1. ' MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought by a tenant; against the dismissal by the High Court, of petitioner/tenant's Constitutional Writ Petition against the order of his eviction on the ground of striking off of his defence.
2. ' The facts stated from petitioner's side are that in the ejectment application filed by the respondent/landlord in March, 1979 the grounds urged were default in payment of rent and personal use. The learned Controller ordered ejectment inter alia on ground of personal need. The petitioner's appeal was allowed by a consent order and the case was remanded. In the second round the Rent Controller again ordered petitioner's ejectment. His appeal succeeded but the respondent's Writ Petition was allowed by the High Court and the case was again remanded this time to the District Court for fresh decision of the appeal regarding the ground of default as well as the point relating to the striking of the petitioner's defence under section 13(6) of the Rent Restriction Ordinance. During the third round after remand by the High Court the appeal Court held, on merits that the petitioner had not committed any such "default" in so far as the normal payment of rent is concerned, which would render him liable to eviction; but he had on the other hand failed to obey the order for deposit of rent passed under section 13(6). Accordingly, the order of ejectment on the basis of the striking off of the petitioner's defence was passed. The petitioner invoked the Writ jurisdiction of the High Court but without any success. He has, therefore, sought leave to appeal.
3. ' Learned counsel for the petitioner has contended that the question of default in payment of rent having finally been decided against the landlord it was impermissible to strike off the defence of the petitioner due to his failure to obey the rent order of the Controller. He also urged that the order for deposit of rent was passed on misrepresentation made by the respondent/landlord, therefore, the said order, even to the extent that it related to a tentative decision, merited to be set aside by the appellate forum when hearing the appeal against the ejectment, though such order for deposit of rent per se is not appealable at the instance of the tenant as has been held by this Court in the case of Ibrahim v. Muhammad Hussain PLD 1975 SC 457.
4. ' In support of his second point the learned counsel stated that the default period mentioned in the order for deposit under section 13(6) is August, 1977 to November, 1979. The month of August, learned counsel argued, could not have been included because, as further stated and argued, the petitioner had during ensuing trial was able to establish that rent was paid for that month through a receipt the execution of which was accepted by the respondent side. On this basis learned counsel further argued, if the Controller would not have been misled by the respondents' misrepresentation regarding the month of August, 1979, that month would have been excluded from the rent order. Similarly he argued that the respondents/landlord had misrepresented other facts before the Rent Controller at the initial stage of passing pre-trial rent order on 17-11-1979.
5. Accordingly, relying on precedent law in this behalf he rightly contended that in final appeal against ejectment the order dated 17-11-1979 could have been scrutinized so as to discover whether it was validly passed. In so far as the wide general proposition is concerned that a rent order by itself is not appealable, there is no cavil with this proposition. Similarly the learned counsel is right that the tenant having no right of appeal against such a tentative pre-trial rent order, has a right to challenge it if and when his defence is struck off and he is ordered to be evicted due to the disobedience thereof. See the judgment of this Court in the case of Mrs. Zarina Khawaja v. Agha Mahhoob Shah PLD 1988 SC 190. But this reiteration of law on the point raised would not by itself sufficient to grant relief to the petitioner. He would have further to show that when passed in this case on 17-11-1979 the pre-trial rent order could not have been passed. We have noticed that there was serious allegation of default in payment of rent for a long period extending over more than 2 years. The learned Rent Controller, it appears, held summary inquiry regarding this assertion from the landlord aside during which both the parties were heard. In that inquiry the petitioner had failed to satisfy the learned Rent Controller with regard to timely payment of rent by him for the entire period. In these circumstances at that stage only a tentative order, and that too on the basis of approximation, had to be passed. Therefore, it is one of those orders which, keeping in view the stage at which it was passed and c the period for which it was passed, could not be treated either against law or any principle. It has often been held that detailed, in depth, inquiry cannot be held at that stage nor issues may be framed. The nature of the inquiry is not of a trial before trial. The mere fact that subsequently during the trial of the issue relating to default, it was not found to be so actionable as to incur liability for eviction, or for that matter the fact that during the trial the issue of default is found in favour of the tenant, would not render the tentative order of deposit of approximate rent either invalid or improper. The result would depend on the circumstances of each case. In the present case neither the High Court nor we have been able to discover any such element in the case which, as it was presented before the Rent Controller on 17-11-1979 at the pre- trial stage, would render the rent order passed on that date invalid or improper. See also amongst others Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1.10 Accordingly, no justification has been made out for interference on this ground.
6. ' The other ground namely that the petitioner having succeeded on merits the defence should not have been struck off on account of failure to obey the order of the learned Rent Controller passed under section 13(6), is also of not much force. The rule laid down in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 goes against the petitioner. Once a "default" with regard to a deposit under section 13(6) is established the Rent Controller has no jurisdiction not to pass an order for striking off of the defence unless a type of exception visualised in the said case; namely, a situation "beyond control" is established by the tenant. Or as held, in some subsequent cases certain payment from the tenant side is held to be equal to the "deposit" itself and thus, it is made possible in that type of cases to hold that no "default' took place in so far as the obedience to the rent order is concerned. This is not the petitioner's case. He had clearly failed to obey the order of Rent Contract dated 17-11-1979. His defence was rightly struck off. As held in the case of Ghulam Muhammad Khan Lundkhor the legislature never intended to leave it to the "discretion of the Rent Controller to decide whether he would or would not in given case enforce the default clause. The legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence". Further this Court elaborating the object of this somewhat harsh provision in the rent law observed and held as follows:-- "The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligation from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but G also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available..
7. (Underlining is ours)
8. ' Accordingly, after hearing both the learned counsel we are satisfied that there is no force in any of the contentions raised and the impugned judgment does not justify interference by this Court.
9. Leave to appeal, accordingly, is refused.
10. ' On the request and undertaking by the learned counsel that in case the respondents allow further time to the petitioner to vacate the shop he would surrender vacant possession without any further notice to the landlord on or before the expiry of the period so granted and further that the rent for said period shall also be paid on time, learned counsel for the respondents has agreed to allow four months time till 1-1-1991.
11. Order accordingly.
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