SHAMSHAD ALI vs GHULAM MUHAMMAD CHAUDHRY and another

' RAJA SAEED AKRAM KHAN, J.--- This writ petition has been filed against the judgment, dated 14-5- 2008, passed by learned Additional District Judge, Islamabad, whereby he upheld the order passed by learned Rent Controller, Islamabad, dated 24-10-2007.

2. Brief facts leading to this constitutional petition, are that the respondent No,1/landlord filed an ejectment petition, in respect of Shops Nos.6 and 23(GF), 37 Zakria Plaza G-9 Markaz Islamabad, against the present petitioner/tenant on the grounds of expiration of agreement, personal need, rent default and sub-letting the portion of said shop by the petitioner/tenant.

3. The petitioner/tenant contested the ejectment petition through filing written reply. After filing the written reply on behalf of petitioner/ tenant, learned Rent Controller passed an order under section 17(8) of Islamabad Rent Restriction Ordinance, 2001 on 21-8-2007 directing the petitioner/tenant to deposit Rs,4,41,247 till 6-9-2007. As per version of the petitioner, rent up till July, 2006 was already paid and he deposited only Rs,1,33,588 being rent for 13 months, but the learned Rent Controller passed the order under section 17(9) (ibid), for eviction of the petitioner/tenant, while striking off his defence, which was assailed by the petitioner in appeal. Learned Additional District Judge, Islamabad vide impugned judgment dated 14-5-2008 dismissed the appeal and upheld the order of learned Rent Controller dated 21-8-2007. Feeling aggrieved, the petitioner has preferred this writ petition, with the following prayer:--- "It is therefore, humbly prayed that the writ petition be allowed and the impugned order and judgment passed by, the Courts below may kindly be set aside and the case of the petitioner be heard/decided on merits. Any other relief, which this Honourable Court deems fit and proper be also awarded to the petitioner."

4. Learned counsel for the petitioner has submitted that both the Courts below have failed to appreciate the law on the subject and not applied their judicial mind while passing the order and judgment, on the ground of non-compliance of Court order. He further contends that he was continuously paying rent to the respondent/landlord, but he never issued any receipt in this regard, therefore, he is not defaulter and this fact has been totally ignored by both the Courts below. He adds that correct version of the petitioner was not recorded by the Courts below. He has finally argued that the petitioner never refused to deposit the rent, whereas, sufficient opportunity was not provided to him and he is still ready to deposit the due rent, therefore, he is not wilful defaulter.

5. On the other hand, learned counsel for the respondents, who put appearance in response to the pre-admission notice issued by this Court, has submitted that relationship of landlord and tenant is not denied; that it is admitted position that order under section 17(8), Islamabad Rent Restriction Ordinance, 2001 passed by Rent Controller was not complied with by the petitioner, whereupon, learned Rent Controller rightly passed the order under section 17(9) (ibid). He further argues that both the order and judgment of Courts below are, quite legal and there is no illegality or irregularity in the same. He has lastly argued that the person, who did not comply the order of Court, is not entitled to any relief. He has further submitted that the petitioner has violated the terms and conditions of the agreement and sub-let portion of the shop to one Mukhtar.

6. I have heard the arguments advanced by learned counsel for the parties and gone through the judgment and order passed by the learned Additional District Judge and Rent Controller.

7. Relationship of landlord and tenant is admitted. During pendency of ejectment petition, learned Rent Controller passed the order for deposit of due rent under section 17(8), Islamabad Rent Restriction Ordinance, 2001, which is reproduced as under:- "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 fifteenth day of each month, the monthly rent which subsequently becomes due, and shall determine such amount approximately."

8. Upon non-compliance of said order he passed order under section 17(9) (ibid), which is also reproduced, hereunder:--- "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."

9. After bare reading of both sections above, it appears that learned Rent Controller was fully competent under the law to pass the ejectment order and striking off the defence of tenant in case of non-compliance of order passed under section 17(8), Islamabad Rent Restriction Ordinance, 2001. There is nothing on record, in support of version of the petitioner that he was not defaulter and he was continuously paying the rent. Both the Courts below have rightly observed that no receipt in this regard has been produced before any forum, which has also transpired that the petitioner not only disobeyed the order regarding deposit of total due rent Rs,4,41,247, but also not obeyed the order regarding deposit of monthly rent at the rate of Rs,10,276 w,e,f, 1-7-2006 uptill now.

Honourable Supreme Court of Pakistan in case re: Muhammad Yousaf v. Muhammad Bashir reported as 1990 SCM R 557, has observed as under:-- "The default under section 13(6) is of a peculiar nature. As held by this Court the Rent Controller has no discretion to condone it as distinguishable from the default in payment of rent relatable to the other provision of section 13."

10. Both the Courts below have given concurrent findings regarding non-compliance of order by the petitioner, which cannot be disturbed while exercising powers in the writ jurisdiction, when no illegality or irregularity could be pointed out. There is nothing on record to suggest that misreading and non-reading of evidence has been made by the learned Courts below. The petitioner has failed to satisfy this Court that he has complied the order of learned Rent Controller. He did not comply the order of learned Rent Controller for deposit of rent due, therefore, he was fully competent to pass order under section 17(9), Islamabad Rent Restriction Ordinance, 2001, which was rightly upheld by learned Appellate Court.

11. What has been discussed above, I am of the considered view that the order passed by both the Courts below are quite legal, having no illegality, irregularity or infirmity, which do not call for any interference. This petition is, therefore, hereby dismissed. The petitioner is directed to hand over the possession of shops to the respondent within 2 months from today.