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Civil Petition for Special Leave to Appeal No. 155‑R of 1981, decided on 3rd March 1982.
(On appeal from the judgment and order dated 16‑6‑1931 of the Lahore High Court, Rawalpindi Bench, in Writ Petition No. 266 of 1981).
--------Ss. 13 & 15‑Eviction‑Appeal‑Rent Controller though bound under law to strike off defence of petitioner/tenant and order his eviction on non‑deposit of rent yet failing to do so despite application to such effect having been moved by respondent landlady‑Appellate forum, held, rightly set aside decision of Rent Controller and he could accept appeal on any valid available ground.
Syed Muhammad Shahudul Haque, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing;. 3rd March, 1982.
.‑Leave to appeal has been sought from the judgment dated 15‑6‑1981 of the Lahore High Court whereby a writ a petition arising out of a rent matter, was dismissed.
On an application for ejectment of the petitioner, he was directed by a learned Rent Controller under section 13 of the Rent Restriction Ordinance, 1959, to deposit the arrears and future monthly rent. The respondent landlady moved an application during pendency of the rent case before the learned Rent Controller for striking off the defence of the petitioner as he had failed to make the requisite deposits but it was not disposed of and the prayer for eviction was refused otherwise on merits. On first appeal, by the landlady, it was urged on her behalf that the petitioner having failed to obey the order of deposit of rent, it was mandatory for the learned Rent Controller to have struck off his defence with eventual order of his eviction. The petitioner's statement was recorded in this behalf. He admitting that after filing of the ejectment petition "he had stopped paying the rent and had filed a civil suit challenging transfer of the disputed house to the respondent landlady". He further admitted that there was no stay order in so far as the payment of rent was concerned though otherwise a temporary injunction was issued for the purpose of maintaining status quo regarding possession. This temporary injunction too as observed by the learned First Appellate Court "was vacated on 12‑12‑1979 on an application made by the respondent (landlady) and he (the petitioner) was allowed to withdraw the application for temporary injunction". In these circumstances, the learned First Appellate Court allowed the respondent's appeal and directed the petitioner's eviction. He filed a writ petition which having been dismissed, leave to appeal has now been sought through this petition.
The learned counsel has contended that the First Appellate Court had no jurisdiction to pass an order in connection with the failure of the petitioner to make deposit under section 13 of the Ordinance; but he has not been able to support his contention either by reference to the Ordinance or any other authority. It is not denied that the appellate forum could set aside the decision of the Rent Controller on any valid available ground. In this case, a the learned Rent Controller though he was bound under the law to strike off the defence of the petitioner and order his eviction on non‑deposit of rent under section 13 of the Ordinance, he had failed to do so despite the fact an application in that behalf was moved by the respondent landlady. The order of the learned First Appellate Court was with jurisdiction.
On merits nothing has been urged nor any plea is available to the petitioner. There is no force in this petition and the same is accordingly dismissed.
Petition dismissed.
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