MUHAMMAD SULTAN Versus BASHIR AHMAD

1. The appellant has challenged the order of eviction passed against him as a result of striking of his defence by the Rent Controller which has been upheld by the first appellate authority.

2. The admitted position in the case is that the Rent Controller passed the tentative rent order in the rent case instituted by the respondent against the appellant on 9.5‑1972, directing the appellant to deposit in Court a sum of Rs.2,709 as arrears of rent in four equal monthly installments payable on 30th May, 1972, 30th June, 1972, 30th July, 1972 and 30th August, 1972. The appellant was also directed to deposit current monthly rent commencing from 1‑5‑1972 at the rate of Rs.45 per month before 15th of each month. The above order passed by the Rent Controller was challenged in appeal by the appellant and on appeal stay was granted by the first appellate authority on 24‑5‑1972.

3. Mr. Akhtar Mahmood the learned counsel for respondent contends that this stay granted by the first appellate authority was only in respect of arrears and not the current rent but the copy of the order of first appellate authority which is available on record as Exh. 37 shows that the stay was sought of the orders dated 9‑5‑1972 and 25‑4‑1972 and ad interim stay of these orders was granted by the Court on condition of furnishing security in the sum of Rs.3,000 by the appellant within a week of the order. It is not disputed that the security was furnished by the appellant in terms of the aforesaid order but it is contended that the appeal filed by the appellant was dismissed on 19‑5‑1973 with the result, the stay granted by the Court stood vacated on that date. The appellant, thereafter preferred second appeal No. 196/73 to this Court in which stay was granted both in respect of arrears as well as future rent on condition of furnishing security by the appellant to the satisfaction of the Rent Controller. It is an admitted position that such security was furnished by the appellant, but it is contended by the learned counsel for the respondent that the security furnished by the appellant became void by reason of the death of the surety on 19‑12‑1973. The security was furnished by the appellant on 2‑7‑1973 and it appears that while the stay was operative and second appeal was pending in this Court, the appellant voluntarily deposited a sum of Rs.3,000 and Rs.43 on 10‑9‑1974 towards arrear and current monthly rent respectively and thereafter the appellant deposited the monthly rent in Court regularly according to the report of Nazir which is on record. The Second Appeal before this Court was dismissed on 10‑3‑1976 as not maintainable and upon dismissal of the appeal, the appellant deposited on 18‑3‑1976 a sum of Rs.924 being the difference of arrears of rent calculated at the rate of Rs.45 per month up to 10‑9‑1974. The respondent filed the first application for striking of the defence of appellant on the ground of non‑compliance of the order of Controller on 20th November, 1975 which was rejected by the Controller on account of tendency of Second Anneal Wn196171 in this Court‑ After dismissal of second appeal No. 196/73 by this Court, the respondent again filed another application under section 13(6) of the Ordinance on 15‑7‑1976. The Rent Controller accepted the second application and struck of the defence of the appellant holding that the arrears as deposited on 10‑9‑1974 by the appellant were short by Rs.924 and, therefore, the appellant committed default in complying with the tentative rent order passed in the case. It was also found by the Rent Controller in the above order that the appellant was guilty of violating the order of the High Court by failing to furnish the security as ordered by this Court in Second Appeal No. 196/1973 and that in spite of 8 adjournments obtained by the appellant he did not file objection to the application under section 13(6) of the Ordinance. On appeal the first appellants Court concurred with the Rent Controller on the point that after dismissal of Second Appeal No. 196/73 the deposit of Rs.924 by the appellant in Court on 18‑3‑1976 was not in accordance with tentative rent order and, therefore, there was clear default on the part of appellant. The first appellate Court however, found that the security was properly furnished by the appellant in compliance with the order of this Court in Second Appeal No. 196/73 and from the record of the Rent Case it also appears that objections to the application under section 13(6) of the Ordinance were duly filed before the Controller. On these considerations the first appellate authority confirmed the order of Rent Controller striking of the defence of the appellant.

