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First Appeal from Original Order No. 19 of 1980, decided on 5th August, 1981.

--- S. 13 (6)-Defence, striking off-Amount of rent due disputed Rent Controller without determining approximate amount of rent due directing tenant to deposit same-Rent Controller, held, has not -applied his mind and failed to carry out mandatory provisions of S. 13(61 of Ordinance-Impugned order set aside, in circum stances -- Non-compliance of defective order could not result in penal consequences.

Abdul Majid v. Saadullah P L D 1963 Quetta 60 and Municipal Committee, Gujranwala v. Barkat Bibi and others 1979 S C M R 264 ref.

Abdul Sattar for Appellants.

Raja Fayyaz for Respondents.

Date of hearing : 8th August, 1981.

Heard the counsel of the parties. The respondents had filed an application for eviction of the appellant from shop No. 3-9/31 situated on Masjid Road, Quetta on the ground of non-payment of rent since 1st November, 1.978. The appellants were summoned by the Controller who filed their written statements on 20th March, 1980. The Controller made an order on 22nd March, 1980 directing the appellants to deposit rent from November, 1978 to February, 1980 amounting to Rs. 1760 before 22nd April, 1980 and to continue depositing monthly rent as it became due. On the failure of the appellants to deposit rent by the date fixed by the Controller their defence was struck off and they were directed to hand over possession of the premises to the respondents. This order was made on 22nd April, 1980. It is against this order that the appellant has come in appeal. The order of the Controller dated 22nd March, 1980 is defective inasmuch as he has not taken in consideration the plea of the appellant regarding payment of rent. In paragraph 2 of the. written statement the appellant had stated that he had paid agreed rent uptil December, 1980 and had remitted rent from July to March; .1980 which the respondents refused to accept. Section 13 (6), West Pakistan Urban Rent Restriction Ordinance, 1959, clearly lays down that where there is any dispute- about the amount of rent due or the rate of rent the Controller shall determine such amount approximately and then direct the tenant to deposit the same. In the impugned order of Controller there is no suggestion of approximate determination of such amount. The Controller has misdirected himself by ignoring the plea of the appellant taken in the written statement. H has not applied his mind and failed to carry out the mandatory provision of section 13(6) of the Ordinance. Any order which is defective and no in accordance with the provisions of law under which it is made non compliance of such order could not result in the penal consequence resulting from such non-compliance. Defence of the appellants could no be struck off in these circumstances.

2. The counsel of the respondents has cited two authorities one Abdul Majid v. Saadullah (P L D 1963. Quetta 60) and other the case of Municipal Committee Gujrantvala v. Barkat Bibi and others (1979 S C M R 264). These two authorities deal with the question as to how far a tenant was liable for penal consequence under section 13(6) if he did not comply with the order made by the Controller for payment of rent under section 13(6) of the Ordinance. In the circumstances of the present case the principles laid down in the two authorities are hardly attracted. The order of the Controller dated 22nd March, 1980 being defective is set aside. The Controller is directed to proceed with the matter further according to law. Parties will bear their own costs.

M.Y. H. Appeal allowed.

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