' Instant second appeal, filed by the appellants/tenants, under section 15(6) of Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as Ordinance), proceeds against the order dated 30-3-2004, whereby the learned Additional District Judge dismissed appellant's appeal and maintained the ejectment order dated 1-7-2002, passed by the learned Rent Controller, through which he, after finding that the appellant failed to comply with the terms of rent deposit order dated 5-7-2001, passed under section 13(6) of the Ordinance, struck off their defence and accepted respondent's ejectment petition.
2. Precisely stated the facts, relevant for the decision of the present appeal, are that the respondent instituted an ejectment petition, seeking the eviction of the appellant, from the property in question, on the grounds of default in the payment of rent for the months of November, 1999 till September, 2000, and that the appellant has committed such acts, which have impaired the value and utility of the property in question. It was pleaded by the respondent/ejectment petitioner that the property in question was rented out to the appellant at a monthly rent of Rs.42,000 and it was agreed between the parties that first two months of tenancy i.e. September and October, 1998 will be treated as grace period; the first payment of rent will be made in the month of November, 1998 and that the appellant paid the rent from November 1998 to October 1999 but failed to pay or tender the rent since November 1999, as such, the appellant is defaulter. The appellant resisted the ejectment petition through filing the written reply, inter alia, pleading that the appellant is not liable to pay the rent from November, then 1999, that the appellant is not defaulter, as it had already paid the rent, also deposited the rent with the learned Rent Controller from October, 2000 onwards, as precautionary measures, and is depositing the monthly rent regularly. Upon the examination of the pleadings of the parties, the learned Rent Controller, on 5-7-2001, in exercise of its powers conferred under section 13(6) of the Ordinance, directed the appellant to pay the arrears of rent, at the rate of Rs.42,000 per month,from November, 1999 to June, 2001, amounting to Rs.8,40,000 and if any rent stood deposited by it, the same is liable to be adjusted subject to production of receipts. Through the same order the appellant was also directed to deposit the future monthly rent of Rs.42,000 subject to the statutory increase of 25% by 15th of each month. It appears from the record that the appellant, reportedly, deposited the arrears of rent, however, failed to deposite the future monthly rent, as directed by the learned Rent Controller. Thereupon the respondent filed an application for striking off the defence of the appellant, which though was resisted by it, yet the learned Rent Controller, after finding that the appellant has not complied with the terms of rent deposit order dated 5-7-2001,, accepted respondent's application, struck off appellant's defence and allowed the ejectment petition, vide order dated 1-7-2002. The appellant assailed the said order before the appellate forum but the learned Additional District Judge dismissed the appeal, vide order dated 30-32004, hence the present second appeal.
3. Learned counsel for the appellant has contended that both the Courts have not adverted to the real controversy about the date of start of the tenancy, that order, passed under section 13(6) of the Ordinance, was vague, that the rent deposit should be specific and that the appellant did not commit any default in fulfilling the terms of the rent deposit order, therefore, the impugned orders are not sustainable in law. The learned counsel have relied upon Hassan Masood v. S.M. Ahsan (1987 SCMR 655), Mst. Razia Begum and another v. Senior Civil Judge (Rent Controller) Charsadda and others (PLD 1996 Pesh. 8) and Tauqeer Shahid v. A.D.J. And others (1993 CLC 2435).
