' Mst. Parveen respondent No,3 brought an ejectment application against the petitioner to which a preliminary objection was taken by the petitoner regarding jurisdiction. It was contended by the petitioner that the premises was a factory and that the Rent Controller had no jurisdiction. The Rent Controller vide his order, dated 17-1-1982 found otherwise and came to the conclusion that the Rent Controller had jurisdiction. On 7-2-1982 an order under section 13(6) was passed by the learned Rent Controller directing the petitioner to deposit the rent at the rate of Rs,500 per month for the period of November, 1980 to January, 1982 and to deduct any amount which had already been paid. The petitioner deposited the amount of Rs,5,900 and claimed deduction of Rs,1,600 which he paid through four money orders on 15-11-1980 4-12-1980, 9-2-1981 and 17-3-1981. The landlady, however, applied to the Rent Controller to strike off the defence of the petitioner for not complying with the orders under section 13(6). The learned Rent Controller vide his order, dated 24-4-1982 found that the order had not been complied with as Rs,1,600 said to have been deposited for the months of November, December, 1980 and January and February, 1981 had already been accounted for the period of July, August, September and a portion of rent for October, 1980. He ordered that the defence be struck off and by the same order directed the petitioner to handover the possession within ten days. The petitioner brought an appeal before Mr. Iftikhar Ahmad Cheema, learned Additional District Judge Sialkot and raised two pleas, namely, lack of jurisdiction of the Rent Controller and that the petitioner had not disobeyed the orders under section 13(6). The learned Additional District Judge dismissed the appeal vide his order, dated 31-10-1983 holding that the question of jurisdiction having once been decided by the Rent Controller had attained finality as the petitioner never challenged the orders in appeal. Regarding the question of default he came to the conclusion that the tenant could not have the benefit of Rs,1,600 as he had in the meantime already violated the orders of the Rent Controller. The petitioner/tenant has challenged the orders of the Rent Controller and the appellate authority in the present writ petition.
2. The learned counsel for the respondent agrees that the learned Additional District Judge had misdirected himself in coming to the conclusion that the question of jurisdiction was no longer open for challenge in appeal. In fact interim order regarding jurisdiction passed by the Rent Controller could be challenged only after final orders are passed.. The order to this extent admittedly is illegal. The learned counsel for the respondent, however, argues that the High Court can come to its own conclusion regarding the question of jurisdiction and need not remand the case to the appellate Court to decide this question again.
3. The petitioner's defence was struck off when the learned Rent Controller found that the petitioner had defaulted by a short payment of Rs,1,600 in complying with the orders under section 13(6). On this question the parties had conflicting submissions to make. In the ejectment application itself the landlady admitted receiving four money orders for a total amount of Rs,1,600 but claimed that this amount had been paid for the months of July, August, September and a portion of rent of October, 1980. In reply to the ejectment application the tenant claimed that this amount was actually paid for November and December, 1980 and January and February, 1981 and that the rent for the months of July August, September and October had separately been paid to the husband of the landlady. It is, therefore, clear that the question of deposit of Rs,1,600 whether it was meant for July to October, 1980 or for succeeding period of November, 1980 to February, 1981 was still contentious between the parties. The learned Rent Controller, however, held that this amount had already been deposited for the period of September to October, 1980. It was against this finding that the petitioner had moved an appeal. The appellate authority has not attended to this part of the case and has jumped to the conclusion that the order under section 13(6) stood violated and, therefore, no further defence was available to the tenant. In my opinion the learned Additional District Judge, Sialkot has fallen into error in this regard and has not applied his mind in coming to the conclusion that the petitioner had not complied with the orders under section 13(6).
4. Regarding the question of jurisdiction I agree with the learned counsel for the respondent that the High Court is in a position to decide this matter itself and need not remand the case to the appellate Court on this ground. But, since in my opinion, the appellate authority failed to apply its mind regarding the question of compliance of the orders under section 13(6), it is proper that the question of jurisdiction may also be decided by the appellate Court which had earlier been left undecided erroneously assuming that the orders of Rent Controller had attained finality.
In view of the above considerations the writ petition is allowed The orders of the learned Additional District Judge Sialkot, date 31-10-1983 are set aside and he is directed. To decide the appeal afresh after giving adequate opportunity of hearing to the parties The parties are directed to appear before the appellate Court on 2-5-1984. There shall be no order as to costs.