ASHFAQ-UR-REHMAN KHAN., MAJID & CO., LAHORE vs Ch. MUHAMMAD AFZAL AND ANOTHER., Ch. MUHAMMAD AFZAL AND ANOTHER

1. M. R. KHAN, J.--These two appeals, by special leave, arise out of an order of the Rent Controller, dated the 25th February 1969 passed in proceedings for ejectment against the appellants under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance).

2. The two appellants have been in occupation of two separate shops in Jai Rain Building, Nila Gumbad, Lahore. The first respondent claimed to be the appellants' landlord In respect of the said two shops. On the 5th May 1959, he made two separate applications under section 13 of the Ordinance for ejectment of the appellants on the ground of default in payment of rent. On the 24th June 1959, the Rent Controller made an order directing Ashfaq-ur-Rehman, the appellant of Civil Appeal No, 213 of 1970, to deposit Rs, 3,150 as arrear rent and to deposit future rent at the rate of Rs, 67-3-3 pies per month by the 5th day of each succeeding month. On the same date, the Rent Controller made another order directing Majid & Company, Lahore the appellant in Civil Appeal No, 216 of 1970 to deposit arrear rent of Rs, 2,491 and future rent at the rate of Rs, 87 per month by the 5th day of the each succeeding month. Both the appellants fought up to this Court against the said orders of the Rent Controller on the ground that the portion of arrear rent which had become time- barred could not be directed to be deposited under section 13 (6) of the Ordinance. This Court accepted this contention of the appellants as correct and allowed their appeals, namely, Civil Appeals Nos, 89 and 90 of 1966, vide the judgment reported in PLD 1968 SC 230. Thereafter the High Court remanded the case of both the appellants to the Rent Controller directing him to proceed in accordance with law and in the light of the said judgment of this Court. After this first round of litigation, the Rent Controller passed a single order on the 25th February 1969 which governed both the applications for ejectment. The said order runs thus : "As the period of limitation in this case is 3 years, I direct the respondent Ishfaq Ahmad Khan to deposit rent at the rate of Rs, 67-3-3 per mensem with effect from 6-5-56 up to 28-2-69 on or before 25-3-69. The total amount comes to Rs, 7,815.41. In the other case I direct M/s. Majid & Company to deposit the arrears of rent at the rate of Rs, 87 per month with effect from 6-5-56 up to 28-2-69. The total amount comes to Rs, 10,247.36. Both the respondents are further directed to deposit the rent for March 1969, before 15th of April 1969, and to continue to deposit the monthly rent for the following months before the 15th day of the every succeeding month."

3. Being aggrieved by this order, the appellants successively moved the appellate Court and the High Court, but did not succeed. The appellants then obtained special leave to appeal against the decision of the High Court dismissing their respective Second Appeals. Leave was granted in these appeals, to determine whether the rent, which accumulates during the pendency of the ejectment proceedings, regardless of the period involved, is also included in the expression "rent due" occurring in section 13 (6) of the Ordinance. In other words, the point for consideration is whether any part of the rent falling due between the date of filing of the ejectment applications on the 5th May 1959 and the impugned order of the Rent Controller, dated the 25th February 1969, can be taken to have become barred under the statute of limitation. The answer to this, in view of the provision of section 13 (6) of the Ordinance and the facts of this case, is obviously in the negative.

4. Under the said section the Rent Controller is required to direct the tenant to deposit all the rent due from him, that is, all arrear rent not barred by time and further to deposit the monthly rent due from him before the fifth day of each succeeding month. This direction of the Rent Controller both as regards arrear rent and future rent, as has been held by this Court in Abdul Ghafoor v. Ahmad Kunhi is of an interim or interlocutory nature and remains operative till the final determination of the proceedings by the Rent Controller. After the commencement of the ejectment proceedings, the Rent Controller passed the following order on the 24th June 1959 in the application against the appellant Ashfaq-ur-Rehman.

5. "The respondent to deposit Rs, 3,150 by 10-7-59. Subsequent rent by the 5th of the following month."

6. On the said date, the Rent Controller passed the following order in the application against the appellant Majid & Co.

7. "The respondent to deposit Rs, 2,491 by 10-7-59. Subsequent rent by the 5th of the following month."

8. These orders of the Rent Controller were quoted in the appellants' respective earlier special leave Petitions Nos, 360 of 1961 and 361 of 1961 which resulted in the decision of this Court to the effect that the arrear rent which has become barred under the statute of limitation cannot be directed to be deposited pursuant to the provision of section 13 (6) of the Ordinance. In their respective earlier special leave petitions, the appellants admitted that they were complying with the Rent Controller's order, dated the 24th June 1959 by depositing monthly rent before the 5th of every succeeding month. Their admission was in the following words "The petitioner-appellant has, however, been complying with the order by deposit of subsequent monthly rent before the 5th of every following month."

9. As stated earlier, the first order of the Rent Controller, dated the 24th June 1959 directing deposit of arrear and future rent was an order of interim or interlocutory nature and the same shall remain operative till a final order is made by the Rent Controller in the pending proceedings for ejectment.

10. The Rent Controller is yet to make a final order in those proceedings. Hence, his first order directing deposit of future monthly rent till continues to remain in force. When the appellants, on their awn admission, have been depositing monthly rent in pursuance of the earlier operative order of the Rent Controller, they can make no grievance that some part of the rent falling due between the1 filing of the ejectment applications and the second order of the Rent Controller, dated the 25th February 1969 has become barred by limitation. When the Rent Controller's first order is still operative, it was not necessary for him to pass another order as re Bards deposit of monthly rent falling due after the filing of the ejsectment applications. It would have been sufficient compliance with this Court's decision in the appellants' earlier appeals reported in PLD 1968 SC 230 if the Rent Controller had merely modified his previous order by stating that the deposit of arrear rent for more than 3 years prior to the filing of the ejectment applications would not be necessary. By the impugned order, the Rent Controller directed payment of rent for 3 years prior to the filing of the ejectment applications and the rent accumulated during the pendency of those applications. The appellants do not plead limitation as regards arrear rent for the said 3 years, but they contend that the rent falling due three years before the Rent Controller's order of the 25th February 1969 and after the filing of the ejectment applications has become time-barred. This plea is not available to them in the face of their own admission that they have been depositing rent in terms of the first order of the Rent Controller which, as already stated, is still operative. If, in the meantime, the appellants have defaulted in depositing monthly rent pursuant to the first order of the Rent Controller, then, they are at fault for violating that order and, for that reason, they are all the more disentitled to plead the bar of limitation. Thus, the point on which leave was obtained by the appellants is of no substance.

11. Learned counsel for the petitioner wanted to press the question of jurisdiction of the Rent Controller and the wan t of relationship of landlord and tenant between them and the first respondent. Leave was not granted to consider these points and, as such the same cannot be permitted to be agitated in these appeals.

12. The appeals have no substance and are accordingly dismissed with costs.

13. It is now more than eleven and a half years the ejectment proceedings have been pending. These should , therefore, be disposed of as expeditiously as possible. PLD 1969 SC 424