MUHAMMAD ZUBAIR Versus Mian MUHAMMAD ZIA

MIAN MUHAMMAD AJMAL, J.--- Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar, dated 3-11-2003, whereby F.A.O. No.226 of 1998 of the petitioner was dismissed and it was held that his right of defence was rightly struck off by the Additional Controller of Rents, Peshawar Cantt. (hereinafter to be called the Controller) and thus no exception could be taken to the order impugned therein.

2. Brief facts are that the respondents Nos. 1 to 7 filed a petition under section 17 of the Cantonments Rent Restriction Act, 1963 (hereinafter to be called the Act) against the petitioner for his ejectment from Shop No.399 (94 A/31), Kawatra Building Arbab Road, Peshawar Cantt. on the ground of default in payment of rent. It was alleged in the petition that keeping in view the location and area of the shop its monthly rent could not be less than Rs.10,000 and also claimed arrears of Rs.3,60,000 for three years at the said rate. In written statement, petitioner denied the allegations and submitted that shop in dispute was an evacuee property and has been in his possession prior to its transfer to the respondents on monthly rent of Rs.76. He never defaulted in the payment of rent and after the issuance of P.T.O. rent was tendered which was refused due to dispute amongst the transferors over the transfer of the property and payment of transfer price. The petitioner in the circumstances started depositing the rent in bank with the permission of the Controller. He submitted that the respondents did not even pay the taxes of the property which were paid by the petitioner on the direction of the Executive Officer with the assurance that the same would be adjusted against the rent of the shop. He submitted that in such state of affairs, question of default of payment of rent does not arise and the petition being mala fide and frivolous be dismissed with special costs. For determination of the tentative monthly rent, the Controller vide his order, dated 19-11-1997 appointed Local Commissioner to ascertain the area of all the twenty shops in dispute which included the petitioner's shop and to submit his report on 27-11-1997. According to the Commissioner's report the area of the shop of the petitioner was 882.43 sq. ft. The Controller vide his order, dated 28-11-1997 fixed the approximate monthly rent @ of Rs.5 per sq. ft. for the covered area of tire shop as determined by the Commission and to be worked out jointly by, the counsel for the parties, from the date of filing of application and the petitioner was directed under section 17(8) of the Act to deposit rent in National Bank of Pakistan, Saddar Bazar Branch, Peshawar before the next date of hearing i.e. 2-1-1998 and should despite monthly rent before 5th of each succeeding month. On 2-1-1998 the petitioner moved two applications, in one of them the area of the shop as reported by the Local' Commissioner was stated to be highly exaggerated as according to earlier measurement of the draughtsman of Cantonment Board, the area reported was 552 sq. ft. and in the other application it was stated that the tentative rent was to be calculated jointly by the counsel for the parties and since they have not met so far to work out the amount to be deposited therefore, respondents counsel be directed to contact his counsel for calculation of the amount of arrears of rent. On the same day respondents also filed an application under section 17(9) of the Act for striking off the defence of the petitioner as he failed to comply with the order of deposit of rent before the specified date. The petitioner moved yet another application on 6-1-1998 wherein he stated that despite the non-calculation of the amount of rent in joint sitting of the counsel for the parties, the petitioner be allowed to deposit the arrears in fortnightly instalments. The report of the Local Commissioner was objected to by the petitioner through another objection petition, dated 13-2-1998 whereupon the Controller directed the Local Commissioner to re ascertain the area of the shop which was re-measured in presence of the counsel for the parties on 16-3-1998 and its area came out to be 725.55 sq. ft. On 28-9-1998 the Controller on acceptance of the respondents application, struck off the defence of the petitioner by the following order:---

"The order sheet dated 28-11-1997 recorded by my predecessor had clearly directed that the arrears from the date of institution of petition are to be deposited before 2-1-1998 while according to the statement of C.W. Raj Muhammad an employee of concerned Bank respondent has in compliance with Court order made the first deposit in the sum of Rs.2760 on 7-1-1998: Even on this dale the entire arrears had not been deposited and thus Court order, dated 28-11-1998 was violated. This fact is further proved from the record of the case when on 6-1-1998 respondent moved an application before my predecessor requesting for allowing him to deposit the arrears in instalments on the plea of his weak financial position. Since the date for deposit had already expired and respondent had admittedly not complied with Court order, hence application like the aforesaid could not legally benefit the respondent.

Respondent has not complied with the order, dated 28-11-1997, hence his defence is liable to be struck off. Consequently application, dated 2-1-1998 filed by petitioners is accepted and defence of the respondent is struck off under section 17(9), Cantonments Rent Restriction Act, 1963. He is directed to put the petitioners into vacant possession of the property in question forthwith. "

The petitioner challenged the aforesaid order before the Peshawar High Court, Peshawar through F.A.O. No.226 of 1998 which was dismissed, vide judgment impugned herein.

