NAMER GUL Versus JALAMBAR

Jalambar respondent/landlord filed eviction petition, under section 13 of Rent Restriction Ordinance, 1959 against the appellants/tenants in the Court of learned Rent Controller, Swat. The said petition was resisted by the appellants/tenants by filing written statement. It was however, on 25‑5‑2004 that the respondent/landlord filed an application for striking off the defence of the appellants /tenants. The said application was also resisted by the appellants by filing reply. The learned Rent Controller, after hearing the learned counsel for the parties dismissed the application vide his order dated 13‑9‑2004. Feeling aggrieved with the said order the respondent/landlord filed appeal in the Court of learned Additional District Judge, which was allowed vide judgment/order dated 24‑10‑2004 and eviction order, against the appellants was passed: Being not satisfied with the impugned judgment/order passed by the learned Appellate Court the appellants have filed the Second Appeal in hand.

2. Mr. Shamsher Ali Khan, Advocate the learned counsel representing the appellant argued that the allegation of the respondent/landlord was that the appellants had defaulted in payment of rent of December, 2003, but in fact rent for the month of December 2003 had been deposited vide Challan No. 108 on 13‑12‑2003, which fact could easily be verified from the report of the Muharrir given on the application submitted by appellants for return/adjustment of rent for the month of December, 2003 deposited twice.

3. It was also argued that the learned Rent Controller did not provide an opportunity to the appellants to produce evidence to show that they were not wilful defaulters, but the application for striking off defence was summarily decided after hearing the learned counsel for the parties. Reliance was placed on PLD 1965 Peshawar 101.

4. On the other hand Mr. Ali Haider, Advocate the learned counsel representing the respondent/landlord argued that the learned Rent Controller had passed order for deposit of rent on 20-11‑2003. According to the said order the appellants was liable to deposit monthly rent before 15th of each month, but they failed to deposit monthly rent for the months of November and December, 2003, January and February, 2004. They were habitual rent defaulters, hence eviction order against them was properly passed by the learned lower Appellate Court.

5. It was further argued that the appellants/tenants failed to deposit monthly rent for December, 2003. In fact rent for the month of November, 2003 had been deposited vide Challan No. 108 dated 13‑12‑2003, which by misstatement by the appellants was considered by the learned trial Court to be rent for the month of December; 2003. In fact while realizing and appreciating that the appellants had not at all deposited the monthly rent for December, 2003. The learned Rent Controller directed the appellants to deposit monthly rent for December, 2003 within three days vide his order dated 13‑9‑2004. He stated that there was no provision in the Rent Restriction Ordinance empowering the Rent Controller to direct the tenants for the second time to deposit the rent for the defaulted period, hence the said order was illegal, against which appeal was filed and the learned Appellate Court had rightly appreciated the legal position in this regard.

6. It was further argued that not only the requirement of section 13(6) of Rent Restriction Ordinance, 1959 was that in case of default committed by the tenant summary proceedings against them would be conducted and they would be evicted from the property in dispute, but it was held in a number of Judgments that there was no need to record evidence if default in payment of rent could be ascertained from the record. Reliance in this regard. Was placed on PLD 1983 Karachi 4245, PLD 1980 Lahore 316, 1979 CLC 444, PLD 1983 SC 176, 1982 SCMR 616, 1982 SCMR 1160, 1980 SCMR 3102, 1985 SCMR 21, 1983 SCMR 271, 1973 SCMR 243, 1981 SCMR 799, 1982 SCMR 392, 1992 MLD Lahore 1577, 1994 MLD Lahore 596 & 1996 MLD Lahore 138.

7. I have heard the learned counsel for the parties at length and perused the‑ available record.

8. It was on 20‑11‑2003 that the learned Rent Controller passed the following order directing the appellants/tenants to deposit the monthly rent. The said order is reproduced for convenience.

9. The perusal of the above order shows that there was no ambiguity in the said order as the same had been passed in simple/clear words. The appellants in order to comply with the said order submitted application on the same day i.e. on 20‑11‑2003 for grant of permission to deposit Rs.5,000 rent for the month of October, 2003. They deposited the said rent (for October) on 22‑11‑2003. They moved application for grant of permission to deposit monthly rent for November, 2003 at the rate of Rs.5,000, which was allowed and they deposited the said rent on 13‑12‑2003 vide Challan No. 108. The successive applications for, deposit of rent show that they clearly understood and were aware of the rent deposit order dated 20‑11‑2003. For December, 2003 no application whatsoever is available on record for seeking permission to deposit rent for the month of December, 2003.

