The respondent-landlord filed an eviction application against the appellant tenant under section 13 of the Rent Ordinance on the ground that the tenant had defaulted in payment of rent from March 1972 to August 1972. In the written statement the plea taken was that rent up to November 1972 had been paid. The matter came up on 17-4-1973 before the Rent Controller for passing an order for tentative deposit of rent which .Order reads as follows : "Tentatively 5 months rent as alleged by the applicant be deposited in Court within three months.
This amount would not be refundable to the applicant until the application is decided. This amount of Re. 750 is due up to the filing of the application. The remaining arrears from the date of filing the application up to November be deposited within one month. As the rent from 7th November 1972 to 6th April, has admittedly been paid in Miscellaneous application, the future rent is hereby ordered to be paid before 15th of every calendar month, without fail in this Court. Advocates informed."
On 3-8-1973, the tenant made an application under section 148, C. P. C. To enable him to deposit the arrears of rent which he was unable to deposit within three months on the ground that he had fallen ill more particularly he was suffering, from typhoid fever. The application was supported by an affidavit and a medical certificate. On 6-10-1973, the landlord made an application for striking off the tenant's defence. This later application was allowed by the Rent Controller and maintained in appeal.
2. Both the lower Courts have come to a finding of fact that the tenant had not sufficiently shown that he was prevented from complying with then order dated 17th April 1973.
3. Mr. Sibghatullah Hameed, the learned counsel for the tenant, contended in this second appeal, that the order dated 17-4-1974 for tentative deposit of rent under subsection (6) of section 13 of the Rent Ordinance was invalid on the ground that in the first instance the order made was to deposit rent for five months from March 1972 to August 1972 within three months and from September 1972 to November 1972 within one month which was immediately reviewed by the Rent Controller and the entire eight months rent was ordered to be deposited within three months. The learned counsel contended that the Rent Controller had no power to review the earlier order made. In support the learned counsel relied on a decision reported in Agha Muhammad Hassan v. Mehraj Din PLD 1973 Lah. 95.
4. Mr. Siddiqui, the learned counsel for the landlord, contended that the order was reviewed by the Rent Controller merely to correct an error and at the instance of the tenant se would appear from the fact that the order reviewed starts with the words- "The counsel for the parties point out and that even the Lahore authority though holding that the Rent Controller had no power to review accepts the view that the Rent Controller may alter or vary any order if it is a nullity or was obtained by fraud or where certain clerical or accidental slip, mistake or omission was required to be corrected. The learned counsel also relied on a decision of our Court reported in PLD 1968 Kar. 50 In which it has been held that the Rent Controller could always recall an order made by him by virtue of the provisions contained in section 20 of the West Pakistan General Clauses Act. I am inclined to agree with Mr. Siddiqi that in the present case review was made at the instance of the tenant for the subsequent order permitted him to deposit eight months arrears of rent within three months instead of the earlier order whereby he was to deposit five months rent in three months and three months rent within one month. I, therefore, see no substance in the contention that the Rent Controller had committed any error in reviewing his earlier order.
5. Mr. Sibghatullah next contended that it was the tenant's case throughout that he bad paid rent up to November 1972 and that he was entitled to an opportunity to prove this payment before his defence was struck off on the ground that the order under subsection (6) of section 13 which had directed him to deposit rent up to November 1972 had not been complied with. In other words, the contention was that it is always open to a tenant to show that an order for deposit of tentative rent made undo subsection (6) of section 0 was factually incorrect and if he did s demonstrate there would be no occasion to strike off the defence. Y'he contention has force though I must rarer to Mr. Siddiqi's contention in reply that the tenant did not before the Rent Controller lead any evidence to prove, that he had paid rent up to November 1972. This is correct but I must take notice of the fact that until the decision of the Supreme Court of Pakistan in the case of Ibrahim v. Muhammad Hussain PLD1975SC457 the view that prevailed was that an order for deposit of tentative, rent made under subsection (6) of section 13 was appealable and if not appealed against became final and, therefore, such an order if not appealed against the only remedy left to the tenant was, when his defence was sought to be struck off, that for sufficient cause he was prevented from complying with that order. In the circumstances the tenant's omission in not leading the evidence in the present care in support of his plea that rest up to November 1972 had been paid is understandable.
I may add here that the First Appellate Court was prepared to examine the tenant's plea that he had paid rent up to November 1972 but only with a view to enable him to produce documentary evidence to that effect though the tenant's plea was that he had oral evidence to prove this payment. The First Appellate Court in the absence of documentary evidence was not prepared to examine this plea any further. Additionally, for the reason, that in the memo of appeal before him no such ground had boon urged. The absence of ground is also understandable for the law then understood was that an order under subsection (6) of section 13 for tentative deposit of rent if any appealed against was final and the limited remedy available to the tenant was only to show that its non-compliance was not wilful.
6. The result, therefore, is that this appeal is allowed and the matte will go back to the Rent Controller at the stage when the landlord's application for striking off the defence was pending and the tenant will have the liberty to prove his case that he had paid rent up to November 1072 and C therefore, the order for tentative deposit of rent was not a valid or proper order and its non- compliance cannot result in non-suiting him. In the circumstances there will be no order as to cost.