' The above captioned appeals i,e, S.A.O. No,48 of 1996 Tanveer Zia v. Sheikh Muhammad Bashir and S.A.O. No,49 of 1996 Mst. Shireen, etc. v. Mst. Shafqat Firdaus, etc. Involving common questions of law and facts are being disposed of through this common judgment.
2. The appeals under reference have arisen out of the ejectment petitions decided by the learned Rent Controller, Lahore. The orders under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 were passed by the learned Rent Controller on 13-1-1992 in the ejectment petitions out of which these appeals have arisen. In the ejectment petition pertaining to S.A.O. No,48 of 1996, the following order was made on 13-1-1992.-- {{URDU TEXT}} ' In the ejectment petition pertaining to S.A.O. No,49 of 1996, the following order was made on the same day:- {{URDU TEXT}}
3. The issues in both the ejectment petitions were framed and the trial proceeded for their settlements. The respondents/ landlords in both the petitions moved an application on 8-6-1995 for striking off the defence of the appellants/tenants for the non-compliance of the order, dated 13- 1-1992 made under" section 13(6) of the Punjab Urban Rent Restriction Ordinance. The petition was contested by the appellants/tenants 'on the ground that the rent was being deposited regularly in accordance with orders made on 13-1-1992, as such, there was no ground for striking off the defence. In addition to that, it was contended that the orders aforesaid determining tentative rent were also illegal but were yet complied with. Likewise it was alleged that the future enhanced rent in view of the provisions contained in section 5-A(2) of the Ordinance was not liable to be charged during the pendency of the ejectment petition nor any default would be attracted if the enhanced rent was not deposited. In this respect, it was alleged that the proper issues were framed and after the settlement of those issues, the order thereon would be complied with.
4. The learned Rent Controller dismissed the petition of the landlords for striking off the defence on the ground that the respondents deposited the rent in the Court in terms of the orders, dated 13-1- 1992 and that there was nothing in the aforesaid orders regarding the future enhanced rent as intended by section 5-A(2) of the aforesaid Ordinance. It was also 'observed that the following issues were framed to settle the controversy between the parties on the points in dispute:-- "(6) Whether the respondents wilfully defaulted in the payment of due rent to the petitioners within the covering of the section 5-A(2) of the Ordinance ibid ? O.P.A.
(7) Whether the respondents willfully defaulted in the payment of due rent to the petitioner from August, 1990 onwards ? 0 P . A . "
5. In view of the aforesaid issues, the learned Rent Controller refused to strike off the defence till the controversy was finally determined.
6. The landlords/respondents feeling aggrieved of the refusal to strike off the defence filed appeals before the appellate Court which accepted the same and struck off the defence of the appellants/tenants directed their ejectment from the disputed premises. Feeling aggrieved of the aforesaid orders of the learned first appellate Court, the appeals under reference have been filed.
7. Learned counsel' for the appellants has submitted that the orders passed by the learned Rent Controller was very fair and just as there was no wilful default in the payment of rent nor the respondents/landlords were allegedly entitled to receive the enhanced rent at the rate of 25% as provisions contained in section 5-A(2) of the Punjab Urban Rent Restriction Ordinance were not attracted on account of settlement of rent between the parties in the previous litigation. Apart from that, the appellants/tenants have been allegedly paying the rent regularly after the order passed under section 13(6) on 13-1-1992 and as such, there was no default so as to attract the penal provisions for eviction of the appellants/tenants. Finally, the legality of the impugned order was also challenged and its non-compliance, if any would not allegedly attract the striking off the defence. Reliance was placed on Muhammad Tufail v. Mst. Viran Bibi 1993 CLC 655 (Lahore); National Development Finance Corporation, Shahrah-e-Quaid-e-Azam, Lahore v. Shaikh Naseem- ud-Din and 4 others PLD 1997 SC 564; Din Muhammad v. Umar Hayat and others 1981 SCMR 326; Syed Toghan Shah v. Shah Muhammad Madani Abbas PLD 1964 (W.P.) Pesh. 101; Muhammad Ashaq v. Aziz-ur-Rehman and 2 others 1993 CLC 2293 (Peshawar) and Muhammad Ali v. Shafiq Ahmad 1992 MLD 801 (Lahore).
