Raja SOHAIL JAVED and others vs Raja ATIQ-UR-REHMAN

ORDER

' ABDUL HAMEED DOGAR, C J.---Through this order we intend to dispose of Civil Petitions Nos.801 and 802 of 2007 filed against common order dated 7-6-2007 passed by learned Single Judge of Lahore High Court, Lahore whereby S.A.Os. Nos. 64 and 65 of 2007 filed by petitioners were dismissed.

2. Briefly stated, facts leading to the filing of instant petitions are that learned Rent Controller vide order dated 4-9-2006 fixed tentative rent of the premises at the rate of Rs,4500 per month and calculated the same from period of institution of petition i,e, May, 2006 to July, 2006 thus past rent came to Rs,13,500 and petitioners were directed to pay the same before 5-8-2006. It was also mentioned that in case of default of the deposit by petitioners their defense shall be struck off.

Petitioners were also directed to keep on depositing the monthly rent at the rate of Rs,4,500 till the final disposal of the petition. The petitioners could not deposit future rent on the ground that petitioners Raja Karamat Ullah became sick and was hospitalized; Raja Sohail Javed being his son was attending him in the hospital who ultimately expired.

2. It is mainly contended by Mr. Nazir Ahmed Bhutta, learned counsel for the petitioners that learned Rent Controller as well the learned High Court have failed to take into consideration the provisions of subsection (6) of the section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) and did not fix date for payment of monthly rent which is mandatory as such petitioners were not at fault in non-depositing the rent in time. It is further contended that reasons submitted by petitioners for non-deposit of the rent in time were also not considered. According to him, however, entire rent has been deposited in compliance with the order dated 10-3-2008 of this Court and there is nothing due against petitioners.

3. On the other hand learned counsel appearing on behalf of respondent opposed the above contentions and submitted that learned Rent Controller had complied with the provisions of subsection (6) of section 13 of the Ordinance while passing tentative rent order.

4. We have gone through the order of the learned Rent Controller which on the face of it is defective as the provisions of subsection (6) of section 13 of the Ordinance which stipulates that after the date and before the issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the (fifteenth) day of each month the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord be put into possession of the property without taking any further proceedings in the case. The above being mandatory provision has neither been complied with by learned Rent Controller nor attended to by learned High Court in the impugned order. Thus, both are not sustainable in law and are set aside. Moreover, petitioners have deposited rent due in pursuance of order dated 10-3-2008 of this Court, which may be paid to the respondent. Accordingly, both the petitions are converted into appeals and are allowed. The matter is remitted to the learned Rent Controller for decision afresh on merits and in accordance with law.