' This is an appeal against an order dated 20th December, 1978 passed by Mehr Muhammad Nawaz Khan, Additional District Judge, Kasur maintaining an order of the Rent Controller passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance on 9th October 1978.
2. The facts are that during the course of proceedings of an application filed under section 13 of the Ordinance for ejectment of the appellants an order under section 13(6) was passed directing them to deposit arrears of rent amounting to Rs, 790 before 7th November 1972 and to continue depositing future rent at the rate of Rs, 5 per month before 15th of each succeeding month. The appellants filed an appeal against this order which was allowed to the extent that the amount of arrears was reduced to a sum of Rs, 670 which they were directed to deposit by the 28th June 1973.
There was some contravention of this order, on which order of striking off appellants defence was passed but in appeal that order was set aside since it appears that the learned Additional District Judge, Kasur was convinced of the explanation for late deposit given on behalf of the appellant.
The case was, therefore, remanded for proceeding in accordance with law and deciding the matter on merits,
3. After the remand it was brought to the notice of the Rent Controller that the appellants bad not deposited the future rent after the 16th of October 1972. It appears that no explanation was given regarding this default. It was argued that the respondents had waived the right by taking this belated plea. But this argument did not prevail with the Rent Controller. It was further argued that the appellants had paid house tax amounting to Rs, 67.50 but the Rent Controller held that this could not be deemed to the compliance with the order under section 13(6). Moreover out of an amount of Rs, 360 which was payable upto to 30th September 1978 only a sum of Rs, 67.50 had been deposited as tax which was meaningless. He, therefore, struck off the defence of the appellants and' directed them to be evicted.
4. The appellants filed an appeal before the learned Additional District Judge, which was dismissed on the ground that no justification could be advanced for non-payment of the rent. An argument was advanced that since the matter was already under appeal before the learned Additional District Judge, there was sufficient ground for non-deposit but the learned Additional District Judge pointed out that the appeal had been decided on the 17th June 1978 while the impugned order was passed on the 9th October 1978. No payment was made even within this period.
5. This case was admitted to a regular hearing on the ground that the original order of deposit of Rs, 670 pertained to period much in excess of three years and since the appellant could not be directed to deposit rent in excess of that period, the rent deposited by him should be treated to have been paid towards the future rent.
6. This argument is absolutely without force. It is clear that the appellants had filed an appeal against the order dated 16th October 1978 and it was that appeal in which the amount was reduced to a sum of Rs, 670 apparently he was satisfied with that order. He cannot, therefore, be allowed to take up this new point at this stage. Moreover though the Rent Controller may not be able to pass an order for deposit of rent exceeding three years but if rent beyond that period is paid, the tenant cannot file proceedings for the refund of that rent since after the expiry of three years only the remedy to recover rent becomes barred but the right" to recover is not extinguished.
In these circumstances the deposit of rent in excess of three years' period will be treated as payment of an amount to which the landlord was entitled. Consequently just as the appellants cannot be allowed to claim the refund of that amount, they cannot be allowed to raise a plea that the same should be credited towards future rent.
7. The learned counsel submitted that the rent had already been deposited in 1973. This argument is also without, force as the default is after 1973 also in fact it is upto 9th October 1978. Firstly this particular point was not taken before the appellate authority. On the other hand in the grounds of appeal before the learned Additional District Judge what was stated was only this that in view of the order passed in the first appeal reducing the arrears to Rs, 670 the appellants were acting under a misapprehension and for this reason they did not deposit the rent for the period in default.
This is a clear admission of default. Secondly the payment is said to have been made in 1973 while the default is upto 1978.
8. There is no merit in this appeal, which is dismissed. Since no one has appeared on behalf of the respondents, the parties are left to bear their own costs.