MIR MUHAMMAD NAWAZ MARRI, J.- This appeal is directed against the order dated 30th June, 1994, passed by Learned Civil Judge-Ill cum Rent Controller Quetta, whereby the application filed by the appellants for striking of defence of respondent was dismissed.
2. The facts concisely stated are that the appellants filed an eviction application against the respondent on the ground of personal requirement and default.
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3. The application was contested by the respondent by way of filing rejoinder stating therein that shop in question was booked on hire purchase basis by one Abdul Bari and subsequently with the consent of the appellants the propriety rights was sold to respondent for a consideration of Rs.
7.80,000/-. It was further averred that appellants had only right of monthly rent of the shop and they have no entitlement for eviction of respondent. On 4.12.1993, the learned trial Court passed an order under Section 13(6) of the Ordinance whereby the respondent was directed to deposit rent from January 1993 till the date and it was further directed to deposit future rent before 15th day of every succeeding month. The respondent instead of depositing the rent in the name of appellants, deposited the rent in the name of one Hisam-ud-Din. On 10.5.1994, an application was moved in the Court for striking of the defence of the tenant on the ground of noncompliance of direction of the Court passed on 4.12.1993. A detailed rejoinder to this application was filed by the respondent stating therein that Haji Abdul Ghafoor appellant No. I accepted the second part of arbitration award and received Rs. 1,00000/- (Rupees on lac) alongwith the rent of January 1993, through Arbitrator Haji Rozi Khan. It was further stated that Haji Rozi Khan, had directed him to pay the rent to the brother of appellant No. I namely Hisam- ud-Din. He further stated that the receipt of rent of month of January 1993, also issued by the said Hisam-ud-Din, therefor, in good faith the respondent deposited the rent in the name of Hisam-ud-Din. He further prayed for condonation of the default and he undertook that he would deposit the rent in the Court in the name of appellants.
4. The learned Rent Controller dismissed the application and default was condoned on 30.6.1994.
The present appeal has been filed against the said order.
5. I have heard Mr. Tariq Mehmood learned counsel for the appellants and Mr. Tahir Muhammad Khan learned counsel for the respondent.
Mr. Tariq Mehmood Advocate at the very out-set pointed out that the respondent has admitted the relationship of land lord and tenant between the parties. The order passed under Section 13(6)) of the Ordinance on 4-12-1993 was admittedly violated by the respondent by not depositing the rent in the name of appellants. In this regard an application was filed by the appellants for striking of the defence of the tenant which was contested by the respondent, the learned trial Court illegally condoned the default as under the law the Controller had no power for condonation. He has cited the following case laws in support of his contention. i. SCMR 1986 page 261 ii. SCMR 1990 page 557 iii. SCMR 1968 page 941 On the other hand Mr. Tahir Muhammad Khan, has vehemently opposed the appeal on the ground that the directions of the Court was not violated, the rent was deposited promptly in the Court.
Since Hisam-Ud-Din being brother of one of the appellants used to receive the rent on the direction of arbitrator Rozi Khan, therefore, the rent was deposited in his name which was not with ulterior motive rather in good faith. He further argued that this submission of the respondent was accepted by the learned Rent Controller and the default was rightly condoned.
6. I have considered the arguments advanced by the learned counsel appearing for parties and perused the record of the case carefully. Admittedly the relation ship of landlord and tenant exist between the parties. The learned Rent Controller passed an order on 4.12.1993, for depositing the rent from January 1993, till date and further directed that the further rent be also deposited in the Court.-Respondent in pursuance of the order dated 4.12.1993 instead of depositing the rent in the name of appellants, deposited the same in the name of one Hisam-ud-Din who was brother of one of the appellants.
Section - 13(6) is re-produced hereinbelow :- "In proceeding under this section on the first date of hearing or as soon as possible after that date and before 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 approximately and direct the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case".
Bare perusal of the above quoted section indicates that if the respondent fails to comply with the directions of the Court his defence should be struck off and landlord shall be put into possession of the property without taking any further proceedings in the case. The provision of section 13(6) of the Ordinance are express and mandatory. When the wilful default is proved by the appellant (s) then the Court has no option or alternative but to direct delivery of the possession. There are few exceptions to this Rule i.e. That the tenant has to show that he could not company with the directions of the Court under the circumstances which were un-avoidable and beyond his control or the tenant is able to show that the Rent Controller has no jurisdiction to, try the case or the order passed by him is un-vailed, therefore, non-compliance cannot result in his eviction.
7. In the present case the Counsel for the respondent contended that the directions of the Court were complied by depositing the rent in the Court, therefore, no default had been committed. No doubt the respondent deposited the rent in the Court but in the name of one Hisam-ud-Din. The learned counsel for the respondent failed to show that Hisam-ud-Din was either authorised by the appellants to collect rent or the shop was let-out by him, therefore, such deposit is not in conformity with the Rent Controller's order. In case Bhadur Khan and others Versus Choudhary Muhammed Hussain reported in 1991 SGMR page 429, the Hon'ble Supreme Court of Pakistan observed as under:- "The petitioners have not denied that the respondent No. I is their landlord. The petitioners according to their own showing remitted the rent through money order in the name of Iftikhar Ahmed who has neither let out the premises to the petitioners nor was authorised by the landlord to collect the rent on his behalf. The learned counsel stated that Iftikhar Ahmed is the son of the landlord but this Act has not been established. Even otherwise, it is immaterial as the admitted position is that Iftikhar Ahmad is not the landlord, therefore, remitting the rent to him does not absolve the petitioners of their liability. The petitioners started depositing rent in Court with effect from May 1981 to February 1988 in favour of Muhammad Hussain son of Imam Din. The rent was deposited in the name of wrong person. Admittedly, Muhammad Hussain son of Wali Dad is the landlord. The petitioners have themselves given the father's, name of Muhammad Hussain as Wali Dad. The deposit of rent in the name of wrong person does not amount to tendering the rent in favour of the landlord. The learned High Court has taken into consideration that inspire of the order passed by the Rent Controller under section 13(6) whereby the petitioners were directed to deposit the rent but inspire of such direction the petitioners deposited the rent in the name of .Muhammad Hussain son of Imam Din. This is another violation of the order of the Rent Controller. The landlord could not receive the rent deposited in favour of a wrong person. The petitioners with full knowledge of these facts have committed default, therefor, the finding of the Courts below on the question of default is not open to any exception.
