' This second appeal under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 is directed against the judgment/order dated 11-10-1995 passed by the learned Additional District Judge, Lahore, whereby the first appeal of the appellant herein was dismissed and the order dated 13-3-1995 passed by the learned Rent Controller, Lahore, was affirmed resultantly, the appellant was ordered to be evicted from the premises in dispute.
2. The facts forming background of this appeal are that the respondent being the owner landlord of a garrage comprised in property No,55-D, Gulberg II, Lahore, filed an ejectment application against the appellant on the ground that the same is required bona fide for the use and occupation of his son, namely, Muhammad Afzal, who intends to run a general store therein. The said ejectment application was resisted by the appellant on the grounds which may not be relevant for the present controversy.
3. It was on 5-3-1984 that the learned Rent Controller passed a usual order under first part of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 thereby observing that the appellant had admitted the rate of rent of Rs,800 p.m. As also the relationship of landlord and tenant, hence directed to deposit the future monthly rent before the fifteenth day of succeeding month. The issues were also framed and the case was set down for recording evidence of the respondent. The ejectment application, was however, dismissed by the learned Rent Controller on 30-10-1985 which order was affirmed in appeal by the learned Additional District Judge on 8-6- 1987. The respondent assailed the above-said order by way of filing Writ Petition No,1288 of 1992 which was accepted by my learned brother Malik Muhammad Qayyum, J. On 8-11-1993 with the result that the case was remanded to the learned Rent Controller with the direction that the same be disposed of within four months. In post remand proceedings, the respondent filed an application on 24-10-1994 thereby praying that the appellant be directed to produce the receipts of rent in Court and in case that he had not deposited the rent due, his defence be struck off. As a matter of fact, this application proceeded on the ground, though not explicitly pleaded that in view of the amendment introduced in the Punjab Urban Rent Restriction Ordinance by way of section 5- A whereby it is ordained that the rent of commercial building shall automatically be increased after a lapse of three years from the previous increase or the fixation of rent as the case may be, the appellant had become a defaulter under section 13(6) of the Rent Restriction Ordinance because he had not deposited the increase in the rent as envisaged in section 5-A ibid.
4. The said application was resisted by the appellant who vocifariously maintained that he had been depositing the rent regularly and in accordance with law. The learned Rent Controller, however, proceeded to accept the abovesaid application vide his order dated 13-3-1995 and consequent thereupon the ejectment application was also accepted with the result that the appellant was ordered to be evicted from the premises in dispute. The abovesaid order was affirmed by the learned Additional District Judge vide his order dated 11-10-1995. Hence this second appeal.
5. It was argued by the learned counsel for the appellant that the total rent as per direction contained in the order passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, having been deposited in time by the appellant, it could not be maintained that he had not complied with the said order. The plea that the appellant had committed default in so far as automatic increase in the rent was concerned was sought to be contested on the ground that the provisions contained in section 5-A of the said Ordinance could well be taken as a ground in an independent ejectment application and that the same could not be deemed to have formed part of the order under section 13(6) of the Ordinance aforenoted, therefore, the defence of the appellant could not be struck off on that ground. It was also added that unless the learned Rent Controller had proceeded to pass a second order under section 13(6) of the said Ordinance, the appellant could neither be termed to be a defaulter within the meaning of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 nor his defence could be struck off.
6. The learned counsel for the respondent on the other hand maintained that since the increase in rent as provided under section 5-A of Ordinance VI, 1959, has been declared to be automatic and it has been ordained that the arrears becoming due as a result of the increase of usual rent, unless paid earlier, be deemed to be rent due under clause (1) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment)
Ordinance, 1990, therefore, the appellant had become defaulter by not paying the "rent due".
' In order to appreciate the question being raised by the learned counsel for the appellant and contested by the learned counsel for the respondent, it would be necessary to peruse and appreciate the various sections alongwith their sub-clauses of the Punjab Urban Rent Restriction Ordinance, 1959 so as to decide the controversy between the parties. Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 reads as under:-- "In proceedings 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 that 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 respondent, his defence shall be struck off and the landlord put in possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant." (Underlining is mine).
A plain reading of section 13(6) of the said order would show that the order to be passed thereunder comprises two directions in that, the tenant is primarily directed to pay all the rent due from him till the date of passing the order and at the same time further directed to deposit regularly till the final decision of the case, the monthly rent due from him before the 15th day of each succeeding month. The first question which falls for determination is as to what is understood by the words "rent due" and the interpretation thereof as used and incorporated in the various clauses of Ordinance VI of 1959. Ordinarily it means the rent which is factually due but in legal parlance it is understood to mean the rent which is legally due. The expression "rent due" as used in relation to arrears of rent fell for interpretation in the case of Ashfaq-ur-Rehman v. Ch. Muhammad Afzal PLD 1968 SC 230 and it was held that the word "due" would carry the connotation of due in law or recoverable in action at law. The age old principle of law pertaining to limitation prescribed for recovery of debt etc. Was given effect thereby ordaining that if the remedy to recover the rent had become barred, the rent remaining in arrears could not be called as "rent due". In nutshell it was ruled that the rent due would mean the rent for the period of 3 years preceding the commencement of any action by the landlord against the tenant, be it an ejectment application or a suit for recovery of rent. The other question regarding the monthly rent due has gained importance in the recent years because of an amendment introduced in the Urban Rent Restriction Ordinance, 1959 whereby section 5-A was added by Punjab Act IV of 1991. Section 5-A as introduced in the said Ordinance reads as under:-- "5-A. Increase of rent of non-residential buildings.--(1) The rent of a non-residential building shall stand automatically increased at the end of every three years of its tenancy by twenty-five per cent. Of the rent already being paid by the tenant.
