' DEEDAR HUSSAIN SHAH, J.---These two appeals by leave of this Court calling in question the judgment, dated 25-3-1999, passed in S.A.O. Nos.48 and 49 of 1996, delivered by the Lahore High Court, Lahore, will be disposed of through this common judgment because the facts, case-law and impugned judgment are same.
2. The facts, in brief, are that the appellants are the tenants of two separate shops. The respondents/landlords instituted ejectment petitions against the appellants before the Rent Controller. During proceedings of the ejectment cases, an order was passed by the learned Rent Controller under section 13(6) of Punjab Rent Restriction Ordinance, 1959, on 13-1-1992, directing the appellant in C.A. No,449 of 1999 to deposit further rent at the rate of Rs,875 per month and difference of rent from 1-7-1989 to 26-3-1992 at the rate of Rs,175 per month. Similarly, the appellant in C.A. No,450 of 1999 was ordered to pay the future rent at the rate of Rs,250 per month and the difference in the rate of rent from 1-7-1989 to 26-3-1992 at the rate of Rs,50 per month before the date specified in the rent order. It is an admitted position that the appellants in both the cases had regularly deposited the future monthly rent. However, in so far difference between the old rate of rent and new rate of rent fixed by the learned Rent Controller in the tentative rent order dated 13-1- 1992 passed under section 13(6) of the Punjab Urban Rent Restriction Ordinance, there has been default in deposit of that rent. The respondents/landlords moved an application for striking off the defence of appellants after about 3 years of passing of the tentative rent order but the learned Rent Controller refused to strike off the defence.
3. Feeling aggrieved of the refusal to strike off the defence the respondents/landlords filed appeals before the First Appellate Court, which were accepted and the defence of the appellants/tenants was struck off.
4. Feeling dissatisfied with the aforesaid order of the learned First Appellate Court, the appellants filed appeals in the High Court, which were dismissed vide impugned judgment dated 25-3-1999. In this context it would be advantageous to reproduce belo the relevant paragraphs of, the impugned judgment: ' In view of the above events, the learned Rent Controller fell in error to dismiss the application moved for striking off the defence and hence, the appeal was rightly accepted by the learned First Appellate Court and the eviction of the appellants/tenants was correctly made.
' Both the appeals being meritless are dismissed. The order of the learned First Appellate Court is upheld. The appellants/tenants are given a period of one month w.e.f, today to vacate the disputed premises and hand over the possession to the respondents/landlords failing which the ejectment orders shall be executable in accordance with law Cost to follow the event."
5. On 14-5-1999 leave to appeal was granted to consider the following contentions raised by the learned counsel for the appellants:- ' "That the landlord having failed to file any application for striking off defence of the petitioners in the cases on account of alleged default in the payment of difference in the arrears of rent for more than 3 years, the learned Rent Controller rightly refused to strike off defence of the petitioners as this inaction on the part of landlord amounted to waiver of the default. Reliance in this connection has been placed by the learned counsel on Ghulam Muhammad v. Mst. Shameema Khatoon (1984 CLC 3440)."
6. Learned counsel for the appellants, inter alia, contended that two Courts below did not consider the case in its real perspective; that the appellants had complied with the order of the learned Rent Controller and had been paying the rent of Rs,875 regularly from January, 1992 till todate, but due to a bona fide mistake and omission they could not pay the enhanced rent of Rs,175 w.e.f, 1-7-1989 to 31-12-1991. This mistake was neither intentional nor deliberate; that the respondent landlord did not raise any objection regarding deposit of the previous rent from 1-7-1989 to 31-12-1991; that after lapse of more than '3 years on 8-6-1995 the landlord submitted an application that the order of the Rent Controller dated 13-1-1992 had not been complied with; that the learned Rent Controller also framed two issues in order to resolve the controversy, whether the appellants wilfully and negligently made default for payment of the amount as directed by the learned Rent Controller; and that the controversy could have been settled between the parties only after recording the evidence.
7. Syed Najamul Hasan Kazmi, learned counsel for the respondents/landlord contended that the judgment of the First Appellate Court which was upheld by the learned Single Judge in Chambers does not suffer from any illegality or irregularity; that the appellants/tenants deliberately did not comply with the order of the learned Rent Controller and they miserably failed to deposit the rent as directed by the Court; that the Ordinance having not prescribed any period within which application by landlord for striking off defence of tenant is to be filed, mere delay by landlord in filing such application cannot by itself amount to waiver. He further submitted that keeping in view the provisions of West Pakistan Urban Rent Restriction Ordinance (VI of 1959) that the landlord has no right to waive away power of Rent Controller to strike off defence, such an order does not become illegal or ineffective for reason of landlord having refused to press it into service or waive it expressly. Learned counsel has relied on Muhammad Saleh v. Muhammad Shati (1982 SCM R 33 at 40) wherein this Court has observed as under:-- '. " Similarly, a default in the deposit of rent as ordered by the Rent Controller, renders the tenant's defence liable to be struck off. In fact, the provision in this case is much more stringent and provides that in case the tenant avoids the payment and commits default, his defence must be struck off. The relevant portion of the aforesaid mandatory provision may be reproduced below for facility of reference:-- ' '.. If the tenant makes default in compliance of such an order then if he is the applicant, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case...'
' A question, therefore, can legitimately be raised as to whether the landlord has any right to waive away the power of the Rent Controller under the said provision to strike off the tenant's defence. In other words, would such an order become illegal or ineffective if the landlord refused to press it into service or waive it expressly. We think not."
8. We have considered the arguments of the learned counsel for the parties and with their able assistance have gone through the evidence as well as the orders of the Courts below. Admittedly, the appellants/tenants did not comply with the order of the Rent Controller for depositing the difference of rent. There is no convincing explanation or reasonable excuse in not depositing the rent. The tenants in order to carry out their tenancy within the parameters of law were bound to comply with the order of the Rent Controller but they failed to do so wilfully. As there is no time limit fixed for submitting an application for striking off the defence, the defence of the tenant may be struck off when he fails in depositing the rent. Be that as it may, the respondents have not filed the application for a period of more than 3 years, burin any case. That was not the waiver as held by this Court in the above referred case.
9. The judgments passed by the two Courts below are in accordance with the law and in consonance to the principle laid down by this Court in the above-cited case-law. The contentions raised by the learned counsel for the appellants are not tenable. For the above reasons we see no substance in these appeals. Which are dismissed, leaving the parties to bear their own costs.
10. Lastly, learned counsel for the appellants requested that some time may be given to the appellants/tenants so that they may hand-over the vacant possession of the disputed property to the respondents. Learned counsel for the respondents did not raise any objection to this proposal.
We, accordingly allow three months' time from today to the appellants directing them to hand over the vacant and peaceful possession of the property in dispute to the respondents. After expiry of the above period, the writ of possession may be issued against the appellants without notice and with police aid, if necessary. However, the appellants shall deposit the rent regularly.