IMDAD ALI Versus MUHAMMAD LATIF
This second appeal has been filed by the appellant, Dr. Imdad Ali to challenge an orde for his eviction from a house.
2. The impugned order was made on art" application for ejectment, filed by the respondent, Muhammad Latif alleging, inter alia, that the appellant had not paid rent as well as water charges for certain period. Thereupon, the Rent Controller, who was dealing with the application, made an order, under subsection (6) of section 13 of the West Pakistan. Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, directing the appellant to deposit Rs. 360 as arrears of rent and Rs. 300 as water charges before 26th of November, 1977. The appellant deposited the arrears of rent but not those of the water charges. The learned Rent Controller, struck off his defence and directed him to vacate the house in question. His first appeal to an Additional District Judge has also failed.
2. Learned counsel for the appellant contended that the order made by the learned Rent Controller under the first part of subsection (6) of section 13 of the Ordinance was not in accordance with law inasmuch as under that provision of law he could not direct him to deposit the arrears of water charges. He also maintained that since the aforesaid order was illegal the learned Rent Controller could not strike off the defence of the appellant and order his eviction for not depositing the arrears of water charges.
3. In reply, learned counsel for the respondent urged that the water charges were also rent for the purpose of subsection (6) of section 13 and, therefore, the order of the learned Rent Controller did not suffer from any legal infirmity. He relied on the Explanation appearing at the end of subsection (2) of section 13 to support his plea.
4. The relevant portion of subsection (2) (including clause (i) thereof) together with the said Explanation read thus :-
"(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that -
(i) the tenant has not paid or tendered rent due by him in respect of the building or rented land, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord, or in absence of any such agreement within sixty days from the period for which the rent is payable ............... the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he .shall make an order rejecting the application............
Explanation.-For the purpose of clause (i) -
(a) where the water charges or electricity charges or both are payable by the tenant to the landlord such charges shall be deemed to be rent ;
(b) rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated shall be deemed to have been duly tendered."
5. It was submitted by the learned counsel for the respondent that since the learned Rent Controller could direct the appellant, under sub section (6) of section 13, to deposit the "rent due from him" and the "monthly rent due" he could, in view of the words "rent due" occurring in clause (i) of subsection (2) read with the aforesaid Explanation, direct him to deposit the water charges as well.
6. While commenting on the argument of the learned counsel for the respondent, it was contended by the learned counsel for the appellant that as it would appear from the opening words of the Explanation, it had been added for the purpose of clause (f) of subsection (2) of section 13 of the Ordinance and therefore, it was not available for the whole of the Ordinance. If the intention of the Legislature had been to apply the Explanation to all the provisions of the Ordinance, it would have appeared as a definition in clause (2) of the Ordinance or if the Legislature wanted it to be read into subsection (6) of section 13 or the whole of section 13, it would have been placed and worded differently. He was, therefore, of the view that since the Explanation was .for the purpose of clause (i) of subsection (2) of section 13 only and the direction in question was given by the learned Rent Controller under subsection (6) of section 13, he could not make use of the Explanation for ordering the appellant to deposit water charges.
7. Since the aforesaid Explanation appears at the end of subsection (2) of section 13 and has been added for the purpose of clause (i) of subsec tion (2), prima facie, there is considerable force in the proposition propounded by the learned counsel for the respondent that the Explanation cannot be exploited for the purpose of subsection (6) of section 13, but a closer examination would reveal that the above proposition is not acceptable. Under subsection (6), the Rent Controller is required to direct the tenant to deposit not only the arrears of rent but also the future rent. The object behind this provision was to save the parties from fresh litigation in relation to the recovery of the rent which falls due before the initiation of ejectment proceedings or becomes due during the pendency of those proceedings b,-fore the Rent Controller. The expression "rent due" occurs in subsection (6) both in the context of the arrears of rent as well as future rent. This expression has also been used in subsection (2) of section 13, which, in view of the Explanation given at the end of sub section (2), includes the water charges payable by the tenant to the landlord. The word "rent" or the expression "rent due" has not been defined elsewhere in the Ordinance. Therefore, for the purpose of understanding the true import of the expression "rent due" appearing in subsection (6) a reference can legitimately be made to the meaning which the Legislature intended to give to the said expression while using it in clause (i) of section (2), especially when default in the payment of "rent due" which entitles a landlord to seek ejectment of the tenant, under clause (i) of subsection (2), is the same which is to be attended to by the Rent Controller while making order under section (6) with a view to ensuring that the landlord also gets the rent due from the tenant which was not paid by him before the launching of the ejectment proceedings. This approach would also promote the object for which the framers of law had included sub-section (6) in section 13 of the Ordinance. I, therefore, agree with the learned counsel for the respondent that in view of the provisions of sub A section0) read with subsection (2) and the Explanation referred to above,) the rent would include water charges payable by the tenant to the; landlord.
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8. As noted just above, the water charges can be treated as rent if they are payable by the tenant to the landlord. This has been clearly laid down in the Explanation occurring at the end of subsection (2) of 13 of the Ordinance. There is, however, nothing on the record to show that the appellant, in the present case, was required to pay water charges to the respondent. No assertion in this behalf was made by the respondent in his ejectment application. A photostat copy of the lease deed placed on the record would show that the rent was to be paid to the landlord but there is no stipulation to the 'effect that the water charges shall also be paid to him. What has been stated in the lease deed is only this much that the appellant shall be responsible to pay the water charges. Normally, such charges are paid to the local authorities (Lahore Development Authority) in the instant case). In the circumstances, it cannot be held that in the, case before me the water charges were required to be paid by the appellant! to the respondent. Therefore, they cannot be deemed to be rent in terms of the Explanation relied upon by the learned counsel for the respondent.
9. What emerges from the whole discussion is that the water charges involved in the present case could not be treated as rent and, therefore the learned Rent Controller had erred in directing the appellant to deposit those charges. His order, dated the 31st October, 1977, in so far as it relates to the deposit of water charges, is contrary to law and, therefore, the appellant's ejectment could not be ordered by striking off his defence due to his failure to deposit the said charges.
10. In result, I accept. the appeal, set aside the order of eviction passed against the appellant as also order, dated the 31st October, 1977, of the learned Rent Controller, in so far as it pertains to the deposit of water charges, and remand the case for further hearing and fresh decision. I am informed that the office of the Rent Controller who had decided the ejectment application earlier has since been abolished. 1, therefore, send this case to Mr. Ijaz Mahmood Chaudhary, Rent Controller, Lahore, for the aforesaid, purpose. The appeal is, accordingly, accepted with no orders to costs.
11. The parties are directed to appear before the learned Rent Con troller on 21st June, 1979.
K. M. A. Petition accepted.