3. Learned counsel for the petitioner contended that the shop in dispute was an evacuee property and its monthly rent of Rs.76was fixed by the Settlement Department. Since the question of transfer of the property remained under litigation for a long time, therefore, he applied to the Controller for allowing him to deposit the monthly rent in bank. The said application was allowed and the petitioner has been regularly depositing the rent in compliance with the order of the Controller. He submitted that after the institution of the ejectment application the Controller fixed the approximate monthly rent of the shop at $s.5 per sq ft. for the covered area as determined through Commission and to be worked out jointly by the counsel for the parties from the date of filing of the ejectment application. The Local Commissioner in his first report reported the area of the disputed shop to be 842.43 sq. ft. This report was objected to by the petitioner on 2-1-1998 and 13-2-1998 whereupon the Local Commissioner was re-directed to re-measure the area of the shop in presence of the parties which was carried out on 16-3-1998, whereafter" in second report he reported the area of the shop to be 725.55 sq. ft. The order, dated 28-11-1997 whereby the petitioner was directed to deposit the arrears and monthly rent before 2-1-1998 at the approximate rate of Rs.5 per sq ft. for the covered area which was determined through Commission and to be worked out jointly by the counsel for the parties, was rendered ineffective by the Controller himself as he reappointed the Local Commissioner alter 2-1-1998 for re measuring the area which was in dispute after first report. 6n tile receipt of second Commission's report, area of the shop was found lesser than the area reported in the earlier report, therefore, fresh determination of rent had to be made in the light of the latter report. He submitted that the Controller could not invoke penal clause as contemplated in subsection (9) of section 17 of the Act as he had not passed any valid order indicating specific amount of rent due to be deposited by the tenant, as such, striking off the defence of the petitioner without proper order of deposit of rent, was arbitrary and capricious. Reliance was placed on Habib Bank Ltd. v. Amanullah 1986 CLC 2917, Saat Muhammad v. Muhammad Saleem Qureshi PLD 1988 Quetta 42 and Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435. Learned counsel produced statement of account which shows that the petitioner has been depositing monthly rent at the rate of Rs.3,630 per month and from the date of filing of the ejectment application till. 29-2-2004 he has deposited an amount of Rs.3,41,971 whereas the total, amount of rent due till February, 2004 comes to Rs.3,30,330 as such; the petitioner has deposited Rs.11641 in excess of the rent due against him. Learned counsel submitted that during the pendency of the ejectment application respondents Nos.1 to 7 sold the shop to Haji Shah Nawaz Khan etc. through a registered sale-deed, dated 8-9-1998 and as such, they no longer remained owners/landlords of the shop from the said date and cannot maintain their cause.

4. On the other hand, learned counsel for the respondents submitted that the litigation with regard to the transfer of the property culminated in 1994. The rent of Rs.10,000 per month was claimed by the respondents keeping in view the location and area of the shop. Due to dispute on the amount of monthly rent of the shop the Controller appointed a Commission to ascertain the area of the shop in order to tentatively fix the rent on the basis of area which was reported to be 882.43 sq. ft., whereafter he passed an order for the deposit of arrears and the future rent which was not complied with before the specified date by the petitioner, therefore, his defence was rightly struck off by the Controller. Learned counsel urged that the order of deposit of rent, dated 28-11-1997 was neither ambiguous nor vague as area of shop had been ascertained and approximate rent at the rate of Rs.5 per sq ft. had been fixed by the Controller which was to be deposited before 2-1-1998.

5. After hearing the learned counsel for the parties 'and going through the record of the case, we find that the order, dated 28-11-1997 of the Controller whereby he fixed the approximate monthly rent at the rate of Rs.5 per sq. ft. for the covered area as determined through Commission and to be worked out jointly by the learned counsel for the parties was vague and ambiguous; as such; penal clause could not be invoked against the petitioner on the basis of such an invalid order. The exact amount of arrears of rent was never worked out jointly by the learned counsel for the parties despite petitioner's applications to that effect, hence he could not be penalized for the non-compliance of the conditional order when the condition had not been complied with. The Controller before passing the penal order against the petitioner on the application of the respondents, was bound to first decide the miscellaneous applications filed by the petitioner which remained undecided. The Commission's first report wherein the area of shop was reported to be 882.43 sq. ft. was objected to by the petitioner, hence it was incumbent upon the Controller to have first resolved the controversy about the area of the shop and then to have determined tentative rent in specific amount and the period as to from which month and year the rent' was due and thereafter pass an order of deposit of specific amount regarding arrears directing the tenant to deposit the same before specified date and also to deposit monthly tentative rent which becomes due before the 5th of each month. If the order of deposit of rent is ambiguous, vague, conditional, defective and capable of more than one interpretations, such an order would be invalid and void and all subsequently orders passed on the basis of such order would be without lawful authority. As a matter of fact the Controller had himself rendered his order, dated 28-11-1997 invalid and ineffective as he in view of the objection of the petitioner against the first report of the Commission, re directed the Local Commission to re-measure and re-ascertain the area of the shop who in compliance of the order re-measured the area of the shop on 1E-3-1998 and found the same to be 725.55 sq. ft. Since there was a mark difference in the two reports, therefore, order, dated 28-14-1997 which had been passed without resolving the controversy about the are, of the shop and determination of exact amount of rent due was manifestly defective, vague and ambiguous and its non-compliance could not have attracted penal clause of striking off the defence. Non compliance of the order passed under subsection (8) of section 17 of the Act entails penal consequences under subsection (9) of section 17, therefore, the Controller has to be very careful in passing an order under' section 17(8) of the Act and its provisions must be strictly construed as. any legal defect, infirmity or vagueness in the order would render it invalid and all orders passed thereafter would be of no legal consequence being without lawful authority.

6. Consequently, we convert this petition into appeal, allow the, same, set aside the impugned judgment of the High Court and that of the Controller and direct the petitioner to deposit tentative monthly rent of Rs.3,630 which becomes due before 5th of each month. The case is remanded to the Controller to decide the same or merits within six months.

M.H./M-71/S Case remanded.