' This is a second appeal under section 15 (6) of the Ordinance from the order of the Additional District Judge, Faisalabad, dated 26th of July, 1990, whereby he upheld the order of the Rent Controller, dated 7th December, 1989, striking off the defence of the appellant for non-compliance of the order of the deposit of rent, date.' 14th of November, 1989.
' Kh. Muhammad Younis, respondent herein filed an application under section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, on 2nd of May, 1989 against the appellant seeking his eviction from a part of property No, 15/B Khawaja Road, Mansoorabad, Faisalabad, on the grounds of default in payment of rent and damage to the property. It was stated that the appellant was in possession of the property as a tenant under a written agreement of tenancy dated 6th of March, 1988 and 26th of June, 1988. The rate of rent was alleged to be Rs,9,000 per month. In the written reply filed by the appellant, he took the position that the premises in question were an industrial concern and therefore fell outside the purview of the Punjab Urban Rent Restriction Ordinance, 1959 and the Rent Controller has no jurisdiction in the matter. The execution of the agreements, dated 6th March, 1988 and 26th of June, 1988 were not denied but it was pleaded that the rate of rent was Rs,4,500 per month. The learned Rent Controller after hearing the arguments of the parties on 14th of February, 1989 directed the appellant to deposit the arrears of rent amounting to Rs,75,000 before 16th of December, 1989 and to continue depositing the future rent at the rate of Rs,9,000 per month before the 15th of next preceding month. It was, however, directed that the respondent shall not be entitled to withdraw the rent.
3. This order was challenged by the appellant by filing Writ Petition No, 7553/89 which was dismissed in limine by a learned Single Judge of this Court on 28th of November, 1989. The petitioner went in I.CA. But failed on 5th of December, 1989. It was, however, observed by the Division Bench that the observations made by the learned Single Judge would not operate prejudicially to the interest of any of the parties in the proceedings btfore. The Rent Controller.
4. On the failure of the appellant to deposit rent as directed by the Rent Controller, his defence was struck off on 7th of December, 1989 under section 13 (6) of the Punjab Urban Rent Restriction Ordinance, 1959. This order was maintained in appeal by the Additional District Judge, Faisalabad, on 10th of January, 1990, who dismissed the appeal on the ground that proper court-fee had not been paid. Aggrieved by this order, the petitioner filed Writ Petition No,339/90 which was accepted by a learned Single Judge of this Court on 23rd of June, 1990 who directed the appellant to make up the deficiency by 8th of July, 1990, and remanded'the appeal to the Additional District Judge, for decision afresh.
5. By his judgment dated 26th of July, 1990 the Additional. District Judge once again dismissed the appeal of the appellant firstly on the ground that proper court-fee had not been paid by him and secondly, that the order of the Rent Controller striking off the defence of the appellant was unexceptionable.
6. Learned counsel appearing on behalf of the appellant contended that as the exact amount of court-fee payable by the appellant had never been calculated by the Additional District Judge, the appeal could not be dismissed for non-payment of court-fee. This contention of the learned counsel is well-founded and is supported by the authority of the Supreme Court in the case of Muhammad Bashir and another v. Syed Altaf Hussain Shah through his Legal Heirs and 5 others (1990 SCM R 3).
7. The appellant, however, does not appear to have any case on merits. As he had failed to deposit the rent, as directed by the Rent Controller under section 13 (6) of the Punjab Urban Rent Restriction Ordinance, 1959, the Rent Controller was justified in striking off his defence. But the learned counsel challenged the validity of the order of depositing rent dated 14th November, 1989, by contending that the appellant had objected to the assumption of jurisdiction by the Rent Controller on the plea that since the premises in question were neither a 'building' nor 'rented land' but were an industrial concern, the provisions of Punjab Urban Rent Restriction Ordinance, 1959 were not attracted. A perusal of the record shows that while directing the deposit of rent of 14th November, 1989, the Rent Controller observed that the relationship of landlord and tenant between the parties was admitted and although the rate of rent was disputed, but prima facie the rate was Rs,9,000 per month and the appellant should deposit rent for the period from 1st of April, 1988 to November, 1989 at the said rate after deducting the amount of security lying with the landlord. As regards the objection as to the maintainability of petition on the ground that it was a factory, it was observed that the matter can only be decided after recording evidence.
8. From the record, it is evident that the contention that the premises fell out of the purview of Punjab Urban Rent Restriction Ordinance, 1959, has no force. In the written statement, it was asserted that the appellant had obtained the property in dispute from the respondents for running a factory therein, but it was not pleaded that factory already existed at the time it was rented out.
The execution of the agreement, dated 6th of March, 1988 stands admitted. A perusal of this agreement also shows that it was the building which was rented out and at that time, there was no factory. There is thus no force in the contention of the learned counsel that the Rent Controller had no jurisdiction to entertain the petition for eviction filed by the landlord.
' There is no force in this appeal, which is dismissed. With no orders as to costs.