8. While relying on the aforesaid authorities, it was contended by the learned counsel for the appellants that the mere noncompliance of the order made under section 13(6) would not automatically attract the penal provisions to strike off the defence and to order eviction until and unless something more was shown i,e, that the default was not only wilful but intentional. The object of the order made under section 13(6) of the Punjab Urban Rent Restriction Ordinance was to secure the rent for the landlords and not to penalize him. It was alleged that in the instant case, there was no default because the future rent was regularly being paid despite of the fact that the order directing the tentative rent was itself bad in the eyes > of law. However, nothing was said that the arrears of the rent w,e,f, 1-7-1989 till the making of the order on 13-1-1992 were also paid by the appellants/tenants in compliance with the aforesaid order.
9. Learned counsel for the respondents contended that the provisions contained in section 13(6) of the Rent Restriction Ordinance were mandatory in nature because in case of default in compliance of the aforesaid order, the Rent Controller had no option but to strike off the defence. In the instant case, the learned Rent Controller allegedly fell in error not to strike off the defence although it was clear that the order dated 13-1-1992 was not complied with nor any cogent reason was advanced for its noncompliance. On the contrary, it was wilfully contended by the appellants/tenants while replying to the petition under section 13(6) that the order made on 13-1-1992 was illegal and could not be passed. The aforesaid order was allegedly passed on 13-1-1992, whereas, its legality was challenged only after the default was pointed out in the application moved under section 13(6) of the Rent Restriction Ordinance, of which reply was filed by the appellants/tenants on 29-10-1995. It was, therefore, contended that the appellants/tenants could not take up the contradictory pleas after such a long time that the order, dated 13-1-1992 was illegal but despite of its illegality, they had been complying with the same regularly. It was, accordingly alleged that the non-compliance of the order passed by the Rent Controller on 13-1-1992 was not only wilful but contumacious and as such, there was no necessity to proceed with the trial further or to frame any issue whether the noncompliance of the aforesaid order amounted to wilful default or not. Reliance was placed on Haji Fazal Karim v. Additional District Judge, Lahore and others PLD 1982 SC 306, Muhammad Amin v. Ghulam Nabi and 2 others PLD 1990 SC 1201, Mushtaq Hussain v. Muhammad Shafi 1983 CLC 2813 (Lahore), Jan-e-Alain v. Abdul Hamid 1983 CLC 3230 (Karachi), Mirza Mansoor Baig v. Haji Karamat Ali and others PLD 1995 Lah. 280, Begum Capt. Mirza Ghulam Sarwar v. District Judge Jhelum and others 1987 SCMR 25, Asif Chughtai v. Mrs. Zile Huma and others 1995 SCMR 741, Muhammad Rafique v. Sh. Ghulam Rasool 1993 SCMR 784, Muhammad Hassan Khan and others v. Mirza Abdul Hamid 1981 SCMR 799, Haji Fatal Karim v. Additional District Judge, Lahore and others 1981 SCMR 1073, Abdul Qayyum Paracha v. Ghulam Hussain, etc. 1984 SCMR 580 (Supreme Court of Pakistan).
10 In addition to that, it was also contended that the appeal against the refusal of the striking off the defence was competent and valid as it would be competent in the case of striking off the defence of the tenants. Reliance was placed on 1986 SCMR 261 Mrs. Zubaida Begum v. Mrs. S.T. Naqvi and 1990 CLC 661 (Karachi) Mrs. Khairun Nisa and another v. Mrs. Mehrun Nisa.
