M.H. MUSSADAQ vs MUHAMMAD ZAFAR IQBAL and another

' ABDUL HAMEED DOGAR, J--- Leave to appeal has been sought by the petitioner, a tenant against the judgment, dated 20-1-2004 passed in F.A.O. No, 8 of 2003 by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby the order, dated 30-12-2002 passed by the Rent Controller striking down the defence of petitioner under section 17(9) of the Cantonments rent Restrictions Act, 1963 (hereinafter referred to as the Act) was maintained.

2. The facts leading to the filing of the instant petition are that respondent Muhammad Zafar Iqbal filed ejectment petition under section 17 of the Act against petitioner M.H. Mussadaq on the grounds of default, personal requirement and alteration in the property without permission. The petitioner contested the claim, submitted his written statement anti controverted all the allegations mentioned in the ejectment application. However, he admitted the relationship of landlord and tenant.

3. Before framing the issues, the Rent Controller proceeded under section 17(8) of the Act and afforded opportunity to both the parties to produce documents in order to ascertain tentative assessm ent of the rent. After hearing both the parties and going through the record, the Rent Controller vide order, dated 16-9-2002 directed the petitioner to deposit rent for the month of August, 20Q2 and September, 2002 positively within seven days at the rate of Rs,8,800 per month.

He was also directed to deposit future monthly rent in advance for the month of October, 2002 and onward before 5th of each month.

4. Petitioner, however, instead of depositing the rent on 23-9-2002, deposited the same on 25-9- 2002 thus committed willful default of three days, irrespective of this, instead of depositing the rent on 5th of October, 2002 paid the same on 15th October, 2002 with a delay of ten days. Accordingly, on 15-10-2002, respondent moved application under section 17(9) of the Act before the Rent Controller on the ground that the petitioner has not complied with the above mentioned tentative rent orderand has failed to deposit the rent as directed therein, hence his defence be struck off.

5. Resultantly, vide order, dated 30-12-2002 petitioner's defence was struck off under section 17(9) of the Act and was directed to hand over the possession to the respondent without any further proceedings.

6. Feeling aggrieved, petitioner preferred above-mentioned FAO before the learned Lahore High Court, Lahore, which was dismissed, vide impugned judgment.

7. We have heard Mr. Akhtar Masood Khan, learned ASC for the petitioner and have gone through the record and the proceedings of the' case in minute particulars.

8. Learned counsel for the petitioner contended that it is a settled principle of law that when a tenant or landlord invokes the jurisdiction of Rent Controller under the Act, the Court being seized of the tenancy matter has to regulate the same under the statute irrespective of the conditions of the tenancy agreement. According to him, in the instant case, the Court of Rent controller has exercised its jurisdiction which was not vested in it under the statute. He contended that the petitioner was not in arrears uptil July, 2002. As regards the rent for the months of August- September, 2002 the same was due on 25-9-2002, whereas the rent for the month of September, 2002 was deposited on 25-9-2002 and the rent for the month of October, 2002 was deposited on 15-10-2002. Thus the petitioner has riot committed any default in the payment of rent. Even according to the provisions of the statute as well as the terms of tenancy agreement, the petitioner has not defaulted in the payment of rent thus the impugned order is liable to be set aside:

9. It has been established on record that the petitioner has not complied with the tentative rent order in letter and spirit but defaulted in its payment. As per tentative rent order, he was directed to deposit the rent for the months of August and September, 2002 within seven days positively which was admittedly deposited on 25-9-2002 instead-of 23-9-2002 thus a clear default of three days occurred. So far the rent of the month of October, 2002, which was to be deposited before 5th October, 2002 was deposited on 15-10-2002 for which delay no justification of any sort was shown.

Moreover, the petitioner has not been able to bring on record to show that the default was unavoidable, wilful and beyond his control.

10. On this aspect of the matter, the legal position is very clear.According to subsection (9) of section 17 of the Act, if the tenant fails todeposit the amount of rent before specified date, or, as the case may be,before 5th of the month, his defence shall be stuck off. On its bareperusal, it is manifest that he above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meaning and Rent Controller has no power to extend time and condoned the same. Th further fortify, reference can be made to the case of Misbahullah Khan v. Mst. Memoona Taskinuddin 1995 SCM R 287 in which this Court while interpreting the scope of section 17 of the Act, has held that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking eviction. It is also observed that non-compliance with the tentative rent order is directly punishable and in consequence the defence of tenant can be stuck off and eviction can be granted. In the case of Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCM R 1705), it has been held by this Court that the Rent Controller had no power to ignore the delay in making deposit of rent under section 13(6) of the West Pakistan Urban rent restriction Ordinance (VI of 1959). Similarly in the case of Muhammad Yousuf v. Muhammad Bashir and others (1990 SCM R 557)this Court refused to grant leave to appeal and dismissed the petition and maintained that the Rent Controller had no jurisdiction to condone one day's default in making deposit of the rent on due date.

' H. Looked at from whatever angle, this petition has no force and is accordingly dismissed.