Find a Lawyer

-- S. 13(6)-Direction to deposit arrears of rent-Rent Controller not directing arrears to be deposited for each month separately as done by tenant but concerned with deposit of total amount of arrears legally recoverable by time when deposit ordered - Such amount in fact deposited by tenant before stipulated date-Tenant, in circum stances, committed no default in regard to deposit of arrears of rent and accordingly could not be ordered to be ejected on such account.

Khair Muhammad Nizamani v. Abdul Quddus P L D 1965 Kar. 367; Moinul-Hayue G. Shaikh v. Mst. Zulekha and 4 others 1 79 C L C 650; E. A. Evans v. Muhammad Ashraf P L D 1964 S C 536; Barkat Ali v. Messrs Pakistan Sanitary & Drainage Works 1974 S C M R 75; N. M. Najmi v. Jooma and 6 others 1980 C L C 629; Major Feroze Din Khan and others v. Sh. Muhammad Amin P L D 1967 Lab. 966; Allah Bakhsh and another v. Muhammad Ali Shah and 10 others 1979 C L C 209 and Sh. Muhammad Rafig v. Mian Umar Din alias M. U. Dcen P L D 1973 Note 113 at p. 172 ref.

Sana Ullah Malik for Appellant.

Sh. Ghulam Qadir for Respondent.

Date of hearing: 18th May, 1980.

This second appeal has arisen out of an application filed by the appellant on 24th May, 1978, under the West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance, against the respondent Kb. Muhammad Tariq, for his eviction from a house, inter alia, on the ground that he had not paid rent since July, 1976. On 19th September, 1978, the Rent Controller, before whom the application was pending, made an order, under subsection (6) of section 13 of the Ordinance, directing the respondent to deposit the arrears of rent from July, 1976, to October, 1978, at the rate of Rs. 150, per mensem, till 20th October, 1978, as also the future rent for each month, at the above rate, before the l5th day of the next month. The respondent deposited arrears of rent not in lump sum but with reference to the months falling within the period named by the learned Rent Controller. While so doing, he omitted to make deposit for the month of July, 1976. It was, therefore, held by the learned Rent Controller that he had committed default in regard to the deposit of the arrears of rent and, vide order, order dated the 25th October, 1978, struck off his defence and directed him to vacate the house. .This order was challenged by the respondent by means of an appeal which was heard by an Additional District Judge. The view taken by the learned Additional District Judge was that the order of the learned Rent Controller in regard to the deposit of rent for the month of October, 1978, as arrears of rent was legally defective and, therefore, the respondent was not obliged to deposit rent for that month. As rent for October, 1978, was deposited on 18th October, 1978, before the date fixed for the deposit of arrears of rent, namely, 20th October, 1978, the learned Additional District Judge allowed adjustment of the said rent against the rent payable for July, 1976, and held that there was no default on the part of the respondent. Resultantly, the learned Additional District Judge accepted the appeal, set aside the order of the learned Rent Controller and remanded the case to him for further proceedings. Feeling aggrieved by the order of the learned appellate authority, the landlord has come up in second appeal to this Court.

2. Learned counsel for the appellant submitted that the respondent bad deposited the arrears of rent for each month separately and since he did not deposit rent for the month of July, 1976, in time, which was required to be deposited as arrears of rent, he could not escape the consequences of his default. He relied on section 59 of the Contract Act, 1872, to contend that since the respondent had deposited rent for the month of October, 1978,. by specifying in the relevant challan that it was rent for that month, it could not be appropriated towards the rent payable for the month of July, 1976.

3. On the other hand, it was maintained by the learned counsel for the respondent that rent for the month of October, 1978, had not fallen due when the learned Rent Controller had directed its deposit as arrears of rent and, therefore, his entire order relating to the deposit of rent was illegal. As a result, the argument proceeds, the respondent could not be penalised for not complying with that order. He cited Khair Muhammad Nizamani v. Abdul Quddus P L D 1965 Kar. 367, and Moinul-Haque G. Shaikh v. Mst. Zulekha and 4 others 1979 C L C 650, to support his plea. It was further submitted by the learned counsel that even if the entire order was not struck down, it will have to be ignored in so far as it related to the deposit of rent for October, 1978, as arrears of rent. He added that since the respondent had deposited rent for the month of October 1978, as arrears of rent on 18th October, 1978, that is before the date fixed for deposit of arrears of rent, namely, 20th October, 1978. rent for October, 1978, could be adjusted against rent payable for July, 1976, as arrears of rent and thus there would be no default on the part of the respondent. Such an adjustment, according to him, was possible in view of the law laid down in E. A. Evans v. Muhammad Ashraf (PLD1964SC536 ), Barkat Ali v. Messrs Pakistan Sanitary and Drainage Works (1974SCMR75) and N. M. Najmi v. Jooma and 6 others (1980 C L C 629). As regards the provisions of section 59 of the Contract Act, it was urged by the learned counsel for the respondent that the cases under the Ordinance are to be decided in accordance with the provisions of the Ordinance only and, therefore, reference to any other law was not called for. For this proposition reliance was placed by him on Major Feroze Din Khan and others v. Sh. Muhammad Amin (P L D 1967 Lah. 966).

4. While replying to the arguments advanced by the learned counsel for the respondent it was submitted by the learned counsel for the appellant that the facts of the cases cited by the learned counsel for the appellant were different from those of the case in hand. He also invited my attention to Allah Bakhsh and another v. Muhammad All Shah and 10 others (1979 C L C 209), to maintain that the adjustment sought by the respondent could not be allowed. As for the contention of the learned counsel for the respondent that the order of the learned Rent Controller regarding deposit of rent was legally defective, learned counsel for the appellant argued that if there was any defect in his order it was only in respect of the month of October, 1978, and since there was no defect so far as the rent for the month of July, 1976, was concerned, the respondent must suffer the consequences of late deposit of rent for the month of July. His reasoning was that if an order made under subsection (6) of section 13 of the said Ordinance is defective in certain respect, it would not make the entire order illegal and inoperative. He cited Kewalram Dayaram Shahan v. Nawab Ali (P L D 1978 Kar. 79), to support his view.

5. As for the applicability of section 59 of the Contract Act to the present case, it will be observed from the provisions of subsection (1) of sec tion 13 of the Ordinance that the cases under the Ordinance have to be decided by a Rent Controller in accordance with special law embodied in the Ordinance and, therefore, it is not necessary for him to follow the general provisions of law contained in other enactments. Subsection (1) reads thus:--