On 10-10-1996 the respondents filed an application for ejectment of the appellant from a shop located in Jhelum Urban Area on the ground that the appellant has not paid or tendered for payment rent in accordance with the agreement as also at the rate after the statutory inrecase.
Personal bona fide requirement was also pressed. The appellant resisted the said application. In response to the allegation of default he stated that he had been paying the rent in advance regularly and rent for the month of September. 1996 was not accepted by the landlord it was sent through money order but the receipt was again refused and the rent is now being deposited in Court. Upon completion of pleadings the learned Rent Controller vide order, dated 15-1-1998 adjourned the case to 24-2-1998 for passing an order under section 13(6) of the Punjab Urban Rent Restrictions Ordinance, 1959 and the parties were directed to be present in person alongwith the documents. On 24-2-1998 in presence of parties the learned Rent Controller proceeded to direct the appellant to deposit rent from September, 1996 to January, 1998 at the rate of Rs, 1461 per month, which rate of rent was admitted and to produce the receipts or deposit of challans for his inspection as ordered on 7-3-1998. It was further directed that w,e,f, February, 1998 the rent was to be deposited at the rate of Rs, 1534 per month before 15th day of the following month regularly. On 7-3-1998 the copies of the receipts and challans were produced with the submission that these represent evidence of deposit of the entire rent due. Issues were framed and the case was adjourned for evidence. On 19-10-1998 an application was filed by the respondents complaining that the said order of the learned Rent Controller h not been complied with by the appellant. In response the appellant vide written reply, dated 26-1-1999 simply stated that he has complied with the order. The learned Rent Controller heard the parties and vide order, dated 19-11-1998 proceeded to strike off the defence of the appellant. A first appeal filed by the appellant was heard by learned District Judge, Jhelum who dismissed the same on 7-6-2000.
2. Mr. Ajmal Kamal Mirza, learned counsel for the appellant argues that the default was not wilful.
Further contends that in fact by 7-3-1998 which was the date fixed by the learned Rent Controller the entire rent stood deposited from September, 1996 to January, 1998. With reference to judgments in the cases of Mian Rehmat Ali v. Khadeja Hakim PLD 1967 Lahore 29 and Maqsood Ahmed v. Additional District Judge and others 1994 CLC 331 argues that the learned Rent Controller did not make a determination that the default was wilful. Mr. Muhammad Ilyas Mian, Advocate, on the other hand, argues that there was no plea raised by the appellant and no cause shown by him for the default and as such upon a finding of fact that default had in fact been committed the learned Courts below. have not committed any error of law by striking of the defence of the appellant.
3. I have gone through the lower Courts records with the assistance of the learned counsel for the parties. In this case the relationship of landlord and tenant as also the rate of rent payable at the time of passing of the order under section 13(6) as also to be paid in future in accordance with statutory provisions stood admitted. The appellant was directed to deposit rent from September, 1996 to January, 1998 at the rate of Rs,1,461 per month and file the receipts or deposit challans on 7- 3-1998. Now it has been found by both the learned Courts below that rent for the period from September, 1996 to January, 1997 at the rate of Rs, 1461 per month comes to Rs, 7305, whereas the deposit challan produced by the appellant indicated a deposit of Rs, 7025. This of course constitutes noncompliance with the specific order passed by the learned Rent Controller in the presence of the parties. I have already referred to the material contends of the application filed by the landlords praying the striking off of defence of the appellant and the reply filed by him. He has simply stated that he had complied with the order. He did not acknowledge any default having been committed by him and of course there is no question of showing any cause by him for the same. Learned counsel for the respondents therefore, is very right in asserting that there being no plea that the default was not wilful, there was no occasion for the learned Rent Controller to determine as to whether or not the default was wilful.
4. Before this Court in the memo. of appeal (para. 4) it has been asserted that the appellant remained under a mistake that the previous rent was to be deposited at the rate of Rs,1391 per month and future rent was to be deposited at the rate of Rs,1534 per month and in the process he 'made the deposit for the said period from September, 1996 to January, 1997 at the rate of Rs, 1391 and not Rs, 1461 per month as directed by the learned Rent Controller. Now this plea on the face of it is baseless. In the first instance there is no ambiguity whatsoever in the order passed by the learned Rent Controller under section 13(6) of the said Ordinance that the rent is to be deposited for the said period at the rate of Rs,1,461 per month which rate of rent was admitted before him by the parties; and in the second instance it is a matter of record that the appellant had in fact been depositing the rent at the rate of Rs,,,1461 per month for the period subsequent to January, 1997. I am not, therefore, inclined to believe the said plea of the appellant that he made the short deposit because of some mistake.
5. Learned counsel for the appellant then insisted that the learned Rent Controller ought to have calculated the deposit of rent for the entire period from September, 1996 to January, 1998. He has presented a statement prepared by him for the said deposit as also filed copies of the challans for my inspection. Despite objection of the learned counsel for the respondents that it is absolutely a new plea and that too of fact being taken in the course of this second appeal, I proceeded to examine the said document in the light of the said submission of the learned counsel. Now I find that rent at the rate of Rs, 1461 per month for the period from September, 1996 to January; 1998 comes to Rs, 24,837 as calculated by the learned counsel for the appellant himself and is verified by him. Upon a calculation of the deposits made by the appellant from September, 1996 to January, 1998, the last deposit for January, 1998 having been made on 14-2-1998 before the said crucial date of 7-3-1998. This amount comes to Rs, 24,630. Thus even if the calculations are made on the basis of deposits for the entire period of September, 1996 to January, 1998 the non- compliance with the order under section 13(6) of the said Ordinance stands -established. No other point has been urged. This S.A.O. has no force and is accordingly dismissed leaving the parties to bear their own costs. The appellant shall hand over the vacant possession of the building in question to the respondents on or before 31-8-2001.