IHSAN-UL-HAQ CHAUDHARY, J.- The facts relevant for the decision of this constitutional petition are that respondent No. 1 filed an ejectment petition against the petitioner in respect of Flat No. 471-N Model Town Extension Lahore. It was pleaded that the flat had been let out to the petitioner at monthly rent of Rs. 1500/-since March, 1991. The ejectment was sought on the ground of default in the payment of monthly rent and personal use. The petitioner resisted the application. The relationship of landlord and tenant as well as the rate of rent were admitted, therefore, respondent No.2 proceeded to pass the order dated 4.12.1993 under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as Ordinance 1959) whereby he directed the petitioner to deposit the arrears of rent from March 1993 to December 1993 and future monthly rent before the 14th of every month from January 1994. The ejectment petition was adjourned to 18.12.1993 for production of receipt as to the deposit of rent. The petitioner failed to produce the receipts and proceeded to make an- application for adjournment. The ejectment petition was accordingly adjourned to 2.1.1994 on which date he produced three receipts evidencing the deposit of rent for the months of June, July, August, September, November and December, 1993. The petitioner neither deposited the rent for the months of March, April and May, 1993 nor produced any receipt in respect of the said months nor furnished any justification for his failure, therefore, respondent No.2 struck of his defence for non-compliance of the order as to arrears of rent and accepted ejectment petition vide order dated 2.1.1994. The petitioner assailed this order through an appeal before respondent No3, who dismissed the same order dated 20.12.1994. Hence the present petition, which was admitted to regular hearing and notice was issued to the respondents.
Respondent No.1, the landlord, alone has appeared and contested the petition while the others have been proceeded ex parte.
2. The learned counsel for the petitioner in support of the petition argued that according to section 13(6) of Ordinance 1959 the future rent is to be deposited before the 15th of each succeeding month whereas in the case in hand the Rent Controller, respondent No.2 directed the petitioner to deposit the rent before the 14th of every month. It is maintained that the order is, therefore, illegal. In this behalf the learned counsel has relied on the case reported as Khair Muhammad Nizamani v.
Abdul Qaddus (PLD (W.P.) Karachi 367). It is added that the security deposited with the landlord at the time4 of inception of the tenancy was Rs. 12,000/- and not Rs. 10,000/- as alleged in ejectment petition. It is added that the rent for the months of March to May, 1993 was paid but no receipt was issued on the pretext that the printed receipts were awaited and the moment the same were available the proper receipts shall be issued.
3. On the other hand, the learned counsel for respondent No. 1 argued that the order under section 13(6) of Ordinance 1959 were composed of two parts, namely, first part pertaining to arrears, and the other to future rent. It is submitted that no doubt the order as to future rent was not strictly in terms of section 13(6) Ordinance 1959 but as far as the order pertaining to arrears was concerned there was nothing wrong with the same. It is added that even the defence of the petitioner was struck of for his failure to deposit the arrears and not future rent. The learned counsel in this behalf has referred to the case reported as Salahuddin Butt v. Muhammad Tariq (PLD 1981 Lah. 132). It is added that the conduct of the petitioner is clear from the fact that in spite of the order of the Rent Controller for deposit of future rent he deposited rent for three months only i.e. January, February and May 1993. During the whole year the rent for the remaining nine months amounting to Rs.13,500/-was deposited by him after the order of this Court dated 11.1.1995. It is, therefore, concluded that the petitioner is a choronic defaulter, who does not deserve any leniency.
4. I have given my anxious consideration to arguments of the learned counsel for the parties and gone through the record, the provisions of law as well as the precedent cases. The order dated 4.12.1993 as to deposit of rent clearly consisted of two parts. The learned counsel for respondent No. 1 in his usual candid and frank manner conceded that he has nothing to support the order of the Rent Controller as far as the deposit of future monthly rent is concerned. He, however, pointed out that the petitioner should have deposited the rent at least according to his convenience within reasonable time, therefore, as far as the order pertaining to future rent is concerned I have no hesitation to hold that the order is in violation of section 13(6) of Ordinance 1959, therefore, illegal and its violation cannot result in forfeiture of tenancy. This however, is merely of academic interest because in fact the defence of the petition was struck of by the Rent Controller not for default in the payment of future rent but for the default in the deposit of arrears of rent.
5. Now coming to second part of the order pertaining tp the deposit of arrears. There is nothing wrong with the same. The petitioner was under legal 4 obligation to clear the arrears as directed by the Rent Controller but he failed to discharge his obligation. The Rent Controller exercised the jurisdiction properly and carefully as far as the order dated 2.1.1994 is concerned. The appellate Authority after giving credit for all the payments made by the petitioner during 1993 concluded that the petitioner is a wilful defaulter and confirmed the findings of the Rent Controller.
6. The next question which falls for determination is whether the valid part of the order can be separated from the invalid part. Conversely speaking whether both can be given effect independently or not? I am of the considered view that since according to the provision of section 13(6) of Ordinance 1959 the order as to deposit consists of two parts, therefore, both can be read independently more so because violation of either of the two portions results in striking of defence.
In this behalf reference to be made to the judgment reported as Fazed Din v. Dawoodur Rehman (NLR 1987 UC 38) wherein the case of Khair Muhammad Nizamani v. Abdul Qaddus (PLD 1965 (W.P)
Karachi 367) was noted and dissented instead recent cases reported as Kewalram Dayaram Shahani v. Nawab Alt (PLD 1978 Kar. 79) and Salahuddin Butt v. Muhammad Tariq (PLD 1981 Lah.
132) were followed. This brings us to the other point that the security was Rs. 12,000/-and the petitioner had paid the rent for the months of March, April and May, 1983. Suffice it to observe here that these are points touching the merits which were to be gone into after framing issues, recording evidence and hearing arguments. The adjudication on merits was subject to the compliance of the order under section 13(6) of Ordinance 1959 by the petitioner. Since he failed to comply with the condition precedent, therefore, he was not entitled to trial on merits.
7. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed with costs. However, the petitioner is allowed time upto 30.4.1995 to hand over vacant possession of the premises to the landlord.