' This judgment, shall dispose of SAO' Nos.40 and 42 of 1994 as similar points of law and facts are involved.
2. Through this second appeal against the order, the appellant has challenged the order, dated 29- 9-1994 passed by Syed Irshad Hussain Abidi, learned Additional District Judge, Multan, whereby, by way of striking off the defence of the appellants, he dismissed the appeal under section 15(5) of the West Pakistan Urban Rent Restriction Ordinance, 1959.
3. Facts in brief are that respondents filed two ejectment petitions against the appellant qua the shops subject-matter of these appeals. The appellant-respondents denied the relationship of landlord and tenant and took up the plea that property is owned by one Muzaffar Ali Khan, that he was a tenant under him and the respondent-applicant had nothing to do with the property. In terms of the conflicting pleas, preliminary issue was framed which was decided in favour of respondent-applicant on 8-7-1991 and on 12-9-1992, the learned Rent Controller directed the appellant to deposit the rent at the rate claimed (Rs,75 in one case and Rs,125 in the other) by the 15th of every succeeding month from September, 1992. On 28-10-1992 appellant was directed to produce the receipts in accordance with the order, dated 20-9-1992 on the next date, i,e, 3-12-1992.
On this date, the learned counsel for the appellant conceded that the rent had not been deposited in terms of the order. The learned Rent Controller however, adjourned the case to 9-12-1992 with the following order:-- "Learned counsel for the respondents has admitted that the rent in view of the order of this Court has not been deposited. Therefore, now for the further proceedings to come up on 9-12-1992."
' On 9-12-1992, the learned Rent Controller was on leave, and the case was adjourned to 13-12-1992, on which date, the defence of the appellant/ defendant was struck off for non-compliance of the order, dated 20-9-1992. The afore-referred order of the learned Rent Controller was challenged in appeal. The learned appellate Court directed the appellants to place on record challan/receipts of the rent deposited in Court on or before 4-7-1994. The appellant did file the receipts from December, 1993 to March, '1994 and on 27-9-1994 he filed the receipt for the month of April, May and June 1994, but failed to file the receipts for the months of July and August. The learned appellate Court vide the impugned order, observed that the appellant had failed to comply with the afore-referred order and that the rent for the months of July and August, 1994 had not been paid by him. It was further observed that rent for the month of February, 1994 was deposited on 17- 3-1994 and of March, 1994 on 15-4-1994, which showed that the rent of these months was also deposited not within the stipulated period in terms of the order dated 4-1-1993. In these circumstances, acting under section 15(5) of the Rent Restriction Ordinance, the learned appellate Court struck off his defence and directed to hand-over the vacant possession of the disputed premises till 29-10-1994.
4. Learned counsel for the appellant has challenged the impugned order by submitting that the finding of the learned appellate Court with regard to non-deposit of rent for the months of July and August, 1994 is factually incorrect, as the receipts have been appended by the appellant with this appeal as Annexures "F" and "F 1"; that the rent for the month of February 1994 was deposited on 17- 3-1994 as 14-3-1994 and 15-3-1994 were holidays, and the appellants were under a misconception that 16-3-1994 was also a holiday. Relies on Abdul Ghafoor v. Ahmed Kunhi PLD 1969 SC 424, S. Pin Liu v. Mrs. Najma Kazmi PLD 1978 SC 275 and Muhammad Ishaq v. Abdul Haq and another NLR 1979 Civil 239 to contend that the non-deposit of rent in terms of the order passed under section 15(5) of the West Pakistan Rent Restriction Ordinance would not entail the penalty of the striking off the defence and the only affect is that the stay would stand vacated.
5. Learned counsel for the respondents-applicants on the other hand submitted that the issue of landlord and tenant was decided on 8-7-1991 in favour of the respondents-applicants; that the appellants not only defaulted in making the payment of rent before the trial Court, but also before the learned appellate Court and their defence was rightly struck off; that the precedent case law which had been relied upon by the learned counsel for the appellants is no longer in the field, inasmuch as section 15(5) of the Rent Restriction Ordinance was introduced latter than that and that there is no illegality in the impugned orders to merits interference.