4. Mr. Faiz Muhammad Soomro, the learned counsel for the appellant while assailing the above orders contended before me that there is no default at all on the part of the appellant in depositing either the arrears of rent or the current monthly rent. It is contended by the learned counsel that the appellant was allowed 113 days time by the Rent Controller to deposit the arrears of rent amounting to Rs.2709 while the current monthly rent for the month of May, 1972 was to be deposited before 15th of June, 1972. It is urged by the learned counsel that the operation of the order of Rent Controller was stayed by the first appellate authority on 24‑5‑1972 when even the first instalment of arrears of rent was not due and there was ample time available to appellant to deposit the current rent for May, 1972. The appellant had thus spent only 15 days out of the period of 113 days granted to him by the Controller for depositing the arrears of rent. It is further contended by the learned counsel for the appellant that on dismissal of the first appeal on 19‑5‑1973 the appellant spent only another 17 days out of the remaining period of 98 days available to him to deposit the arrears of rent in Court and therefore, when the difference of arrears of rent amounting to Rs.924 was deposited by the appellant on 18‑3‑1976. On dismissal of his Second Appeal, the appellant still had 73 days available to him to deposit the arrears of rent in Court and, therefore, there was no default. The learned counsel for the respondent on the other hand contended that on dismissal of his first appeal on 19‑5‑1973, the appellant should have deposited the entire arrears as well as current rent which was then outstanding immediately and his failure to do so amounted to a default in compliance with the order of the Controller, as there was no stay operative between period 19‑5‑1973 to 6‑6‑1973. It is further contended by the learned counsel that the appellant made the first deposit of rent in Court admittedly on 10‑9‑1974 when the security furnished by the appellant before the Rent Controller had become void by reasons of the death of surety, which took place according to the learned counsel on 19‑12‑1973. The alternate argument of the learned counsel is that in any case upon dismissal of Second Appeal by this Court on and should have also deposited the current monthly rent for February, 1976 before 15‑3‑1976. The deposit of difference of arrears on 18‑3‑1976, according to learned counsel, amounted to a clear default both in respect of arrears as well as current rent for the month of February, 1976. After considering the argu ments of the learned counsel on either side I am of the view that according to the report of Nazir available on record which is not disputed before me there appears to be no default in payment of monthly rent as monthly rent was being paid by the appellant regularly in Court after making the deposit) arrear of rent on 10.9‑1974. However, the point whether the depose of a sum of Rs.3,000 on 10‑9‑1974 and a further sum of Rs.924 on 18‑3‑1977 by the appellant amounted to a default or not in complying with the order of Controller in respect of arrears of rent needs consideration. It is an admitted position that the first appellate authority and this Court while dismissing the first and second appeals respectively against the tentative ten order did not fix any date for payment of arrears while the date fixed b the Rent Controller for deposit of arrears of rent had expired long ago. In these circumstances the rule laid down by the Supreme Court in the case of Ansari Brothers v. Holy Trinity Church (PLD1971SC700) was fully attracted and the appellant could deposit the arrears of rent within reasonable time in the absence of a direction in that behalf by the first and second appellate Authority. In Ansari Bothers' case the Rent Controller had directed the tenant to deposit the arrears of rent within 34 days. The tenant appealed against the tentative rent order but in so doing he spent 31 days before he was able to obtain the stay order from the First Appellate Authority. The First Appellate Court ultimately dismissed the appeal of tenant without fixing any date for payment of arrears of rent. When the matter came up before the Supreme Court finally it was held that n the absence of a direction in the order of First Appellate Authority fixing the date for payment of arrears of rent the tenant should have deposited the arrears within reasonable time of the dismissal of his first appeal and `reasonable time' in that case was held to be 3 days, the remaining period out of 34 days which was originally granted by the Controller to the tenant to deposit the arrears of rent in Court. Applying the above principle to the present case it is quite obvious that the Rent Controller had allowed 113 days time up to 30‑8‑1972 to the appellant to deposit the arrears of rent in Court. The appellant obtained the stay of the order of Rent Controller from first appellate authority after 15 days of the passing of the above order. The stay granted by the first appel late authority was vacated when the first appeal was dismissed on 19‑7‑1973. Within 18 days of the dismissal of" the first appeal the appellant again obtained stay of the order of Controller from this Court on 6‑6‑1973 in second appeal No. 196/73. The appellant deposited a sum of Rs.3,000 towards arrears of rent on 10‑9‑1974 when the Second Appeal filed by him in this Court was still pending and stay granted in the case was operative. The second appeal of the appellant was dismissed by this Court on 10‑3‑1976 and within 8 days of the dismissal of his Second Appeal, the appellant deposited Rs.924 being the difference of arrears of rent calculated up to 10‑9‑1974 at Rs.45 per month. It will thus be seen that out of the total period of 113 days allowed to the appellant by the Rent Controller to deposit arrears of rent, he spent 15 days before obtaining stay of the above order from first appellate Court. The appellant spent another 18 days when the stay granted by First Appellate Court was vacated as result of dismissal of his appeal and he was able to obtain stay from this Court. Again when the Second Appeal of appellant was dismissed by this Court and stay was vacated as a result thereof he deposited all the arrears of rent in Court within 8 days of the dismissal of appeal on 18‑3‑1976.

