' Present second appeal proceeds against judgment dated 14-6-2001, whereby the learned District Judge dismissed the appeal, filed by the appellant, and maintained the ejectment order, dated 15- 5-2001, passed by the learned Rent Controller, through which he, while striking off the defence of the appellant, directed him to put the landlord in possession.
2. Brief facts leading to the filing of the present appeal are that the respondents, on 10-2-2001, filed an ejectment petition, against the appellant, seeking his ejectment from the shops in-question, before the learned Rent Controller, on the grounds of default and impairing the value and utility of the shops in question. The appellant contested the said ejectment petition by way of filing the written reply, thereby taking certain legal objections, however, he aamitted the tenancy qua the respondents and denied the rate of rent, which according to the appellant was Rs,700 per month.
The learned Rent Controller, after finding, that the relationship of landlord and tenant is admitted and there is a dispute about the rate of rent, proceeded to determine the tentative rent at the rate of Rs,1000 per month and directed the appellant, in exercise of its powers conferred under section 13(6) of the Punjab Urban Restriction Ordinance, 1959, to deposit the arrears of rent, at the rate of Rs,1,000 per month, for the last four years and also directed him to deposit the future monthly rent before the 15th day of each month vide order dated 19-4-2001. It appears that the appellant did not comply with the terms of the said order, resultantly the learned Rent Controller, after finding that the receipts for the deposit of the arrears of rent have not been produced, struck off the defence of the appellant and consequently accepted the ejectment petition vide order dated 15-5-2001. The appellant felt aggrieved and filed first appeal before the Appellate Authority, but with no success as his appeal was also dismissed by the learned District Judge, Gujranwala, vide order, dated 14-6- 2001, hence the present appeal.
3. Learned counsel for the appellant has contended that the learned Rent Controller, while passing the order under section 13(6) of Ordinance, 1959, directed the appellant to deposit a time-barred rent for four years, whereas, under the law, the learned Rent Controller is not empowered to direct the tenant to deposit the rent beyond a period of three years. In this perspective he has submitted that as the basic order was illegal and without jurisdiction, thus, the superstructure built upon the said void order has no value in the eyes of law, therefore, both the orders are liable to be set aside.
' Conversely; Syed Ahmad Saeed Kirmani, Advocate, while relying on Ashfaqur-Rehman Khan v. Ch. Muhammad Afzal and another (PLD 1971 SC 766) and Pervaiz Akhtar and another v. The Additional District Judge, Rawalpindi and 4 others (PLD 1990 SC 681) has contended that the "rent due" includes the time-barred rent, therefore, the order, dated 19-4-2001, whereby the learned Rent Controller directed the appellant to deposit the time-barred rent for four years, does not suffer from any legal infirmity and, thus, both the concurrent orders are not liable to be interfered by this Court.
4. After the examination of the provisions of section 13(6) of Ordinance, 1959, I am of the view that the learned Rent Controller can direct a tenant for the deposit of "rent due", but the said rent due must be "legally due" and not otherwise. It flows therefrom that if a rent is not legally due, in that case the same would not fall within the term "rent due", thus, the learned Rent Controller is not empowered to order for the deposit of such rent under section 13(6) of Ordinance, 1959.
5. The pivotal question, which has now arisen for determination by this Court is as to whether the learned Rent Controller, in exercise of its powers under section 13(6) of the Ordinance, 1959, is empowered to direct the tenant to deposit a time-barred rent, which cannot be recovered under the ordinary law. This legal question was dealt with by the Hon'ble Supreme Court in a case reported as Ashfaq-ur-Rehman v. Chaudhri Muhammad Afzal (PLD 1968 SC 230) and their lordships came to the following conclusion:- ".... a Rent Controller acting under section 13(6) of the Ordinance cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation."
6. As regards the case reported as Ashfaq-ur-Rehman Khan v. Ch. Muhammad Afzal and another (PLD 1971 SC 766), relied upon by the learned counsel for the respondents, the question which arose before their lordships of the Supreme Court was whether the rent, which accumulates during the pendency of ejectment petition, regardless of the period involved, is also included in the expression "rent due" occurring in section 13(6) of the Ordinance. Their lordships came to the conclusion that the learned Rent Controller,can order the tenant to deposit the arrears of rent Only for a period of 3 years, prior to the date of the filing of the ejectment petition, even if that has become legally barred to be recovered in exercise of the provisions of section 13(6) of Ordinance, 1959. So, the crux of the matter is that a Rent Controller is only empowered to direct a tenant to deposit the arrears of rent for three years from the date of institution of the 18 ejectment petition.
