M. JAVED BUTTAR, J.--- This constitutional petition is directed against the judgment dated 6.7.1998, of Additional District Judge, Lahore whereby the petitioner's appeal against the order dated 24.4.1998, of Rent Controller, Lahore, of the petitioner's ejectment and the order dated 19.3.1998 of the fixation of tentative rent and for the deposit of arrears of rent, has been dismissed.
2. The relevant facts are that the respondent No. 1/landlord instituted ejectment petition for the ejectment of the petitioner from the disputed premises, consisting of one room, in December, 1997, on the grounds of default in the payment of monthly rent at the alleged rate of Rs. 1200/- per month, from July, 1995 till the date of institution of the ejectment petition and on the ground of bona-fide personal need. The petitioner contested the petition through written reply dated 26.2.1998. The relationship of landlord and tenant between the parties is admitted. The Learned Rent Controller, Lahore, vide his order dated 19.3.1998, under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 fixed the tentative monthly rent of the demised premises to be Rs.
900/- per month and directed the petitioner to deposit the arrears at the same rate from July, 1995 till date (i.e. Rs. 29700/-) till 3.4.1998 after deducting rent already deposited by the petitioner in Court subject to the furnishing of proof/feceipt: The Rent Controller further ordered the petitioner to pay future monthly rent accordingly at the rate of Rs. 900/- before 15th day of every month. The above order dated 19.3.1998 of the Rent Controller, Lahore, was not challenged and the petitioner failed to comply with the same. Consequently the Rent Controller vide his impugned order dated 24.4.1998 while proceeding ex-parte against the petitioner (due to the petitioner's absence) accepted the ejectment petition with costs for non compliance of order passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 and directed the petitioner to deliver vacant possession-of the demised premises within a period of one month from the date of passing of the said order. The petitioner challenged the order dated 24.4.1998 as well as order of the Rent Controller dated 19.3.1998 through an appeal which, as mentioned above, has been dismissed by the Additional District Judge, Lahore, on 6.7.1998. Hence, this petition.
3. It is contended by the learned counsel for the petitioner that the petitioner contested the ejectment petition, denying the allegations leveled by the respondents and it was agitated that the monthly rent of the premises in dispute was Rs. 600/- and there was no default as the rent was paid up to date but the learned Rent Controller acted arbitrarily in a haste in passing the impugned order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, by determining the tentative rent to the tune of Rs. 900/- per month and by ordering the petitioner to deposit the arrears of rent from July, 1995 to-date It is also argued that the Rent Controller ought to have resolved the controversy between the parties before passing such an order and ought to have determined the rate of rent as well as the period of default, if any, before asking the petitioner to deposit the alleged arrears under Section 13(6) of the above said Ordinance. It is submitted that the order has resultedin mis-carriage of justice and has created hardship for the petitioner and the same amounts to passing an ejectment order straightaway against the petitioner. In support of his contentions, learned counsel has placed his reliance on Tauqeer Shahid v. Additional District Judge and others (1993 CLC 2435 (Lahore), Abdul Hafeez v. Mst. Zubaida Khatoon (1992 CLC 471 (Karachi) and Taifure v. Muhammad Irshad Sipra and others (1982 CLC 314 (Lahore).
4. Learned counsel has also argued that the ejectment petition has been instituted in a mala fide manner and the conduct of the respondent disentitles him to exercise of any discretion in his favour. Learned counsel in this regard has referred to the receipts of money orders (Annex A-1 to A- 4 which show that the petitioner sent the monthly rent through postal facility for three months from July, 1997 to the respondent but the respondents refused to receive the same. Reference is also made to Treasury receipts/challans (Annex B-1 to B-10) to show that thereafter the petitioner moved an application to the Rent Controller, Lahore, for permission to deposit rent in Court from July, 1997 at the rate of Rs. 600/-per month as the respondent had refused to receive the same and that the petitioner had been depositing the rent regularly in Court under the order of the Court which, according to the learned counsel, shows that there was no default with the petitioner/tenant, at the time of institution of the ejectment petition. Learned counsel has further submitted that the petitioner had previously instituted an application under section 10 of the Punjab Urban Rent Restriction Ordinance, 1959 on 10.7.1997 for restraining the respondent/landlord from interfering in the tenancy amenities like supply of water etc. And in this application also the rate of rent per month was mentioned as Rs. 600/-. The Rent Controller issued notice to the respondent in this application which was disposed of on 20.1.1998 (Annex C-1) when the respondent appeared through his counsel who gave a statement before the Rent Controller that the tenancy amenities will not be interfered with and that the ejectment petition has been instituted against the petitioner. It is thus argued that this background shows that there was no default and the learned Rent Controller ought to have resolved the controversy in regard to arrears of rent before arbitrarily .Ordering the petitioner to deposit arrears of rent from July, 1995 till date. Learned counsel for the respondent, while vehemently opposing the petition, has submitted that the Rent Controller has the lawful authority to determine the tentative rent and to ask the tenant to deposit the arrears of rent tentatively and such an order, passed by the Rent Controller under Section 13(6) of the above said Ordinance cannot be interfered with by this Court in the exercise of its constitutional jurisdiction.
Learned counsel had further argued that on the failure of the tenant/petitioner to comply with the order passed by the learned Rent Controller under Section 13(6) of the above said Ordinance, the Rent Controller was bound to strike off the defence of the petitioner/tenant and to straightaway pass ejectment order against the petitioner. Learned counsel for the respondent in support of his contentions has placed his reliance on Mst. Zubaida Begun: v. Muhammad Zaheer (1999 CLC 917), Khalid Hamid v. Additional District Judge, Sahiwal and others (1991 SCM R 359), Mirza Nazir Ahmed Baig v. Additional District Judge, Kasur (1996 CLC 1616), Malik Muhammad Ryas v. Kh. Muhammad Younus (1992 CLC 526 (Lahore), Muhammad Bashir v. Allah Dad and another (PLJ 1983 Lahore 502), Riaz-ur-Rehman v.
