' This second appeal under section 15 of the Punjab Urban Rent Restriction Ordinance, 1959 has been directed against the order, dated 23-1-1999 passed in appeal by the learned Additional District Judge, Lahore, whereby the order of ejectment was set aside and the case was remanded to the learned Rent Controller to decide the same afresh.
2. Brief facts relevant for disposal of this appeal are that the present appellant filed an ejectment petition under section 13 of the Urban Rent Restriction Ordinance, 1959 for seeking ejectment of the respondent on the following grounds:--
(a) That the respondent is wilful defaulter.
(b) That a major portion of the building structure has been damaged by the respondent which has impaired materially the value and utility of the rented premises.
(c) That the respondent has been guilty of such acts and conduct which caused nuisance to the German Company BASF and forced them to vacate the premises illegally and forcibly.
(d) That the respondent has made unauthorised additions/alterations in the rented premises in violation of the lease agreement without obtaining permission or consent of the petitioner.
3. In ejectemnt petition it was claimed that to govern tenancy a lease agreement, dated 13-21995 was executed between the parties. It is further averred that before execution of lease agreement a Memorandum of Understanding was also executed between the parties which was appended as Annexures A & B with that petition. It was further claimed that the respondent had failed to make payment of rent of the rented premises the detail of which is furnished in paras. 5 and 6 of the ejectment petition which need not be reproduced here. The respondent resisted the ejectment application and denied execution of any agreement but admitted oral agreement and Memorandum of Understanding to the following effect:--
(a) The monthly rent of the demised premises shall be Rs,62,500 payable in advance in accordance with the settlements and mutual consents of the parties from time to time.
(b) There shall be no increase in the rent of the premises for. The first five years of the tenancy.
' The learned Rent Controller after hearing the parties vide order, dated 5-10-1998 held that the tenancy is admitted, but the parties were at variance at the rate of rent. After working out arrears of rent for the period commencing from 13-9-1997 to 12-9-1998 at the rate of Rs,1,50,000 per month, amounting to Rs,9,00,000, increased rate of rent from 13-2-1998 to 12-9-1998 at the rate of Rs,1,63,000 per month amounting to Rs,11,37,500+ Rs,10,00,000 for the period from 1-6-1995 to September, 1998. In total the respondent was directed to pay Rs, 34,12,500 within one month from 5-10-1998. It was further directed that the respondent would deposit future monthly rent at the rate of Rs,1,87,500 before 15th of each succeeding month till 12-2-1999 and onward future rent by increasing 10% on expiry of every year. The case was adjourned to 9-12-1998.
4. On 6-11-1998 the respondent moved an application for modification of order, dated 5-10-1998 and the learned Rent Controller vide order, dated 9-12-1998 dismissed the same as respondent failed to deposit the amount as directed vide order, dated 5-10-1998. The learned Rent Controller while dismissing the abovesaid application also struck off the defence of the respondent and he was ordered to hand over vacant possession of the demised property to the appellant/petitioner till 31-12-1998. On Execution Petition submitted by the appellant, the learned Rent Controller vide order, dated 15-12-1998 directed the Manager, Muslim Commercial Bank (Limited) Industrial Area, Gulberg Branch, Lahore to make the payment of amount to the tune of Rs,37,87,500 to the petitioner (Munir Hussain) immediately from the account of judgment-debtor namely Messrs Riaz Bottlers (Pvt.) Limited/respondent. The respondent instituted an appeal against order, dated 5-10- 1998, 9-12-1998 and 15-12-1998 and the learned Additional District Judge vide his judgment, dated 23-1-1999 allowed the appeal and remanded the case to the learned Rent Controller with a direction to pass the order for the deposit of past tentative rent if circumstances so admit after the production of certain documents and thereafter to decide the case afresh in accordance with law.
In para.10 of the judgment passed by Additional District Judge it was further observed as under:-- "As the learned Rent Controller namely Mr. Muhammad Shafique Chaudhry, has already expressed his view, therefore, it would be appropriate that the instant case be entrusted to some other Court of competent jurisdiction and for that matter the file be placed before the learned District Judge, Lahore for proper order."
' Hence this Second Appeal against Order.