10. The contention of the learned counsel for the appellants that rent for the month of December, 2003 was deposited vide Challan No. 108 dated 13‑12‑2003 has no force, because the perusal of Challan No.108 dated 13‑12‑2003 through which a sum of Rs.5000 was deposited clearly shows that the amount so deposited was rent for the month of November, 2003. This, position was properly appreciated by the learned Rent Controller and that was the reason that he vide order dated 13‑9‑2004 once again directed the appellants to deposit rent for the month of December, 2003 within three days. He did not challenge the said order and made an application on 14‑9‑2004 seeking permission to deposit Rs.5,000 rent for the month of December, 2003. Had they earlier deposited rent for the month of December 2003, he would have challenged the order dated 13‑9‑2004 as to why they should deposit rent for December, 2003 again, but as mentioned above they failed to do so. They, however, submitted an application on 24‑9‑2004 for refund of Rs.5;000 deposited towards monthly rent of December, 2003. The learned Rent Controller asked for the report of the Muharrir, who in fact misled the Court by writing report that rent for December, 2003 had already been deposited vide Challan No.108. The learned Rent Controller without going through his own order dated 13‑9‑2004 and while blindly relying upon the report of the Muharrir directed that the rent for December, 2003 be considered for the month of October, 2004. On the one hand the learned trial Court had held that the appellants had defaulted in payment of rent for December, 2003 and in the same order he had held that the said default was not willful. The perusal of the reply to the application for striking off defence shows that the appellants did not come‑up with clean hands that they could not 'deposit rent for the month of December, 2003. They also did not put forth any reason or disability or circumstances which were unavoidable and beyond their control due to which they could not deposit the said rent in time as per directions of the learned trial Court, but their plea was that they had deposited the rent for the month of December, 2003 vide Challan No. 108 on 13‑12‑2003, which plea was neither accepted by the learned Rent Controller nor the decision/order of the learned trial Court was challenged by the appellants.

11. The argument of the learned counsel for the appellants that appellants were not provided an opportunity to lead evidence to show that they were not wilful defaulters has no force. As mentioned above, the appellants in their written reply to the application for striking off defence had not taken up the plea that they could not deposit the rent for December, 2003 due to any reason beyond their control, but instead they took up the plea that the rent for December, 2003 stood deposited. Section 13(6) is reproduced hereunder for the sake of convenience:‑‑

"In proceedings under this section on the first date of hearing or as soon as possible after that date and before 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 put into possession of the property without taking any further proceedings in the case.

The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."

12. The plain reading of above quoted subsection (6) of section 13 of Rent Restriction Ordinance shows that in case of tenant making default in compliance of rent deposit order passed by Rent Controller, then if he is petitioner, his petition shall be dismissed summarily and if he is respondent, his defence shall be struck off and landlord put into possession of the property without taking any further proceedings in the case.

13. The Scheme laid down in section 13(6) seems to be that Legislature, is not minded to protect a tenant and would even not pay the monthly rent regularly even on the orders of Rent Controller. Said conduct and behaviour forfeit the special protection under the Ordinance conferred on tenant. In Muhammad Hassan Khan and others v. Mirza Abdul Hamid (1981 SCMR 799) it was held:‑‑

We regret we see no substance in these submissions. The order made by the Rent Controller on the 18th of July, 1972 , was clear and unambiguous and there could be no question of misinterpreting or misunderstanding this order. For the same reason, there was no necessity of framing any specific issue on the point. The position is simple, namely, that the petitioners did fail to pay the rent for the month of August, 1972, by or before the stipulated date, and the explanation rendered for the failure is clearly untenable. This was, therefore, a case in which default had indeed been committed in complying with the order of the Rent Controller."

14. Keeping in view the mandatory provisions of section 13 (6) of West Pakistan Rent Restriction Ordinance, 1959, and the judgment quoted above it can be safely held that no illegality was committed by the trial Court in summarily deciding the application for striking off defence.

15. The learned lower Appellate Court has rightly appreciated the legal position while allowing appeal of the respondent/landlord and I have not been able to find out any illegality warranting interference in the impugned judgment/order.

Resultantly, the appeal in hand is dismissed. The appellants are directed to hand over vacant possession of the property in dispute within a period of, two months to the respondent/landlord. These shall be no order at to costs.

H.B.T./317/P Appeal dismissed.