[VoLxiv Mrtiwwd MtoLr KMaL Zafalda hrvtai C.C. 437(Ruaaal HaqCfcaw&a^j)IHSAN-UL-HAQ CHAUDHARY, J.- The frets relevant for the decision of this second appeal arc that the respdfrdent filed an ejectment pr-ridon the appellant in respect of Shop NoJJ-17/72 Railway Hoad, Gtljrat. Ft was pleaded that die shop was let out to the appellant vide rent note dated 3L3.1993 on monthly rent of Rs. 2500/-. The ejectment of die appellant Was sought on the ground of default in the payment of rent and personal need. The appellant contestwl die petition, however, as the relationship and the rate of rent were admitted, therefore, the Rent Controller proceeded to pass order tinder section 13(6) of the Punjab Urban Rent Restriction Ordinance, 19S9 (hereinafter to be referred as Ordinance 1959) whereby the appetowmSrectftd to deposit arrears of rent from January to March 1994 and future monthly rent regularly before 10th of each month. The appellant did not comply with this order and instead moved ^ of tiajfc The Rent Controller after hearing the partiesand granted the ejectment petition vide order dated o.x994> which was assailed through an appeal before the appellant authority. The appeal was dismissed vide Order dated 11.12.1994. Hence the present second appeal, which was admitted to regular hearing and notice was issued to the respondent, who has entered appearance through Mr. Mahammad Irfan, Advocate and contested the appeal
2. The learned counsel for the appellant in support of the appeal argued that the order of the Rent Controller was not passed in accordance with the provisions of sub-section (6) of section 13 of Ordinance 1959. In this behalf he has pointed out that neither the amount of arrears was marked out nor the date for payment of future rent was fixed in accordance with the statute nor it was recorded that in case of failure the defence of the appellant was likely to be struck of. Ft is added that the appellant was not given sufficient time to pay the arrears and there was a strong case for extension of time as the grand-mother of the appellant died, therefore, he cold not comply with the order. The. Learned counsel in support of the arguments has referred to the case reported as Shoukat AH v. Mst Gulzar Begum etc (NLR 1992 AC 762).
3. On the other hand, the learned counsel for the respondent argued that the appellant is a choronic defaulter as is clear from his conduct in the Courts below as well as in the present appeal ft is added that the order of the Rent Controller as to the payment of future rent is not strictly in accordance with the statute but as far as the arrears of rent were concerned the order was perfectly legal and vaHd, therefore, the appellant should have complied with the same. It is submitted that the order under section 13(6) of Ordinance 1959 consists of two ports. The first part pertained to the arrears while the latter to the future monthly rent and default of either of,the two is Gable to be visited by striking of defence. Therefore, even if to order as to the future rent is held illegal still die defence could be struck of for default in thw |>uyment of arrears of rent ft is maintained that the defence of the appellant was struck for non-payment f wears of rent, therefore, quite legal. j The net argument is; that this Court as well as the appellate Au&orityalsopos$essedpowerto pass orders under section 13(6) of the ordinance as to the deposit ofti*ut in view of the provisions' of section 15 of Ordinance .1959 ,and in case of default the appeal of the tenant is liable to be dismissed without any further proceedings. The learned counsel in the behalf has referred to the cases reported as M. Imamuddin v. Mst Surriya Khanum (PLD 1991 S.C 317) and Nazaemddin v. A.
Rashid (NLR 1984SCI 360). It is submitted that in fact the appellant was'directed Jby this Court vide order dated 12.1.1995 to deposit the arrears of rent ampuntingto Rs. 30,000/- before 31.1.1995 and future monthly rent from January 1995 onward before the 15th of each month. It is added that on 163.1995 it was pointed out that the appellant had not deposited the monthly rent as directed by Jhis Court when the learned counsel for the appellant requested for time to produce the receipts.
The appeal was adjourned to22.3.1995. The receipts were still not produced. There was yet another request for time to produce receipts. The appeal was accordingly adjourned fortoday but the appellant has not produced any receipts. It is therefore, prayed that the appeal be dismissed for this default.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the privisions of section 13 of the Ordinance and precedent cases. It is dear from the written reply of the appellant that he has not denied the relationship. The respondent has referred to the rent note which was not denied by the appellant The Rent Controller, therefore, proceeded to pass the order under sub-section (6) of section 13 of Ordinance 1959. The operative portion of the order reads as under:- "Accordingly, the respondent is hereby directed to deposit the monthly rent of the disputed shop at the rate of Rs.2500/- from January 1994 till today and at the same rate in future under section 13(6) of the Rent Restriction Ordinance. The respondent is further directed to deposit rent of the disputed shop from January 1994 to March, 1994 in lump sum excluding the amount of rent already deposited by him with the permission of the Court before 20.4.1994 and the respondent shall deposit the subsequent monthly rent regularly upto or before 10th of each month."
