1. NASIM HASAN SHAH, J.-- In an ejectment petition, filed against the petitioners, an order was passed on 16-12-1978 under section 13(6) of the Rent Restriction Ordinance for payment of arrears of rent for 36 months upto December, 1978 at the rate of Rs.30 per month amounting to Rs.1,080 before 10-1-1979. Future rent was also directed to be deposited for each subsequent month before the 15th day of each month. Since it was asserted by the petitioners that they had been depositing rent for the above period in the Court, it was directed that the petitioners may subtract the amount deposited in the Bank against receipts thereon from this sum of Rs.1,080.
2. It appears that the petitioners did not deposit any amount in the Court of the Rent Controller. The respondents, therefore, filed an application for striking off the defence of the petitioners. An issue was framed whether the petitioners had made a default in payment of the rent in violation of the order dated 6-12-1978 and it transpired that the petitioners had earlier deposited Rs.990 in the Bank. It was held that they were entitled to subtract this amount from the figure of Rs.1,080 and were bound to deposit only the balance amount of Rs.90 in Court. The failure to deposit this amount in Court before the stipulated date was regarded by the Rent Controller to be a violation of his; order passed under section 13 (6) of the Ordinance. The Rent Controller, accordingly, struck off the defence of the petitioner. The same view was taken by the learned District Judge in appeal. The petitioners, therefore, filed a writ petition in the Lahore High Court where they took up the plea that they having spent Rs.90 on repairs were not{--defaulters. Hence, their defence could not be struck off. The learned' Judge held that the order under section 13 (6) whereby the amount to be paid was fixed tentatively had to be deposited in Court subject to deducting the amount deposited in the Bank against receipts only. The question whether the petitioners were entitled to deduct any money from the rent on account of repairs and whether they had actually incurred the amount towards repairs was a plea that could only be taken finally to establish that there was no default in the payment of rent. The writ petition was, accordingly, dismissed. Hence, this petition for leave.
3. Mr. A.W. Butt, learned counsel for the petitioners, challenged the orders of the Courts below on the ground that the order of deposit under section 13(6) the Ordinance was not valid because the rent of the month of December, 1978, was also included, in the order of deposit passed on 16-10-1978, whereas the rent up to December could have been included.
4. We observe that the rent was to be paid by 10-1-1979 and even otherwise, the monthly rent was Rs.30 and even if the rent of the month of December was not included the petitioners would still be in default.
5. He then urged that the respondents had waived their right by withdrawing the amount of Rs.990 which was deposited by the petitioner in the Bank. But these pleas, we may observe, could only be taken after the petitioners were allowed to enter upon their defence and this could only be permitted if the petitioners complied with the order of deposit under section 13(6). This alone could provide them with an opportunity of entering upon their defence. The said order not having been complied with, in accordance with its terms, their defence was liable to be struck off. As it was established that the order dated 16-12-1978 was not complied with according to its terms the decision striking off their defence cannot legitimately be objected to.
6. This petition must, therefore, fail and is dismissed hereby.
7. The interim order, passed on 8-9-1980, is hereby vacated.