5. In response to pre-admission notice Mr. Faisal Hand Chaudhary, Advocate, entered appearance on behalf of the respondent and after hearing the learned counsel for parties at some length, the appeal was admitted to regular hearing on 25-3-1999 and being rent matter the same was ordered to be set down for final hearing in 2nd week of June, 1999. The case was partly heard on 25-5-1999 and for remaining argument, was adjourned to next day i,e, 26-5-1999. On that date, due to non-availability of the learned counsel for respondent, the case was ordered to be relisted.
6. The learned counsel for appellant has contended that order, dated 5-10-1998 for deposit of tentative rent was interlocutory in nature and no appeal was competent. It is further argued that the learned Additional District Judge without formally admitting the appeal filed by the respondent accepted the same which is patently illegal. It is finally argued that while determining the tentative rent, the learned Rent Controller is not expected to hold detailed inquiry or to record the evidence.
The learned counsel in support of his arguments relied upon the cases reported as PLD 1984 Karachi 441, PLD 1983 SC 1, 1987 SCMR 25, 1985 SCMR 586 and 1999 CLC 917.
7. Conversely, the learned counsel for the respondent has contended that the learned Rent Controller should first make an inquiry regarding fixation of tentative rent, therefore, the. Order, passed by the learned Rent Controller was no order, in' the eye of law. He has placed reliance on PLD 1995 Lahore 352, 1986 CLC 1731, PLD 1963 (W.P.) Quetta 16, 1993 CLC 2435, PLD 1996 Karachi 612 and 1993 CLC 655. He has further argued that the order under section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959 directing the deposit of arrears of rent can be amended for the first time in appeal and this Court is not competent to examine the legality or correctness of the order. About the admissibility of the documents, the learned counsel has argued that since the original lease agreement and memorandum of understanding was not produced, the learned Rent Controller could not decide the matter on the basis of photo copeis, which were not admissible in evidence. In support of his arguments he has referred 1982 CLC 1592.
8. I have heard the learned counsel for the parties at length and have also perused the record and the authorities cited at the bar.
9. According to the appellant, the respondent has not paid the rent from 13-9-1997 and that the rate of rent was Rs,1,25,000 per month with increase of 10% from 13-2-1995. On the other hand the respondent has alleged that the rate of rent was Rs,62,500, which he had been paying regularly. It clearly shows that the tenancy was not disputed and the learned Rent Controller was competent to pass order for deposit of rent under section 13(6) of the Ordinance. The learned Rent Controller was required to determine the arrears of rent and also future monthly rent in case of any dispute regarding rate of rent and direct the tenant to make the deposit accordingly, pending the decision of the case. The tentative rent so determined is appropriate assessment and does not amount to final determination. The learned Rent Controller was not expected to hold detailed inquiry. The Hon'ble Judges of Supreme Court in case Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCMR 580) held as under:-- "No legal criterion is laid down for determining the rent, therefore, it lies within the discretion of the Rent Controller to so fix it. This determination is, however, provisional and subject to the final determination of the amount due as rent on the conclusion of the proceedings and in case of default in the payment of the arrears of rent or the future rent, the Rent Controller is empowered to strike off his defence and order his ejectment without taking any further proceedings in the case."
' Their lordships further held as under:-- "Illegality of quantum of rent could not be challenged as the proceedings before the Rent Controller are confined to the inquiry relating to wilful default in payment of the arrears of rent and future rent and not to any other matter."
' In another case Begum Capt. Mirza Ghulam Sarwar v. District Judge, Jhelum (1987 SCMR 25) it was held as under:- "He then urged that the respondents had waived their right by withdrawing the amount of Rs,990 which was deposited by the petitioner in the Bank. But these pleas, we may observe, could only be taken after the petitioners were allowed to enter upon their defence and this could only be permitted if the petitioners complied with the order, of deposit under section 13(6). This alone could provide them with an opportunity of entering upon their defence. The said order not having been complied with, in accordance with its terms, their defence was liable to be struck off. As it was established that the order, dated 16-12-1978 was not complied with according to its terms the decision striking off their defence cannot legitimately be objected to."
' It was held in case Mst. Akhtar Jehan Begum, and 4 others v. Muhammad Azam Khan (PLD 1983 SC 1) in the following:-- "Similarly when there was a dispute about the rate of rent between the parties, the Controller determined the rate tentatively for purposes of section 13(6) and directed that this matter could be thoroughly proved in the main proceedings, when the parties adduced evidence in support of their respective claims. This approach of the Rent Controller was approved in Rustam G. Irani v. Javed Qureshi (1975 SCMR 200). In Mushtaq Hussain v. Muhammad Shafi (1979 SCMR 496), this Court repelled a somewhat similar contention in the following words:-- ' .The order directing deposit of rent in its very nature under the statute aforesaid was based on a tentative view of the case and its obedience could be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication' ."