7. In the case in hand the ejectment petition was filed, on 10-2-2001, whereas on 19-4-2001, the learned Rent Controller ordered the appellant to deposit the arrears of rent for four years. Even if the period for deposit of rent is computed from the date of the filing of the ejectment petition, even then the learned Rent Controler has ordered for the deposit of the arrears of rent for 46 months, whereas according to the principle laid down in the aforesaid case of Ashfaq-ur-Rehman Khan, the learned Rent Controller could have only directed the tenant for the deposit of arrears of rent for 36 months prior to the date of filing the ejectment petition, i,e, 10-2-2001.
8. Now coming to another case reported as Pervaiz Akhtar and another v. The Additional District Judge, Rawalpindi and 4 others (PLD 1990 SC 681), relied upon by the learned counsel for the respondents, suffice it to say that the principle laid down in the said judgment is not attracted, under the facts and circumstances of the present case and the said judgment is of no avail to the respondents. Indepth study of Pervaiz Akhtar's case, (ibid), reveals that the Hon'ble Supreme Court dilated upon the terms "default" and "rent due" in context with section 13(2) of Ordinance, 1959 and not in relations to section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. It was held in that case that an action to recover rent in a Court of law may not be available, but eviction of tenant on the ground of default will still be available to the landlord (underlining is mine).
Furthermore, in the case of Pervaiz Akhtar, (ibid), no order under section 13(6) of Ordinance, 1959, was passed and thus, the question of time barred rent was not considered in relation to the provisions of section 13(6) of the Ordinance and the controversy was confined only with regard to the provisions of section 13(2) of Ordinance, 1959. Perhaps that was the reason that their lordships held that "the decision of this court in Ashfaq-ur-Rehman's case has to be considered in the context of section 13(6) of the Ordinance".
9. To recapitulate, it may be noted that in the case in hand the learned Rent Controller, on 19-4- 2001, ordered for the deposit of arrears of rent for four years and, thus, he directed the appellant to deposit a time-barred rent. As discussed above, he could have, under the facts and circumstances of the case, at best, ordered for the deposit of the arrears of rent, under section 13(6) of Ordinance, 1959, for a period of 3 years from the date of the' institution of the ejectment petition. Applying the aforesaid yardstick, laid down in the cases of Ashfaq-ur-Rehman v. Chaudhry Muhammad Afzal (PLD 1968 SC 230) and Ashfaq-ur-Rehman Khan v. Ch. Muhammad Afzal and another (PLD 1971 SC 766) I am of the considered view that the learned Rent Controler, while directing the appellant, to deposit a time-barred rent, has committed a grave illegality, thus, the order passed by the learned Rent Controller is not only without jurisdiction, but void also.
10. As the basic order is held to be without jurisdiction and void, therefore, the subsequent orders passed either by the same authority or by other authority the whole series of such orders, together with the superstructure of right and obligations of the parties built upon them must fall to the ground because such orders have as little legal, foundation as the void order on which they are founded as per principle laid down in Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104). Applying the said principle laid down by the learned apex Court as the basic order is held to be without jurisdiction and void, therefore, all the subsequent orders passed, by the learned Rent Controller and the learned District Judge, would fall to the ground and are nullity under the law.
11. Upshot of the above discussion is . That the present appeal is accepted and the impugned judgment/order dated 14-6-2001 and 15-5-2001, passed by the learned District Judge and the learned Rent Controller are hereby set aside with no order as to costs. The result would be that the ejectment petition, filed by the respondents, shall be deemed to be pending before the learned Rent Controller, who shall pass a fresh order under section 13(6) of Ordinance, 1959, in view of the case-law noted above and then shall decide the ejectment petition, after hearing the parties; and, of course, in accordance with law. As the ejectment petition was filed, on 10-2-2001, and the parties are back to square one, therefore, the learned Rent Controller is directed to finally decide the ejectment petition within a period of four months from the receipt of the judgment.
' Office is directed to transmit - the records of both the Courts immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.