Syed Akhtar Hussain Rizvi (1984 CLC 2731 (Karachi), Haji Abdul Sattar v. Mst. Shirin Bai and others (1985 CLC 2489), Muhammad Yahya v. S. Jamil-ur-Rehman (1983 CLC 2001 (Karachi), Ghulam Qadir v. Hazrat Shah (PLD 1964 (W.P.) Peshawar 50), Gurdasmal v. Pahlaj Ram and another (1986 CLC 43 (Karachi) and Asif Chughtai v. Mrs. Zile Huma and others (1995 SCM R 741).
5. In Tauqeer Shahid v. Additional District Judge and others (supra), the learned Single Judge of this Court while considering the provisions of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959, has held that before passing the order of deposit of monthly rent, it is incumbent upon the Rent Controller to resolve 'the controversy between the parties as to from which month the rent of the premises is due and thereafter pass tentative rent order. Learned Judge, in the circumstances of the case held that the order passed by the learned Rent Controller under section 13(6) of the Punjab Urban Rent Restriction Ordinance was not in accordance with the law, therefore, the subsequent orders passed on the said order could not he held to he lawful.. The writ petition was, therefore, accepted, the order of the Rent Controller of the striking off the defence and other subsequent orders were declared to have been passed without any lawful authority and of no legal effect and were quashed. In Abdul Hafeez v. Zubaida Khatoon (supra), the learned Single Judge of Sindh High Court held that the Rent Controllers, exercising rent jurisdiction have to he cautioned and efforts must he made to eschew any tendency towards haste or otherwise inordinate determination in. Such like matters because if any, justice would he first casualty in such exercise.
In Taifure v. Muhammad lrshad Sipra and others (supra), the learned Single Judge of this Court held that the duty of the Rent Controller under section 13 of the Punjab Urban Rent Restriction Ordinance is to ascertain what rate of rent is and not what it should he and approximate rate of rent is to he fixed when the rate of rent is not ascertained from the material placed by the parties before the Rent Controller.
6. I have also gone through the judgments cited by the learned counsel for the respondent, some of them are distinguishable and some of them are not relevant. The law laid down by the superior Courts in this country makes it clear that the Rent Controller can pass an order for the deposit of arrears of rent, on the basis of material placed on record by both the parties and defence of the tenant can be struck off due to non compliance of such an order. It is also clear that such an assessm ent is merely tentative determination of rent payable which is subject to the final decision at the end of the trial. It is, however, equally established that this Court in the exercise of its constitutional jurisdiction can also look into the legality of the order passed by the Rent Controller under section 13(6) of the above said Ordinance, if the same is challenged after the passing of the final ejectment order passed by the Rent Controller and after the failure of the appeal against the same. In the instant case, there was no material available before the Rent Controller on the basis of which he directed the petitioner/tenant to deposit the arrears of rent for the period from July, 1995.
He seems to have passed such an order merely because of the assertion of the landlord/respondent without considering the pleas of the petitioner. The order is arbitrary on the face of it because no reasons have been given by the Rent Controller for demanding from the petitioner the payment of arrears of rent from July, 1995, especially when the record shows that petitioner has been regularly paying the rent at the rate of Rs. 600/- per month in Court with the permission of the Court. Similarly the order of the Rent Controller of fixing the tentative monthly rent to be paid Rs. 900/- is also fanciful. It is not understandable as to how the Rent Controller determined the monthly rent to be Rs. 900/-: I respectfully agree with the learned Single Judge of this Court (Tauqeer Shahid v. Additional District Judge and others (Supra) that before passing the order for deposit of monthly rent it is incumbent upon the Rent Controller to resolve the controversy, if any, between the parties as to from which month the rent of premises is due. In the instant case, the Rent Controller never tried to resolve this controversy between the parties. I am also of the view that since the petitioner was and is depositing the monthly rent at the rate of Rs.
600/- per month in Court with the permission of the Court even from prior to the institution of the ejectment petition, the Rent Controller need not have gone into the controversy of passing an order for the payment of arrears of rent and the Rent Controller could have easily framed the necessary issue in regard to the rent of the premises and such a controversy could have been easily resolved through evidence at the time of decision of the ejectment petition alongwith other issues and if at the end, it was concluded that the rate of rent was higher than the one being agitated by the petitioner/tenant, the order for the recovery of the arrears of the difference could have been passed by the Rent Controller at the time of passing the final order.
7. In view of the above mentioned, the writ petition is accepted, the order dated 19.3.1998 is set-aside as the same was not passed in accordance with law and the subsequent order dated 24.4.1998, of the Rent Controller as also the order dated 6.7.1998, of the lower appellate Court, are declared to have been passed without lawful authority and of no legal effect and are quashed. The petitioner shall keep on depositing monthly rent at the rate of Rs.
600/- per month in Court before the 15th of each month and the Rent Controller is directed to frame necessary issues in r:gard to the actual rate of rent of the premises and at the time of passing the final order on the respondent's ejectment petition, the Rent 'Controller shall also determine the arrears of rent, if any, payable by the petitioner to the respondent and in case it is found that the rent of the premises was higher than the one being claimed, by the petitioner, then besides passing the ejectment order, the Rent Controller shall also pass an order for the recovery of arrears of rent against the petitioner and in favour of the respondent. The parties, under the circumstances, are, however, left to bear their own costs.