6. Heard, Record perused.
7. A perusal of the record of the learned Rent Controller indicates that in terms of the conflicting pleas, a preliminary issue was framed by the Court on 12-3-1989 to the following effect:--
(i) Whether the relationship of landlord and tenant exists between the parties.
' Parties were directed to adduce evidence and the issue was decided in favour of the respondents-applicants on 8-7-1991. Learned counsel for the appellant admits that this order was neither challenged nor the said Muzaffar Ali who claimed ownership initiated any other proceedings to agitate the said claim. It was after this that the order, dated 20-9-1992 was passed to deposit the outstanding rent which having not been complied with, the defence was struck off.
The learned Rent Controller struck off the defence for non-deposit of the rent. Neither in the body of the appeal nor it seems during arguments before the learned Additional District Judge the appellant ever challenged the findings that he had failed to deposit the rent in terms of the order of the Rent Controller. That being so, the learned Trial Court had rightly passed the order under section 13(6) of the Rent Restriction Ordinance sticking off appellant's defence. Coming to the impugned order of the learned appellate Court, I find that the learned appellate Court had proceeded in terms of section 15(5) of the Rent Restriction Ordinance which reads as under:-- "The appellate authority admitting an appeal for hearing shall have the same powers to direct tenant to deposit the rent as are vested in the Controller under this Ordinance and if, the tenant makes default in compliance with such an order, then if he is the appellant, his appeal shall be dismissed summarily, and if he is the respondent, his defence shall be struck off."
' Admittedly, the appellant had deposited the rent for the months of July and August, 1994 and learned counsel for the respondent has readily conceded to that extent. However, so far as the rent for the month of February 1994 is concerned, it is not denied that the same was not deposited before 15-3-1994 in terms of the time stipulated in the order under the mistaken belief that 16-3- 1998 was the holiday. Surprisingly, even in ground 'C" of the appeal, the appellant has taken up the plea that the Courts were closed from 13-3-1994 to 16-3-1994. About 16-3-1994 learned counsel for the appellant frankly conceded before the Court that it was not a holiday. That being so, the default is apparent on record and his appeal was rightly dismissed in terms of the afore-referred provision of law. The precedent case law to which reference has been made by learned counsel for the appellant would not be relevant inasmuch as, section 15(5) was substituted by Ordinance IX of 1979 whereas judgments reported in PLD 1978 SC 275 and NLR 1979 (Civil) 239 are of prior dates.
8. There is yet another aspect of the matter. The conduct of the appellant-defendant in denying the relationship of landlord and tenant has been contumacious. The learned Rent Controller could straightway order ejectment after 8-7-1991 when the relationship of landlord and tenant stood established., I am fortified in my view by a judgment of the Honourable Supreme Court in Amanullah Khan (A. Khan) v. Chotey Khan 1978 SCMR 14 wherein at page 16 it was observed as under:-- "The learned Single Judge in the High Court placed reliance on the case of Nisar Ahmad v. Nazar Muhammad in declining to remand the case to the Rent Controller. However, it will not be necessary to examine the validity of the reasons given for and against the view for the case as it stands, it is an admitted position that the petitioner has defaulted in the payment of rent as he did not accept the respondent as his landlord. On this view of the matter, it would not have served any purpose to remand the case for the issue of default could not have been disputed.
' On this view of the matter we see no substance in this petition which is dismissed."
' Similar view was taken in Akbar Ali Khan Mirza v. The Additional District Judge 1989 SCM R 1399. In that case, the tenant had denied the relationship, issue was framed which was decided in favour of the landlord and the learned Rent Controller ordered ejectment, in appeal the learned Additional District Judge upheld the order, the writ petition filed against the said order was dismissed and the August Supreme Court dismissed the petition for leave to appeal by upholding the High Court's judgment.
9. For afore-referred reasons, the order of the ejectment passed by learned Rent Controller, dated 13-12-1992 and that of the learned Additional District Judge, dated 29-9-1994 do not call for interference as the concurrent findings are neither against the weight of evidence nor established law. The appeals having no merit, are hereby dismissed.