4. In view of the arguments of the learned counsel, I have examined the available record and find that the learned Rent Controller, in the presence of the learned counsel for the parties, while embarking upon the respective stances of the parties, passed the order under section 13(6) of the Ordinance, thereby directing the appellant to deposit the arrears of rent as well as future monthly rent. While passing the rent deposit order, dated 5-7-2001, the leaned Rent Controller duly noticed that the first two months of tenancy i.e. September and October 1998 were to be treated as grace period and after adjustment of the advance rent, the appellant is liable to pay the rent from November, 1999. In the said backdrop, the learned Rent Controller directed the appellant to deposit the arrears of rent from November, 1999 to June, 2001, amounting to Rs.8,40,000 and also to deposit the future monthly rent at the rate of Rs.42,000 by 15th of each months subject to statutory increase of 25%. It would be appropriate to reproduce the operative portion of rent deposit order dated 28- 10-2001, which reads as follows:-- ' The first two months, September and October 1998 wasthe grace period as per evident from agreement. Rent was applicable from month November 1998. Which was to be adjusted in the advance rent paid in advance. One year advance rent of Rs.5,04,000 has been paid and in these circumstances after adjusting advance rent and grace period, the respondent is liabel to pay rent from November, 1999. The respondent has also submitted separate application in the Court through which permission has been sought to deposit rent from October, 2000 and he has deposited rent from November 2000 to June 2001 and that amount has been withdrawn by the petitioner, That petition is annexed with the main petition. The learned cOunsel for the respondent has referred judgment, (2000 CLC 1010), (PLD 1975 Lhr. 425), (1994 MLD 402) and (1978 CLR (Civil) 150 Lhr.). Facts in the instant petition of the respondent and fact discussed in the above referred judgments are not identical As far as future rent is concerned, respondent is also directed to deposit rent of Rs.42,000 per month by or 15th of every month and future rent will also be subject of statutory increase of 25%." (Underlining is mine)
' As noted above, there is no dispute between the parties regarding the deposit of the arrears of rent, but the real controversy is about the deposit of future monthly rent of September, October and November 2001. Admittedly, the appellant did not deposit the monthly rent of these months, as directed by the learned Rent Controller, subject to the statutory increase of 25% and in fact deposited the said rent at the previous rate. The appellant has not placed on record relevant documents in order to show as to what was their defence, taken before the learned Rent Controller, in respect of the default committed by it. In view whereof, it would be appropriate to reproduce the respective contentions raised by the appellant before the learned Rent Controller, as recorded in order dated 1-7-2002, which read as under:-- "In reply, the respondent maintained that he is not at all liable to increase the rent from September 2001 because 25% increase is applicable from November 2001 as per lease agreement. The respondent further submitted that the respondent was not in the knowledge of passing of the order under section 13(6) with an increase of 25% after three years. And further that the respondent was not aware regarding the deposit of rent with 25% increase after three years. That the respondent on 23rd December 2001 contacted to his counsel in the office who told him that he was to deposit rent from November 2001 with 25% increase. After this disclosure, he immediately moved and deposited the increased amount i.e. Rs.10,500 oh 26-12-2001, as the actual rent for November 2001 is neither intentional nor willful but it is a bona fide mistake and in fact it was beyond the control of the respondent because he was not aware regarding the statutory increase of 25% from November, 2001."
' The submission made by the learned counsel for the appellant before the learned Appellate Authority, as recoded in the impugned order dated 30-3-2004, are reproduced below:-- "The learned counsel for the appellant raised the contention that learned Rent Controller cannot pass the impugned judgment and decree without deciding the question of jurisdiction, maintainability of the ejectment petition etc. It is further contended hat direction of deposit of future rent by the persona designata suffers legal infirmity. The impugned order is against the law and facts. The alleged default attributed to appellant is neither intentional nor willful. Lastly, it is argued that appellant deposited the future rent for the month of November 2001 amounting to Rs.42,000 per month on 6-11-2001. After gaining knowledge that learned Rent Controller had already ordered for the deposit of future rent subject to the increase of 25% the appellant immediately decided to deposit the remaining amount in the Court. The increase of rent of 25% ordered by learned Rent Controller was not in his knowledge, due to this hardship, he could not deposit the same within the stipulated time extended by learned Rent Controller. Therefore, this appeal be accepted and case be remanded back for a fresh decision on merits."
5. If the contentions now raised by the learned counsel are placed in juxtaposition with the aforesaid defence of the appellant, pleaded before both the Courts below, the only irresistible conclusion which flows therefrom is that the appellant did not urge the said pleas before the lower forums. It is settled law that a litigant cannot be allowed to raise a different plea before the appellate forum, which was not agitated before the Courts below. If any case-law is needed, judgments reported as Amir Shah v. Ziarat Gul (1998 SCMR 593) and Anwar Ali and others v.
Manzoor Hussain and another (1996 SCMR 1770) can be referred.
6. Even otherwise, the appellant has got no case on merits. As noted above, the only dispute, which has culminated to the filing of the present appeal, is about the deposit of the future monthly rent.