(2) The first increase under subsection (1) shall accrue--
(i) on the first day of July, 1989, in the case of a tenancy existing for three years or more preceding that date; and
(ii) on the completion of three years of tenancy in the case of a tenancy which has not been existing for three years on the first day of July, 1989.
(3) Where, during the period of three years, in case mentioned in subsection (2)--
(i) the rent has already been increased by an amount less than twenty-five per cent of total rent, the amount of such increase shall be deducted from the increase under subsection (1); and
(ii) If the rent has already been increased by an amount equal to or more than twenty five per cent.
Of the total rent, no increase under subsection (1) shall accrue until the expiry of three years from the date of such increase.
(4) The arrears becoming due as a result of the rent under this section shall, unless paid earlier be deemed to be rent due under clause (1) of subsection (2) of section 13, on the expiry of sixty days from the date of coming into force of the Punjab Urban Rent Restriction (Amendment) Ordinance, 1990 (XIII of 1990).
(5) All proceedings arising from the provisions of sections 4 and 5, in respect of a non-residential building, and pending before the Controller or the Appellate Authority or any Court shall abate.
(6) The provisions of subsections (1) to (5) shall not apply if a landlord and tenant agree to increase the rent by an agreement in writing executed before the Controller.
7. It is so obvious from the plain reading of the aforenoted sections as introduced in Ordinance, VI of 1959 that the rent of a non-residential building shall stand automatically increased at the end of every three years of tenancy by twenty-five per cent. Of the rent already being paid by the tenant.
Subsection (2) of the said section and the various sub-clauses thereof deals with the various eventualities forming basis of increase as envisaged by section 1 of section 5-A of Ordinance ibid. The overall effect of this increase has been dealt in subsection (4) of the said section whereby it is ordained that the arrears having become due as a result of the increase under the said section unless paid earlier, be deemed to be rent due under clause 1 of subsection (2) of section 13 on the expiry of sixty days from the date of coming into force of the said amendment whereby section 5-A has been added in the text of Ordinance VI of 1959. The intention of Legislature is manifest from the words used in subsection (4) that the arrears remaining due as a result of increase as ordained by subsection (1) would be actionable under clause 1 of subsection (2) of section 13 meaning thereby that it would be an added ground for seeking eviction of a tenant who had not paid the arrears becoming due as a result of the increase of rent under section 5-A. The Legislature in its wisdom has omitted or avoided to say that the said arrears would also be deemed to be rent due under subsection (6) of section 13 or for that matter generally under section 13 of the Ordinance.
Obviously, the intention is that the arrears becoming due as a result of increase of rent under section 5-A shall be actionable under clause 1 of subsection (2) of section 13 alone and not under any other section of the said Ordinance. There appears to be lot of logic behind it for the penal action as contemplated by subsection (6) of section 13 could only be commenced and imposed upon the tenant when a positive order calling upon the tenant to pay the arrears as also the future monthly rent had in fact been passed by the learned Rent Controller. It is so obvious from the plain reading of first part of section 13(6) of the Rent Restriction. Ordinance, 1959 that apart from direction in regard to arrears of rent, the tenant is also to be directed to deposit regularly the future monthly rent till the final decision of the case before 15th day of each succeeding month, the monthly rent due from him, and before passing such an order, if there be a dispute about the deposit of rent, he has to determine the same approximately and then direct the tenant to deposit the same. The second part of section 13(6) (ibid) then envisages that non-compliance of the said order shall be visited with penalty of striking off the defence of the tenant. This could only be done, if there be an order passed by the learned Rent Controller. Obviously, the subsequent increase in rent after the passage of 3 years from the previous increase or from the date fixed in section 5-A could not be read into the order passed under section 13(6) nor form basis of the said order so as to entail the penalty of striking off the defence of the tenant. As a matter of fact there being no order as such, it would be quite harsh and even illogical to say that the tenant had not complied with the order passed under section 13(6) (ibid) therefore, his defence be struck off.
8. As far the plea that the increase in rent as envisaged by section 5-A of the Urban Rent Restriction Ordinance VI of 1959 is automatic and the same having automatically formed part of the monthly rent due coupled with the plea that it is for the tenant in the capacity of his being the debtor to find the creditor to pay him the rent, suffice it to say that the Legislature in its wisdom having not ordained that the arrears becoming due because of its increase would also be actionable under section 13(6), the scope thereof cannot be enlarged so as to make it actionable under section 13(6) of the Ordinance.
9. Since the increase in rent as envisaged by section 5-A is not found to be actionable under section 13(6) of the Urban Rent Restriction Ordinance VI of 1959 and the fact that no order under first part of section 13(6) (ibid) had been passed thereby directing the tenant to deposit the future monthly rent at the increased rate afore-referred, the striking off defence of the appellant was not at all lawful, hence the orders of the two Courts below are not sustainable.
10. In result this appeal is allowed and the order dated 13-3-1995 passed by the learned Rent Controller, Lahore as also the order dated 11-10-1995 passed by the learned Additional District Judge, Lahore, are set aside and the case is remitted to the learned Rent Controller who shall proceed to decide the same on merits. Since the matter has already taken very long, therefore, the learned Rent Controller is directed to dispose of the main ejectment application within a period of two months from the date of communication of this order. There shall, however, be no order as to costs.