11. I have considered the foregoing submissions made by learned counsel for both the sides. First of all, it is to be seen whether any default was committed by the appellants/ tenants in respect of the orders, dated 134-1992 passed under section 13(6) of the Rent Restriction Ordinance, 1959. The perusal of the aforesaid orders which have been quoted above, would' show that in both the cases, the order was passed in two parts. The first part related to the arrears of the rent which were to be paid at the rate of Rs,875 per month or Rs, 250 per month in both the ejectment petitions w,e,f, 1-7- 1989 to 26-3-1992 and the other part related to the future rent which would be deposited at the same rate before the 15th of each succeeding month. It is, to be seen if the aforesaid order has been complied with. Although it is contended by the appellants/tenants in their reply to the application under section 13(6) that they had been depositing the rent regularly but the perusal of the receipts placed on record would show that despite of the order made on 13-1-1992 that the rent was to be deposited at the afore said rate in each of the ejectment petition w,e,f, 1-7-1989 but there was nothing to show that in fact the arrears were deposited at the rate of Rs,875 or Rs,250 per month respectively in each of the ejectment petitions. On the contrary, the photo copies of the challan forms placed on record of each of the case would show that the rent was deposited at the old rate of Rs,700 per month and not at the rate of Rs,875 per month as determined by the Rent Controller in the ejectment petition filed by Muhammad Bashir, whereas, in the other ejectment petition, the rent was paid for the afore said period at the rate of Rs,200 per month instead of Rs,250 per month as directed by the Controller in the order aforesaid. The compliance of the order, dated , 13-1-1992 in both the cases was made for the first time w,e,f, 10-2-1992 as would be clear from the photo copy of the challan form placed on record that the rent of two months i,e, January and February of 1992 was deposited on the aforesaid date which amounted to Rs,1,750 and thereafter, the rent was being deposited in accordance with the order of the Rent Controller made on 13-1-1992. Likewise, the compliance of the aforesaid order in the other ejectment petition was made from the aforesaid date i,e, 10-2-1992 when the due rent was deposited at the rate of Rs,250 instead of Rs,200 per month. However, prior to that rent was paid at the rate of Rs,200 .Per month and the deficiency in the arrears was never made up nor any explanation was ever given in respect of non-compliance of the order of the Controller, whereby, the appellants/tenants were bound to deposit the rent at the rate of Rs,875 and Rs,250 respectively per month w,e,f, 1-7-1989.
Although the rent at the old rate of Rs,700 and Rs,200 per month was deposited but it was incumbent on the appellants/tenants to make up the arrears in view of the orders tentatively fixing the rent on 13-1-1992. Having failed to do so without any explanation or just cause, it would be considered that the failure on the part of the appellants/tenants was not only wilful but also contumacious.- The mere fact that there was some sort of patch up in some previous litigation of which no detail is mentioned, the liability cannot be washed out to comply with the order tentatively fixing the rent on 13-1-1992. It is particular so because the rent deed executed between the parties shows the agreed rent between the parties is Rs,700 and Rs,200 per month respectively in each of the ejectment petitions. This rent was raised from Rs,700 to Rs,875 per month in the case of Bashir, whereas, in the other ejectment petition, it was raised from Rs,200 to Rs,250 per month vide tentative orders passed by the Rent Controller in view of the provisions contained in section 5- A(2) of the Rent Restriction Ordinance. The appellants/tenants did not raise any objection for more than 3-1/2 years against the order fixing the tentative rent and in fact started complying with the same w,e,f, 10-2-1992 but did not make up the deficiency in the past rent as directed by the learned Controller. As such, the non-compliance of the rent in accordance with the orders, dated 13-1-1992 passed by the Rent Controller in both the petitions would be considered patent on its face and would not call for any further enquiry nor it could be deferred till the conclusion of the trial because the Legislature had intended that the order passed by the Rent Controller under section 13(6) of the Ordinance shall be complied with and its failure would leave no option for the Controller but to strike off the defence. In the instant case also, no exception can be taken because the appellants/tenants could not be allowed to approbate and reprobate while stating that the orders, dated 13-1-1992 were illegal but at the same time started paying the future rent at the enhanced rate w,e,f, 10-2-1992 but ignored the orders regarding the past (sic) they were highly negligent to make up the deficiency in the, arrears of the rent as pointed out above.
12. In view of the events, the learned Rent Controller fell in error to dismiss the application moved for striking off the defence and hence, the appeal was rightly accepted by the learned first appellate Court and the eviction of the appellants/tenants was correctly made.
13. Both the appeals being meritless are dismissed. The order of the learned first appellate Court is upheld. The appellants/tenants are given a period of one month w,e,f, today to vacate the disputed premises and hand over the possession to the respondents/landlords failing which the ejectment order shall be executable in accordance with law. Cost to follow the event.