The main attack of the learned counsel for the appellant is that this order is not passed strictly in accordance with law therefore, it is illegal, and the default in its compliance would not result in stricking of the defence. In order to better appreciate the argument it is necessary to refer to sub- section (6) of section 13 of the Ordinance 1959. The same reads as under:- "(6) In proceeding under this section on the first date of hearing or as soon as possible after that date and before1 issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount appromimately and direct Mvlumuad Manir V Mst. Zahlda Parveen(Disc* *1 HaqChMdhary, J)#tbsC.C.
439#the#tbs[VoLxIv#thethat die same be deposited by the tenant before a date to be fixed for the purpose, Ifthe tenant makes default iatheeompliance dfsuchan order, then if he fe the petitioner* bis application shall be dismissed summarily and if he is the respondent his defence shah be struck-of and the landlord put into possession of the property without taking " any further proceedings in the ease. The Controller shall finally; determine the amount of rent due from the tennant and direet that the same may be paid to the landlord, subjeet ta adjustment of the approximate amount deposited by the tenant."
It is dear from the above provision that the following are requirements of valid order under sub- section
(6) of section 13 of Ordinance 19S9:- ' ^
(1) The order should be passed 0n the first date of hearing or as soon as possibiebut before the issuesare framed;
(2) - The rate of rent should be ascertained and in case of dispute, theamount should be determined approximately;(3) The tenant should be directed to deposit arrears of rent and if there is . Any dispute about the amount of rent due, the same shall be-n approximately determined;
(4) The tenant should be directed to deposit future monthly rent before the 15th of each month if the rent is payable in advance in accordance with written agreement between the parties and in other cases before the 15th of each succeeding month.
It is needless to record here that while ascertaining the rate of rent, the amount due and the period of default-(a) the Rent Controller should direct the parties to produce all documents relevant to the controversy;(b) they should be directed to admit or deny these documents; and(c) record better statements of the parties.
These steps would facilitate passing of a just and proper order under section 13(6) of Ordinance, 1959. It should be kept in mind that default in compliance with the direction or part thereof results in striddng of defence. Therefore, the order should be absolutely dear and strictly in accordance with the provisions of Ordinance, 19S9 otherwise the defence would be liable to be struck down. In this behalf, reference may be made to AH Janv. Shujauddin (PLD 1985 Karachi 698). ^ 6. Now if the order dated 12.4.1994 of the Rod Controller is looked at in the light of the above discussion then it is dear that the direction as to the deposit of future monthly rent is patently illegal. The statute provides for direction to the tennant to deposit the moiiiLr, rent before the l5th of each month whereas is the order of the Rent Controller the date fixed is upto or before 10th of each month. Therefore, its violation cannot result in forfeiture of tenancy.
7. Now coming to the .Arrears of rent It is dear from the above discussion regarding scope of section 13(6) of Ordinance 19S9 that the Rent Controller should have worked qa the amount tentatively as to the alleged arrears before directing the appellant to deposit. This was not done. It is also clear from the above part of his order that in the earlier portion he had directed the appellant to deposit the rent from January 1994 til today. Tie order was passed cm 12.4.1994 bat in the very neat sentence it was directed that the arrears from January 1994 to March 1994 be deposited. The order was seif contradictory and likely to confuse tenant
8. . He nest question which comes for determination is that if either of the two directions is illegal and not passed in accordance with the provisions of Ordinance 1959 then whether the whole order is nullity hr only that part? I am mindful of the fact that there may be cases where orders as to arrears of rent wonld not be required at all, but the fact remains that the default in respect of areas or future monthly rent or both would resub in striking of defence. Therefore, if either of the two parts or directions i; not m Sm with the provisions of section 13(6) of Ordinance 1959 then the remaining order or direction would be till binding as default of each direction entails the puuality of striking of the defence of the tenant Therefore, the argument that the order was admittedly bad in respect of the arrears of rent, therefore, liable to be stmk down as a whole has no merit The only part of die direction which is not in accordance with the provisions would be invalid and not the whole order. I have examined this question in WJ*337 of 199S decided on 22.3.1995 with reference to the judgments reported as Fazal Din v. Dawoodur Rehman (1953 CLC 470) (NLR 1987 U.C. 38), Khari Muhammad Nizamani v. Abdul Qaddus (PLD 1965 (W.P) karachi 367), Kewabam Dayaram Shahani v. Nawab AM (PLD 1978 Kar. 79) and Salahuddin Butt v. Muhammad Tariq (PLD 1981 Lahore 132).