' In a recent judgment reported in 1999 CLC 917 (Mst. Zubeda Begum v. Muhammad Zaheer) it was held that:-- "If Rent Controller tentatively determines arrears relying on existing material and directs tenant to deposit same, then tenant is bound to comply with order to avoid penal consequences."
' It was further held that:-- "The learned Additional District Judge illegally assumed that Rent Controller should have made inquiry and collected evidence for purpose of passing order for deposit of arrears of rent. This assumption is self-assumptive and contrary to provisions of section 13(6) of Ordinance."
10. The authorities cited on behalf of the respondent are also to the effect that the rate of rent and the amount of arrears determined by the Rent Controller is determined approximately and while determining this, the learned Rent Controller should not only take into consideration the claim of the landlord, but also take into consideration the contention of the tenant, and these authorities are not of a help to the respondent.
11. In the case in hand, the learned Rent Controller has sufficient material before him at the time of tentative determination or approximate assessment of the rent and on the basis of that material he made tentative determination which of course was subject to final decision at the end of trial.
The respondent having admitted the tenancy and failed to produce any document in defence to the lease agreement and the memorandum of understanding, which were duly signed by him and were produced in original by the appellant the learned Rent Controller after examining these documents in detail vide his order, dated 5-10-1998 directed the respondent/tenant to deposit the same which he failed to deposit. Under section 13(6) of the Ordinance the tenant should not disobey that order to avoid penal consequences. The learned Additional District Judge illegally assumed that the lease agreement and memorandum of understanding were not produced.
Admittedly, the respondent moved an application on 11-5-1998 before the Rent Controller with the prayer that appellant be directed to produce the original documents mentioned in the petition. In para. 3 of the reply submitted by the appellant, which is dated 6-6-1998, it was mentioned as under:-- "Incorrect complete original documents duly signed by the respondent are being enclosed with this application, however, original agreement has already been submitted."
' As already mentioned Hon'ble Supreme Court of Pakistan in case reported as 1985 SCMR 580 has held that it lies within the discretion of the Rent Controller and that section 13(6) of Urban Rent Restriction Ordinance, 1959 requires that in case of dispute the Rent Controller shall first approximately determine the quantum of rent and direct the arrears and future rent to be paid on the fifteenth of each month. No legal criterion is laid down for determining the rent, therefore, it lies within the discretion of the Rent Controller to so fix it. The determination is, however, subject to final determination of the amount due as rent, on the conclusion of the proceedings.
12. Section 15, subsection (5) of the Ordinance also confers powers on the Appellate Court to direct the tenant to deposit the rent and if the tenant makes default in complying with the said order, then if he is appellant his appeal shall be dismissed summarily and if he is respondent his defence shall be struck off. If the learned Additional District Judge was not satisfied with the order passed by the Rent Controller, whereby the respondent was directed to deposit the rent, he had same powers to direct the respondent to deposit the rent and there was no bar for him to determine the tentative rent. Instead of exercising jurisdiction vested in him under the law the learned Additional District Judge accepted the appeal summarily which order cannot be sustained.
13. In the light of above discussion, the order passed by the learned Rent Controller could not be struck down for the simple reason that the same was made without making detailed inquiry or recording evidence. Order dated 23-1-1999 passed in appeal is not sustainable. The question of wilful default has not been examined by the learned Appellate Court therefore, I have no option but to remand the case for decision of the appeal on merits. This appeal is allowed and the order of learned Additional District Judge, dated 23-1-1999 is set aside. The appeal filed by the respondent shall be deemed to be pending, which shall be decided afresh in accordance with law and in the light of observations made above. The learned District Judge, Lahore shall entrust the appeal to any other Additional District Judge than the learned Additional District Judge who has already decided the appeal and the same shall be disposed of within three months after hearing the parties concerned. The learned Appellate Court, during the pendency of appeal, may pass appropriate orders under section 15(5) of the Rent Restriction Ordinance. The parties are directed to appear before the learned District Judge, Lahore on 13-12-1999. The office shall send the record immediately.