The learned Rent Controller, in exercise of powers conferred under section 13(6) of the Ordinance, directed the appellant to deposit the future monthly rent @ Rs.42,000 by 15th of each month subject to statutory increase of 25%. It flows therefrom that from the date of the passing of the order dated 5-7-2001, the appellant was directed to pay the future monthly rent of. Rs.42,000 plus 25% increase, which comes to Rs.52,500. Despite passing of the specific order, the appellant deposited the rent for the months ,of September, October and November 2001 at theprevious rate i.e. Rs.42,000. According to the case of the respondent, as the rent was not deposited at the rate of Rs.52,500, therefore, the appellant committed default in fulfilling the terms of the rent deposit order entailing penal consequences. The case of the appellant, as discernible from the defence taken before the leaned Appellate Authority, is that the appellant initially deposited the rent @ Rs.42,000, but after gaining knowledge that the Rent Controller had ordered for the deposit of future rent subject to increase of 25%, it deposited the remaining amount, as previously the appellant was not in the knowledge of the increase of rent by 25%. It flows from the above that even after passing of the rent deposit order, on 5-7-2001, the appellant intentionally deposited the rent at the previous rate of Rs.42,000 and subsequently deposited the deficient amount.
7. As regards first contention of the learned counsel that the learned Rent Controller, without resolving the controversy about starting date of tenancy, passed the rent deposit order the same is without substance. It is settled law that order under section 13(6) is tentatively passed, which enures till the final decision of the ejectment petition. The said controversy could have been decided after framing the issues, if the appellant complied with the terms of rent deposit order, however, the appellant by its acts and omissions did not allow the case to reach that stage.
Additionally, I feel that the alleged dispute, regarding the date of the start of tenancy, was not germane to the passing of the rent deposit order. As noted above, the plea now canvassed by the learned counsel was not agitated before the learned Rent Controller at the time of passing of the rent deposit order and whatever contentions were raised before the leaned Rent Controller, those were considered by the learned Rent Controller at the time of the passing of order dated 5-7-2001.
Upon the examination of the rent deposit order dated 5-7-2001, I find that the learned Rent Controller, after embarking upon every aspect of the case and noticing the respective stances of both the parties, proceeded to pass the clear and unambiguous order, thereby directing the appellant to deposit the arrears of rent as well as future monthly rent. To my mind, the rent deposit order is not only in accordance with record of the case but the same is also in consonance with the law on the subject.
8. Now coming to the other contentions raised by the learned counsel. It is true that rent deposit order should not be a vague order and the same ought to be specific and unambiguous. However, the learned counsel were unable to demonstrate that how the rent deposit order dated 5-7-2001 is non-specific, vague or uncertain. The directions of the learned Rent Controller, qua the deposit of the future rent, were clear, specific and absolute, as is evident from order dated 5-7-2001, wherein the following directions were passed:- "As far as future rent is concerned, respondent is also directed to deposit rent of Rs.42,000 per month by or 15th of every months and future rent will also be subject of statutory increase of 25%."
As noted above, the aforesaid order was neither vague, nor nonspecific nor uncertain, as unsuccessfully canvassed by the learned counsel. I am of the considered view that the loud and clear directions were imparted to .The appellant regarding the deposit of the future rent, that too in presence of the learned counsel for the parties. The contentions raised by the learned counsel in this regard are of little substance.
9. According to the stance of the appellant, as taken before the lower forums, it pleaded ignorance and lack of knowledge regarding the passing of the order of future monthly rent with increase of 25%. The appellant cannot be allowed to approbate and reprobate, as on the one hand it is challenging the rent deposit order and on the other hand, it had complied with the terms of the said order, although at a belated stage. The rent deposit order was in the knowledge of the appellant from its inception, as the same was passed in the presence of the learned counsel for the parties, inasmuch the said order was challenged by the appellant before this Court through filing the Constitutional petition (W.P. No.1620 of 2002), which petition was, however, withdrawn on 28-1-2002. Additionally, after the passing of the said order, the appellant filed a miscellaneous application before the learned Rent Controller, thereby showing its inability to deposit the rent before the decision of its preliminary objection.
10. It was also the case of the appellant, as pleaded before the learned Rent Controller, that increase by 25% in the monthly rent was applicable from the month of November 2001. Even if it be taken correct, even then the appellant was under obligation to deposit the rent for the month of November, 2001 with the addition of 25%, but admittedly, the appellants deposited the rent of the month of NoVember 2001 at the original rate i.e. Rs.42,000. On this count too the appellant has got no case.