Suffice it is to refer here to the following portion in the case of Fazal Din (supra):- "*The defect pointed out by the learned counsel for the appellant in the present case in the order of Rent Controller is not such which could render the whole of the order as void so that its non-compliance could be ignored. At best the result of failure on die part of the Court to specify the date for deposit of the arrears of rent by the Rent Controller would be that in the even of default by the tenant in depositing the arrears of rent in Court, the defence of tenant could not be struck of for such noa-complaince but for that reason the noncompliance of a vjid direction of Rent Controller with regard to payment erf monthly rent could not be ignored. In the case of kewalfam Dayaram Shahani v. Nawab Ali (PLD 1978 Kar. 79), it was held by a learned Single Judge of this Court that two provisions about the deposit of rent due and future rent were not comulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as wefl as future rent. It was further held in that case that if the diedon with regard to arrears of rent was found to be defective, the defence of the tenant could still be struck of for [Voi. Xiv Muhammad Munir V Mst. Zahida Parveen * C.C. 441(Ihsaa ul Haq Chaudhary, J)non- compliance of a valid direction for deposit of monthly rent. This view has been followed by a learned Judge of the Lahore High Court in the case of Salahuddin Butt v. Muhammad Tariq (PLD 1981 Lahore 132). I am in respectful agreement with the view expressed in Kewalram Dayaram's case. The Courts below were therefore justified in striking of the defence'of the appellant in the case as he was found to have committed default in payment of rent for the months of December, 1978, January and February, 1979."
It is interesting to note here that divergent views were once again examined in the case of Ali Jan v.
Shujauddin (PLD 1985 Karachi 698) and the view expressed by Mr. Justice Saeed-uz-Zaman Siddiqui, J. (as his Lordship then was) was followed. It is made clear that defective order is not the same thing as the order without ' risdiction. This distinction has been made clear in the case of M.
Imamuddir. (supra).
9. Now coming to the application for extension of time moved by the appellant before the Rent Controller. The Rent Controller has directed the appellant to deposit the arrears before 20th April, 1994. The application was moved on 20th April, 1994 whereas he was directed to deposit the arrears before tfie said date. There was neither the date of death of his grand-mother given nor the Death Certificate appended, therefore, the same was rightly dismissed by the Rent Controller.
10. Now reverting back to the appeal in hand. The learned counsel argued that the appeal is liable to be dismissed summarily on account of default in the payment of future rent by the appellant as directed by the Rent Controller. The Necessary background of the object is that this appeal came up for limine hearing on 12.1.1995 when it was admitted to hearing in view of the judgment in Shoukat Ali v. Mst Gulzar Begum jetc. (NLR 1992 AC 762) and the impugned order was suspended subject to the appellant depositing the arrears of rent from January 1994 to December 1994 amounting to Rs. 30,000/- and monthly rent from January 1995 onward before the 15th of each month regularly. The appellant has complied with the first part of the order as to arrears but failed to deposit the future monthly rent as directed.
The preliminary objection raised by the learned counsel for the respondent is valid. The same is upheld and respectfully following the view of the Hon'ble Supreme Court in the case of Imamuddin (supra) the defence of the appellant is struck of.
11. Before parting with this judgment it is noted with great regret that the Rent Controller proceeded with the matter right from the order under section 13(6) of Ordinance 1959 in most casual and careless manner. The operative portion of the order dated 5.5.1994 is a classic example and this type of orders are vquite frequent and for this reason this judgment has to be made detailed, It is expected that in future the orders will be passed with due care. The final order dated 5.5.1994 passed by the Rent Controller is also not in accordance with the provisions of Ordinance 1959, therefore, the learned District Judge is directed to have close look on the conduct and work of this Officer for the next six months and submit report to the Registrar of this Court as to his observations in this behalf. l2. The upshot of the above decisions is that since the appellant has failed to deposit the future rent as directed by this Court, therefore, this appeal is dismissed with costs.