafar. Both were impleaded as opponents in the ejectment application. There was no dispute about the rate of the rent and the rent was being deposited in Misc. Rent Case No, 139 of 1976. In these circumstances it was directed by the Rent Controller in the tentative rent order that the tenant should continue depositing future rent in that miscellaneous case on or before 15th of each succeeding month. On 7-8-1977 application was filed on behalf of landlady for striking off defence on the ground that rent for the months of April, May, June and July of 1977 was not deposited by the tenant in compliance with tentative rent order. The Court ordered issuance of notice, costs, hearing and report of Nazir. On the same day copy of this application was received by the counsel of the tenant and as per case diary of that date the case was adjourned to 17-8-1977 for Nazir's report and hearing. On this date Presiding Officer was busy in the work of election and Advocates of both parties were present and the hearing was adjourned to 24-8-1977.
3. It appears from the case diary that on that date report of the Nazir had not come hence that direction was repeated. On 24-8-1977 Advocates for the parties were present and Advocate for the tenants moved an application for adjournment which was granted and the order was passed on the application and the case was adjourned to 29-8-1977 for hearing. On 29-8-1977 tenants and their counsel were called absent. Perusal of the report of the Nazir showed that rent for the month of April, 1977 was not deposited in the month of May, 1977 and rent for the month of June, 1977 was not deposited in the month of July, 1977 and further no objections were filed on behalf of the tenant as such the defence was struck off and in consequence ejectment order was passed under section 13(6) of the said Ordinance. In this context Mr.S.A. Farooqui argued that on 24-8-1977 he had filed an application for adjournment in which he took plea that tenant Muhammad Kamil had paid rent to the landlady outside the Court and the receipts were in the custody of his mother, who had gone away to Rawalpindi as such request was made for adjournment of two weeks which was granted, hence he was waiting to file objections along with receipts when suddenly the defence was struck off and Order of eviction was passed. Mr. S.A. Farooqui submitted before me that in fact that application dated 24-8-1977 was for extension of time to file the objections. Perusal of original application in the record shows that the application has caption in which it is stated "application for adjournment". On this application in the margin Rent Controller had ordered "adjourned". Case diary relating to that date is to be read to see as to what order was passed by the Rent Controller.
4. Case diary of 24-8-1977 clearly mentions that Advocate for the tenant moved applicaTIon for adjournment. Order passed thereon. Put off to 29-8-1977. My assessment of situation is that the Rent Controller did not read the contents of this application and was under the impression that it was just an application for adjournment which he had allowed by writing one word on it. In any case, be that as it may, in the contents of the application there was a request as claimed by the counsel for the tenant and that request was granted but then specific next date was given which is reflected in the case diary from which it appears that time was allowed or the hearing was adjourned to 29-8-1977. This date was given in presence of counsel for the tenant hence he should have been present on the next date i.e, 29-8-1977 when final order was passed. Secondly it is not understandable -as to what prevented the learned counsel for the tenant to file objections as such stating A therein that rent was paid to the landlady outside the Court fors the period alleged and receipts would be produced later. Thirdly since date 29-8-1977 was given by the Court specifically in presence of Advocates for both the parties, why appearance was not made by the counsel for the tenants on that day and neither the objections were filed nor any application for adjournment was made, which resulted in the striking off the defence and passing of order of eviction. In such circumstances no exception can be taken to the order passed by Rent Controller on 29-8-1977.
5. ' In the appeal objection was taken in paragraph 4 of the memorandum of appeal that the learned Rent Controller granted application under section 13(6) of the said Ordinance on 29-8-1977 at about 10.00 a.m. Without affording sufficient opportunity to file objections and/or show cause and order of ejectment was passed ex parte. Appeal was filed on 25-9-1977 and subsequently on 13-7- 1978 application was filed under Order XLI, rule 27, C.P.C. With prayer to produce receipts to oppose application under section 13(6) of the Ordinance. This application under Order XLI, rule 27, C.P.C.
6. Was dismissed by the first Appellate Court vide order, dated 29-8-1978 after hearing both the parties. Perusal of the record of the first Appellate Court further shows that Revision Application was filed against the dismissal of application under Order XLI, rule 27, C.P.C. Which was admitted in the High Court vide order, dated 13-2-1979 and even stay was granted. Subsequently Mr. S.A. Farooqui Advocate withdrew the Revision Application and the counsel for respondent appearing in that case did not claim the costs. Accordingly Revision Application was dismissed as withdrawn with no order as to costs and the parties were directed to appear before the Appellate Court on 26-3-1984. Such order, dated 20-2-1984 passed by the High Court dismissing Revision Application is available in the record of the lower Appellate Court. After that once again at the time of regular hearing of the appeal this point was re-agitated and has been suitably dealt with in the order passed by the first Appellate Court dismissing the appeal. It was argued before the first Appellate Court that the tenant paid rent to the landlady outside the Court and he had the receipts to prove this fact. In this context I would like to point out that as against this, before the learned Rent Controller in the application for adjournment dated 24-8-1977, definite plea was taken that Muhammad Kamil had receipts of rent deposited in R.C. No, 139 of 1976 but the same were kept in the custody of his mother. It is quite obvious that at that time it was not pleaded specifically that rent was paid to the landlady outside the Court but the plea was that the rent was deposited in R.C. No, 139 of 1976. For the first time before the first Appellate Court plea was taken that the rent was paid to the landlady outside the Court. In the circumstances and for the facts and reasons stated above I am of the view that since there are concurrent findings of the two Courts below on a question of fact, no interference is called for and the appeal is dismissed in limine.