The facts of the present case are identical to that mentioned here-in-above to the extent that in the present case the rent was deposited in the Court in the name of brother of appellant No. 3 whereas in the case mentioned/referred above, the money/rent was deposited in the name of son of landlord which was not regarded as lawful compliance of the Court order. In case Malik Manzoor Ahmed Versus Sardar Muhammad reported in 1991 CLC page 877 Lahore name of landlord was not mentioned in column No. 3 of the challan, as such, it was held that it would not cure the defect. In the instant case respondent deposited the rent in the name of Hisam-ud-Din, though the No. Of shop and address was correctly given, therefore, it cannot be treated as bonafide mistake. The Hon'ble Supreme Court of Pakistan in case Ghulam Mustafa Versus Waqar Ahmed reported in 1980 SC, 9 has held as under:- "The point of not depositing the amount in the specific name of the landlord who sues for ejectment and at whose instance and for whose benefit the order of deposit of rent is made, came up before this Court in Haji Allah Ditta v. Mst, Shahzadi Bilqis and another (C.P.S.L.A No. 303 of 1979 decided on 16.6.1979). In that case, the tenant just deposited the amount but not in the name of the landlord concerned and as a matter of fact did not show the name of any person for whom the amount was deposited. It was argued that such a deposit did not suffer from any infirmity and the Courts below were wrong in holding otherwise. The contention was not accepted and it was held that in the circumstances the tenant had defaulted in the payment of rent by not complying with the order of the Controller.
The actual passage in that judgment, which is instructive on the subject in hand, reads as follows:- "The learned counsel for the petitioner argued firstly that he had not defaulted in payment of rent; that he had been depositing the rent in the treasury and the only fault found with the same by the learned Rent Controller was that the name of respondent landladies was not mentioned in the challan forms. The counsel attempted to argue that the petitioner had not mentioned the names of the landladies because the relevant form did not contain any column for that purpose. We have examined the Challan Form and find that this contention is not correct. The omission to mention the names of the persons on whose behalf the rent was being deposited appears to be deliberate and therefore the deposit of the money by the petitioner in the treasury cannot be regarded as lawful tender of the rent. The learned Courts below were, therefore, justified in holding that the petitioner had defaulted in payment of rent".
7. Now adverting to another objection raised by learned counsel for the respondent in respect of maintainability of the appeal. In this regard relevant para of the judgment of this Court in F.A.O No. 98/93 is the complete answer which is given here-in-below:- In order to resolve the controversy, assistance may be taken from the observations of honourable Supreme Court from the instructive judgment (ibid). It was observed on page 268, para-5 as under;- "This precise question came up for consideration of this Court in Messers Fakhri Printing Press V.
Mst. Rubab Bai and others C.P.S.L.A No. K-109 decided on 27th February 1980, and it was held that the order of the Rent Controller passed under section 13(6) of the Ordinance refusing to struck off tenant's defence is as much appealable as the one striking out tenants defence, In view of the fact that this Court has already, decided the question upon which leave was granted, Mr. Abdul Majid learned Counsel for the respondent frankly, conceded that he is unable to defend the point on which the second appeal filed by the respondent was allowed by the High Court. Since, as already held by this Court appeal against the order of the Rent Controller passed in this case was competent in law, the impugned judgement of the High Court is set aside".
It is thus clear that an appeal is competent against an order rejecting an application for striking of defence. The controversy is thus settled accordingly".
8. Next point raised by learned Counsel that the respondent had purchased the property on hire purchase basis after paying in a heavy amount of Rs. 7,80,000/- (Rupees Seven lacs and eighty thousand) therefore, the appellants are only entitled to receive rent and they have no right to get the tenant ejected. It may be seen that the relationship of landlord and tenant is not denied.
Admittedly the respondent accepted the appellants as landlords and he has been paying the rent to them. In this behalf the relationship between the appellants and respondent to be governed by the provision of the Ordinance. The Law does not recognize "PAGRI OR HIRE PURCHASE', the mere fact that the respondent had paid a sum of Rs. 7,80,000/- (Rupees Seven lacs and eighty thousand) in addition to rent would not take the jurisdiction of Rent Controller in a case in which the relationship of landlord and tenant is not denied or it is proved that the occupant of premises pays rent to the owner of the premises as a consideration of using the premises (1993 S.C.M.R page 200).
Up shot of the above discussion is that appeal is accepted. Order dated 30th June, 1994, passed by learned Civil Judge-III/Rent Controller is set aside. Since premises in dispute is a commercial concern as also the respondent is running shop in the premises in dispute and he will take some time for making alternate arrangement, as such, I allow one year time to the respondent to handover vacant possession of the shop in dispute to the appellants.
With the above observation appeal stand disposed of. Parties shall bear their own cost.