1. This is a second appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, filed by the appellant landlord against the order dated 11-3-1970 passed by the learned Additional District Judge Karachi whereby he set aside the order dated 13-9-1969 of the Rent Controller striking off the defence of the respondent tenant and directing his eviction after one month.
2. The facts forming the background of this appeal are that the respondent is a tenant of a flat in Gowind Geha Building situated on Stretchen Road, Karachi, owner by the appellant Public Charitable Trust. Respondent failed to pay monthly rent of Rs. 27 since 1st May, 1949. Consequently, the appellant filed an application against the respondent under section 18 of the Karachi Small Causes Court Act which was allowed on 18-10-1956 and the respondent was directed to deposit Rs.
3. 2,403 as rent arrears up to 30-9-1956 ; failing which, he was ordered to be ejected. The respondent.
4. However did not deposit any amount. As a result, execution proceedings were filed against him and a writ of possession was issued. The respondent thereupon filed a Suit No. 47 of 1962 against the appellant challenging the validity of the writ of possession issued by the Chief Judge, Small Causes Court, Karachi, which was dismissed on 8-6-1963. The appellant thereafter perused the execution proceedings and obtained warrant of possession. How ever, before it could be executed, West Pakistan Urban Rent Restriction Ordi--nance came Into force in July 1963 and the writ of possession Issued earlier could not be executed in view of section 13 of the Ordinance.
5. Consequently on 14-9-1963, appellant filed a fresh application under section 13 of the Ordinance before the Rent Controller seeking ejectment of the appellant on the ground of default in paying rent In the proceedings, the learned Rent Controller on 21-11-1967, passed the rent order under section 13 (9) of the Ordinance directing the tenant to deposit arrears from Ist May 1949 to January 1568 amounting to Rs. 6,075 before 15-2-1968 and further directed him to deposit future rent from February 1968 onwards before 1 5th of every following month. The respondent, however, failed to deposit any amount towards the arrears or the future rent. He also did not file any appeal against the rent order. Consequently, the appellant moved an application under section 13 (6) for striking off the defence of the respondent. The respondent contested the application on the ground that since the Rent Controller had directed him to deposit arrears beyond three years of the filing of the application, the rent order was not legal in view of PLD 1968 SC 230 and, therefore, his defence could not be struck off. The learned Rent Controller rejected the objection and allowed the application and struck off the defence of the respondent and ordered his ejectment by his order dated 13-9-1969. The respondent went in appeal which was allowed by the Additional District Judge by his order dated 11-3-1970 whereby he accepted the objection of the respondent sod modified the order passed by the learned Rent Controller by directing the respondent to deposit arrears of rent from October 1960 till October 1970 on or before the 26th of March 1970 and future rent before the 15th of every following month at tile rate of Rs. 27 per month.
6. Being aggrieved by the order of the learned Additional District Judge, appellant has come fn this second appeal. It may be mentioned here that, admittedly, the respondent tenant has not deposited any amount towards the arrears as well as the future rent even after the passing of the order by the learned Additional District Judge on 11-3-1970.
7. Mr. Ahmed A.I Memon, learned counsel for the appellant, contended that the learned Additional District Judge was wrong in setting aside the order of the learned Rent Controller by relying on PLD 1968 SC 230 which did not cover the facts of the Instant case and was, therefore, not applicable, inasmuch as, he failed to take into consideration that besides not depositing the arrears, the respondent. Admittedly, had also failed to deposit future rent in terms of the rent order passed by the learned Rent Controller under section 13 (6) which was valid and proper, to the extent of future rent at least, and had therefore to be complied with to that extent anyhow, although it was also valid and proper in respect of arrears, in view of section 14 of the Limitation Act which was applicable to the facts and circumstances of this case and in support relied upon PLD 1971 SC 766 and PLD 1973 Note 113 at p. 172.
8. Mr. S. Anwar A.I, learned counsel for the respondent, in reply admitted that the respondent had paid no rent. Whatsoever, since his occupying the premises in May 1949. He also admitted that the respondent tenant had not deposited any amount towards the arrears or the future rent after the passing of the rent order by the Rent Controller or the learned Additional District Judge. He also conceded that no appeal was filed by the respondent against the rent order passed by tire learned Rent Controller. He, however, contended that as the order of the learned Rent Controller in respect of the arrears was contrary to the law laid down! By the Supreme Court in the case reported as PLD 1968 SC 2 ?0, it was rightly set aside to that extent but, he went on to add, as the order with regard to future rent was also not complied with by the respondent tenant, he found it difficult to dispute that the defence of the respondent could be struck off by the Rent Controller in view of the Supreme Court decision reported in PLD 1971 SC 766 which rims binding and could not be distinguished by him.
9. The question for consideration is whether the learned Additional District Judge was right in setting aside the order of the Rent Controller striking off the defence of the respondent.
10. Indeed, the Supreme Court did hold in PLD 1968 SC 230 that the tenant could not be called upon to pay arrears beyond three years before the making of the application but, unlike in the reported case where the tenant had deposited the future rent as directed by the Rent Controller and had disputed only the direction to deposit arrears beyond three years by filing appeal, the further question involved in the instant case was that the respondent had failed to deposit future rent also, apart from his failing to deposit any amount towards the arrears. The rent order passed by the learned Rent Controller contained two separate directions for depositing arrears and future monthly rent and the same being an order of interim or interlocutory nature it remained operative till the final order was made by the learned Rent Controller, which had yet to be made in this case.
11. It was observed In the case of Sh. Muhammad Rafiq v. Mian Umar Din PLD 1973 Note 113 at p. 172 that the two provisions about deposit of amount due and future rent are not cumulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. Consequently, the respondent was duty bound to deposit future rent also, and it being an admitted position that no future monthly rent was deposited by the respondent, at all, he clearly violated the order of the learned Rent Controller and thus committed default for which his defence could well be struck off by the learned Rent Controller. For support, if any is needed, reference may be made to PLD 1971 SC 766 wherein their Lordships observed at page 770 as follows :- "As stated earlier, the first order of the Rent Controller, dated the 24th June 1959 directing deposit of arrears and future rent was an order of interim or interlocutory nature and the same shall remain operative till a final order is made by the Rent Controller in the pending proceedings for ejectment.
12. The Rent Controller is yet !o make a final order directing deposit of future monthly rent till continues to remain in force. If in the meantime, the applicants have defaulted in depositing monthly rent pursuant to the first order of the Rent Controller, then, they are at fault for violating that order and, for that reason, they are all the mere disentitled to plead the bar of limitation"
13. Indeed, the learned counsel for the respondent himself concerned in view of the above observation of their lordships of the Supreme Court, the defence of the respondent could be struck off for his failure to deposit future rent in terms of the order of the learned Rent Controller. The order of the learned Additional District Judge would, however, how that he has not adverted to, muchless taken into consideration, this aspect of the case and was, therefore, not justified in setting aside the order of the learned Rent Controller striking off the defence of the respondent tenant.
14. For the aforesaid reasons, I allow this appeal and set aside the order passed by the learned Additional District Judge and restore the order dated 13-9-1969 passed by the learned Rent Controller, with no order as to costs.
15. The respondent is, however, given two months to vacate the premises and hand over its possession to the appellant.