11. Now coming to the question as to what would be the effect of non-compliance of order passed under section 13(6) of the Ordinance. The later part of the said provisions of law provides that "if a tenant makes default in compliance of such order then if he is the petitioners his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off..." It has been held in Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 557), that default under section 13(6) is of a peculiar nature. The appellant has nowhere taken the plea that the learned Rent Controller either' committed any illegality or exceeded from its jurisdiction, 'while passing the aforenoted order under section 13(6) of the Ordinance, thereby directing the appellant to deposit the arrears of rent and the future monthly rent. Admittedly, the appellant failed to comply with the terms of order passed by the learned Rent Controller, under section 13(6) of the Ordinance, therefore, the learned Rent Controller, rightly, in exercise of its powers under the said provisions of law, after coming to the conclusion that the appellant committed default in compliance with the terms of order, struck off the defence of the appellant and consequently accepted the ejectment petition. From the perusal of the provisions of section 13(6) of the Ordinance, it is evident that the same are mandatory in nature and if the learned Rent Controller comes to the conclusion that a default in compliance with the order passed under section 13(6) of the Ordinance has been committed, he has no discretion to decide whether or not he would enforce the aforesaid clause. In these circumstances, the learned Rent Controller is bund to abide by the .Said provisions of law and has no alternative/option to proceed otherwise. Under the law, when it is proved that non- compliance with the order of the learned Rent Controller, passed under section 13(6), has been made by the tenant, the learned Rent Controller had to strike-off the defence of the tenant. In the present case, the learned Rent Controller acted completely in accordance with law and rightly proceeded to strike-off the defence of the appellant for non-compliance of order passed under section 13(6) of the Ordinance, 1959, which order is legal, unexceptionable, apt to the facts and circumstances of the case and was passed by the learned Rent Controller in exercise of jurisdiction vested in him under the law. Needless to mention that in case of default of terms of order passed under section 13(6) of the Ordinance, the learned Rent Controller has no discretion to condone it. If any cases are needed judgments reported as Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 557) and Syed Muhammad Zaman v. Abdul Khaliq (1991 SCMR 1982) can be referred. The learned Appellate Authority has also rightly confirmed the findings of the learned Rent Controller on this issue.
12. Now turning to the judgments relied upon by the learned counsel for the appellants. Firstly as regards the case of Hassan Mehmood (ibid), it was held, in particular facts and circumstances of that case, that "order of the Rent Controller dated 27-10-1975 was likely to cause confusion and, may, therefore, have resulted in misguiding the respondent or his counsel in regard to the period of arrears of rent" and "it is expected that such order should specify clearly the period f(-* which the arrears are to be deposited in Court". The principles laid down in the said case are not attracted in the present case, as the said judgment mainly proceeds regarding the arrears of rent. Additionally, in the case in hand, there was no confusion or ambiguity in the rent deposit order. As noted above, the learned Rent Controller, in order dated 5-7-2001, has clearly held that infuture the appellants shall pay the rent subject to the increase of 25%. Furthermore, in the case cited, the Hon'ble Supreme Court of Pakistan upheld the judgments of first artd second Appellate Courts, which were concurrent. In the present case, the learned Rent Controller as well the First Appellate Court have concurrently held that the appellant has committed default in fulfilling the terms of the rent deposit order, and in view of the said principle, in the present case too, the concurrent judgments of the learned Rent Controller and Appellate Authority should be maintained. The case cited by the learned counsel is distinguishable from the case in hand on facts and law, in view whereof, the said judgment is of no avail to the appellants.
' As regards the case of Mst. Razia Begum (supra), it has been held that in case rent deposit order is not complied with, the learned Rent Controller would strike-off defence under section 13(6) and pass the ejectment order forthwith. It has further been held in that case that rent deposit order should be a specific order giving details. As noted above, the learned counsel for the appellant has failed to demonstrate that how the said judgment is applicable in the present case, as rent deposit order was a specific order, giving details about the rate of rent and the time of deposit.
' Similarly the case of Tauqeer Shahid, ibid, is not applicable in the present case, as a controversy about the "rent due" was not raised before the learned Rent Controller. According to the stance of the appellant the enhancement was to be made from November 2001 and it has committed default while depositing the rent for the month of November 2001. Judgment relied upon the learned counsel are of no avail to the appellants.
13. In the above perspective, I have examined both the impugned orders and find that they are unexceptionable, apt to the facts and circumstances of the case and do not call for any interference by this Court. I see no reason to unsettle the concurrent findings of facts arrived at by both the Courts below, hence both the orders are hereby maintained.
14. Upshot of the above discussion is that the instant appeal is devoid of merits, thus, stands dismissed in limine. However, as the appellant is, reportedly, running the Educational Institution in the premises in question, therefore, in view of the genuine difficulties of the students, who are likely to be disturbed a period of four months is allowed to the appellant to vacate the premises in question, so that it could make alternate arrangement for the shifting of the college.