Syed AKHLAQUE HUSSAIN vs HABIB ISMAIL BAJWA, ADVOCATE

1. SALAHUDDIN AHMED, J.-The petitioner has become aggrieved by an order of the Rent Controller, rejecting the former's application for finally determining the rent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The Rent Controller was of the view that having already struck off the defence of the tenants and passed the order of ejectment, he no longer possessed any jurisdiction to finally determine the rent.

2. Both the respondents have already vacated the disputed premises and the question of ejectment is no longer an issue between the parties.

3. The name of respondent No. 2 was deleted on 3-4-1973 at the risk of the appellant, and the former is not a party before us.

4. The only question that is left for our consideration is whether the Rent Controller, having already struck off the defence on the failure of the defendant/respondent No. 1 to comply with the order of the Rent Controller to deposit the rents and having passed the order of eviction of the respon-- dent, became functus officio, and as such could no longer determine the rent finally as required in the 2nd part of section 13(6) of the Urban Rent Restriction Ordinance, 1959 (VI of 1959).

5. Section 13(6) is as follows :---- "(6). 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 fifth 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."

6. It is evident that the order provisionally fixing the rent in the event of a dispute about the rate and its deposit is an interim or interlocutory order. Under the second part of the section, the statutory duty is cast on the Rent Controller to finally determine the rent, and until this act is performed, the proceeding does not legally conclude.

7. This is really what this Court said in Abdul Ghafoor v. Ahmad Kunhi (PLD 1969 SC 424).

8. We are, therefore, unable to accept the contention advanced on behalf of the respondent that the Legislature regarded the passing of the order of eviction as the last or ultimate act of the Rent Controller which put an end to the proceeding for eviction under section 13 of the Ordinance and the Rent Controller thereafter was precluded from finally determining the rent as required under the said Ordinance.

9. It is of course true that for the purpose of finally determining the rent it is necessary to issue notices to the parties concerned and to arrive at a decision after evidence has been led on the point and after the parties have been given an opportunity to be heard.

10. It may be mentioned here that the learned Judges of the High Court while disposing of the letters patent appeal held that the final determination of rent had to follow immediately after striking off the defence of the defaulter while the Controller had not lost seisin in the matter. The learned Judges were right when they said that it was the duty of the Rent Controller to finally determine the rent. They were however not correct when they said that the passing of the order of eviction by the Rent Controller had the effect of making the Rent Controller functus officio so that he could not thereafter finally determine the rent.

11. We accordingly allow the appeal with cost to the extent only of the court-fee paid by the appellant.

12. We set aside the impugned order of the High Court and remand the case to the Rent Controller to finally determine the rent in accordance with law.