' This order will dispose of S.A.O. No,205 of 1995.
2. Respondent filed a petition under section 13 of Punjab Urban Rent Restriction Ordinance, 1959 against the appellant, for seeking his eviction from a shop, forming part of Property No,S-86-R-206, Ferozpur Road, Lahore, on the plea of default and damage. It was claimed that the respondent had purchased the property from Babar Ali, the appellant was a tenant under Babar Ali, who was served with a notice under section 13-A of the Ordinance and that he had not paid the rent despite being called upon to make payment thereof. The ejectment petition was resisted by the appellant, on the ground that the same was filed with mala fide intention, notice under section 13-A of the Ordinance was not served, the appellant was unaware of the purchase of property by respondent and that there was no default. It was added that the rent was not received, and therefore, the same was deposited in the treasury.
3. Vide order dated 19-12-1994, the learned Rent Controller, in exercise of his powers under section 13 (6) of the Ordinance, determined tentative rate of rent as Rs,7,200 per month and directed the appellant to deposit arrears of rent from November, 1993 to December, 1994. The total arrears in the sum of Rs,1,00,800, were required to be deposited till 14-1-1995.
4. Since the appellant did not comply with the order passed under section 13(6) of the Ordinance, therefore, his defence was struck off and he was directed to vacate the premises, vide order dated 6-2-1995.
5. Feeling aggrieved, appellant went in appeal which was dismissed by the learned Additional District Judge, Lahore, on 31-10-1995, hence this appeal.
6. In the present appeal, the two orders passed by the learned Rent Controller and also by the Additional District Judge have been called in question.
7. The appeal was dismissed for non-prosecution on 20-4-1999. C.M. No,353-C of 1999 was filed by the appellant for restoration of appeal. Learned counsel for the respondent submitted that if the main appeal is heard today, he will not oppose the restoration of the appeal. In this view of the matter, by allowing miscellaneous application, restoring the appeal, learned counsel for the appellant was asked to argue the appeal. Learned counsel relied on the grounds taken in the appeal and argued the case for some time, whereafter sought time to continue argument after attending his case before the Full Bench of this Court. The case was kept in waiting throughout the day but the learned counsel did not turn up though the learned counsel for the respondent kept on waiting for him. In this situation, the hearing was postponed for 10-12-1999, but no-one appeared for appellant, when the case was adjourned for today i.e. 13-12-1999. Despite the fact that the case was called on three occasions, learned counsel for the appellant did not turn up and in this view of the matter, there was no option but to hear the learned counsel for the respondent and decide the appeal on merits.
8. On the face of record, the appeal is barred by time. Order of learned Additional District Judge was passed on 31-10-1995, application for certified copy was filed on 15-11-1995 on which date certified copy was prepared and received on the same day. The present appeal was filed on 20-12- 1995 after expiry of limitation. C.M No,1-C of 1995, has been filed under section 5 of the Limitation Act for condonation of delay on the ground that the delay was not intentional but due to illness. The application is not supported by any medical certificate. Even otherwise, the delay of each and every day has not been explained. It may be observed that the last day of limitation was 16th of October, 1995 and in this way, the appeal is four days barred by time. It cannot be overlooked that section 5 of the Limitation Act is not applicable to the second appeal under the Rent Restriction Ordinance, and, therefore, neither the application for condonation of delay is maintainable nor delay can be condoned. Reference can be made to Ali Muhammad and another v. Fazal Hussain and others (1993 SCMR 1239). Be that as it may, no good ground is made out for condonation of delay. The appeal being barred by time merits dismissal on this short ground alone.
9. Even on merits, the appellant has made out no case for interference. In this case, the ejectment petition was filed on the ground of default. The claim was that the rate of rent Rs,7,200 per month which the appellant had failed to pay from March, 1994. In reply, the appellant took the plea that no notice under section 13-A of the Ordinance had been served. The allegation of default was denied though the appellant did not claim a different rate in the written statement. Keeping in view the material available on record, the learned Rent Controller passed an order under section 13(6) of the Ordinance directing deposit of arrears of rent from November, 1993 to December, 1994 in the sum of Rs,1,00,800. The arrear was calculated at the rate of Rs,7,200 per month. The appellant did not deposit the arrears of rent nor complied with the direction given under section 13 (6) of the Ordinance with the result that the defence was struck off and he was ordered to be ejected on 6-2- 1995. Appeal filed by the appellant was also dismissed. The only objection raised against the impugned order was that notice under section 13-A of the Ordinance had not been served and thus the petition was not maintainable and that the tentative monthly rent was not correctly determined. As to the objection with regard to notice under section 13-A, the same could not affect the power of learned Rent Controller to pass an order for the deposit of rent nor it could be a defence for non-compliance of the order under section 13 (6) of the Ordinance. The ejectment petition itself was a notice. Even otherwise, the objection of notice may be relevant on merit when the issue of default under section 13 (2)(1) of the Ordinance was to be considered. It has nothing to do with the passing of the order for the deposit of rent under section 13(6) of Ordinance. Once the learned Rent Controller found that the tenancy was admitted, the jurisdiction was not disputed, he was competent to pass order for deposit of arrears of rent and future rent as done in this case. The appellant was duty bound to make necessary compliance to avoid consequential event. The objection is , therefore, without substance.
10. As to the rate of the rent, the learned Rent Controller, competently directed that the rent should be deposited at the rate of Rs,7,200 as the appellant had not pleaded any different monthly rental in the reply.
Even otherwise, the learned Rent Controller, in a case of dispute, can tentatively determine the monthly rate and also the amount of arrears, and direct the tenant to deposit the same. The tenant even if not satisfied with the calculation or with the rate so determined, is duty bound to make deposit to avoid the striking off the defence. At best, the tenant could ask the Rent Controller to decline withdrawal of the amount by the landlord, but he cannot withhold the deposit of arrears on any such flimsy plea. Having failed to comply with the order and not given any sufficient cause for non-deposit of arrears of rent, the appellant rendered himself liable to ejectment, the defence was, therefore, rightly struck off in the given circumstances and the order does not suffer from any error of law and legal infirmity.
11. For the reasons above, this appeal is without substance which is dismissed as barred by time and also on merit. The appellant is allowed two months' time to deliver the vacant possession to the respondent.