5. There was thus no default on the part of appellant in complying with the order of Rent Controller in depositing the arrears of rent in Court.) Mr. Akhtar Mahmood, however, raised an alternate plea by contending that the security furnished by the appellant pursuant to the order of this Court in Second Appeal No. 196/1973 became void automatically as a result o the death of the surety on 19‑12‑1973 and as the appellant did not furnish a fresh security thereafter he was guilty of the default. Firstly there is nothing on the record to show that the security furnished by the appellant before the Rent Controller was a personal security. Secondly if the surety C had died it was for the respondent to have brought this fact to the notice of this Court and to seek appropriate further order in that regard. In the absence of any specific direction to the appellant by the Court to furnish fresh security it cannot be said that the stay order granted by this Court stood vacated automatically as a result of the death of surety. It was last contended by Mr. Akhtar Mahmood that as the appellant had denied the relationship of landlord and tenant between the parties it was open to the Rent Controller as well as the first appellate authority to pass an order of eviction without holding further enquiry if it was found that relationship of landlord and tenant existed between the parties. The learned counsel accordingly contended that instead of sending the case back to the Court of Rent Controller now I should exercise that power and pass an order of ejectment against the appellant straight away in the circumstances of the case. In support of his contention the learned counsel has relied upon the cases of Nisar Ahmad v. Nazar Muhammad (PLD 1974 Lah.489), Sikandar Khan v. Muhammad Amin (PLD 1979 Kar.59), Ishrat Hussain and another v. Subedar alias Suba (1975 SCMR 19) and Amanullah Khan v. Chotey Khan (1978 SCMR 14).

6. In the first referred two cases the tenants had denied the existence of relationship of landlord and tenant between the parties. The Courts below in both the cases found on enquiry that relationship of landlord and tenant existed between the parties and that the denial of tenant was based on frivolous ground. It was further found in those cases that the tenant had admitted non‑payment of rent on the ground of denial of tenancy. It was in these circumstances that the High Court in the above 2 cases held that the order of ejectment against the tenants without holding any further enquiry was justified. In the Ishrat Hussain's case, the tenant had disputed the relationship of landlord and tenant between the parties on the grounds that the property number of the shop was not correctly indicated in the ejectment application and that no valid notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act was served by the transferee before institution of the rent case. The Rent Controller as well as the first and second appellate authority held against the tenant on both the above points and it was further found by the second appellate authority that the tenant had admitted that he had never paid any rent to the transferee. It was in these circumstances that the Supreme Court held that no useful purpose will be served by remanding the case back to the Rent Controller for further inquiry and accordingly the order of remand made by the High Court for further enquiry was set aside. In the last mentioned case the High Court while hearing Second Appeal against the order of remand made by the first Appellate Authority came to the conclusion that in view of admitted default in payment of rent no useful purpose will be served by sending the case back to Rent Controller and accordingly order of ejectment was passed by the High Court. The Supreme Court refused to interfere with the order of High Court in view of the admitted default of the tenant. In the case before me, firstly the order striking of the defence of appellant has been found by me to be invalid and secondly the Courts below did not find that the denial of relationship of landlord and tenant between the parties by the appellant was based on frivolous grounds. Apart from it in the connected revision filed by the respondent I have already held that the suit filed by the appellant challenging the transfer of property to the respondent is to proceed on merits and the rejection of the plaint under a Order VII, rule 11, C. P. C. was not justified. In these circumstances I am not inclined to pass an order of ejectment against the appellant without farther enquiry on the ground of denial of relationship of landlord an tenant between the parties by the appellant. The order impugned before me was passed under section 13(6) of the Ordinance striking of the defence of the appellant which has been found to be invalid and it will only be proper that the case is sent back to the Rent Controller for further proceeding in accordance with law. 1 accordingly accept this appeal, set aside the orders of the Courts below and remand the case back to the Rent Controller for disposal according to law. There will, however be no order as to costs in the circumstances of the case.

7. M. Y. H. Appeal accepted.