MUSHTAQ AHMAD KIANI vs BILAL UMAIR and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Mushtaq Ahmad Kiani, seeks leave to appeal from the judgment dated 6-11-2008 of a learned Judge in Chambers of Islamabad High Court, whereby, the petitioner stood ejected from the premises for violating order under section 17(8) of Islamabad Rent Restriction Ordinance, 2001 passed by the learned Rent Controller.

2. During ejectment petition filed by Bilal Omair and another, the petitioner filed written reply. As the required relationship was not denied, the Rent Controller, vide order dated 1-11-2007, under section 17(8) of Islamabad Rent Restriction Ordinance, 2001, directed the tenant either to produce receipts of payment of rent from January, 2006 to October, 2007 or to deposit such arrears of rent at the rate of Rs,28,750 per month on or before 14-12-2007. Learned counsel for the tenant sought the extension of time for production of receipts for the payment of disputed rent. The learned Rent Controller extended the time to 6-2-2008. On the said date, once again the extension was sought but the Rent Controller directed the straightway ejectment of the tenant under section 17(9) of the Ordinance. Tenant went in appeal before the learned Additional District Judge Islamabad which was also dismissed on 12-9-2008. This order was further challenged through writ petition which met the same fate and hence this petition.

3. For facility of reference, subsections (8) and (9) of the Islamabad Rent Restriction Ordinance, 2001 are reproduced below:--- "(8). In proceedings under this section on the first date of hearing, or as soon thereafter as may be but before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date 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 which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately.

(9) If the tenant fails to deposit the amount of rent before the specified date or, as the case may be, before the fifteenth day of the month, his application, if he is an applicant shall be dismissed or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings."

4. In the instant case, the tenant was directed under section 17(8) of the Ordinance to deposit the rent on or before 14-12-2007. The consequences of non-deposit or non-compliance of the order of the Rent Controller are given in subsection (9) where no discretion is left with the Rent Controller except to order the ejectment of the tenant without further proceedings. The language of subsection (9) makes the order mandatory.

5. One cannot avoid taking notice of the fact that the learned Rent Controller, instead of passing an order under section 17(9) of the Ordinance on 14-12-2007, extended the period of deposit to 6-2- 2008. Although the extension could not have been granted yet, to the good luck of the landlord, the rent could not be deposited even on 6-2-2008. The Rent Controller was under obligation to pass the ejectment order of tenant without further proceedings. The order so passed under section 17(9) of the Ordinance was rightly upheld by the learned First Appellate Court as well as by the learned High Court exercising constitutional jurisdiction. The petition being meritless is hereby dismissed and leave to appeal refused.