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Civil Appeal No. 45‑Q of 1983, decided on 7th May, 1986.

(On appeal from the judgment and order of the High Court of Baluchistan Quetta, dated 3‑11‑1982, passed in First Appeal No. 21 of 1981).

‑‑‑Art. 185(3)‑‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13(6)‑‑Leave to appeal granted to examine contention that on finding that tenants were not guilty of non‑compliance 'of order of tentative deposit of rent, application of landlord, which was based on ground of an independent former default committed by tenants, could not have been disposed of and case should have been remanded for deciding application afresh.

‑‑‑Ss. 13 & 15‑‑Ejectment application‑‑Default in payment of rent‑ Creation of fresh terms of tenancy by mutual agreement on enhanced rate of rent could not be said to have non‑suited landlord on original cause of action and his application which was based on a previous default could not be dismissed‑‑Order of High Court, dismissing application of landlord on coming to conclusion that after increase of rent as per agreement between parties direction of Rent Controller under S.13(6) of Ordinance 1959 to pay rent at former rate was rendered ineffective and redundant by conduct of parties and that application of ejectment also became in fructuous after parties entered into fresh tenancy, set aside and case remanded to Rent Controller for decision of rent application on question of previous default as claimed in rent application.

Basharatullah, Advocate Supreme Court instructed by S.A.M. Quadri, Advocate‑on‑Record for Appellants.

Khalid Malik, Advocate Supreme Court for Respondent.

Date of hearing: 7th May, 1986.

This appeal is from the judgment of the Baluchistan High Court, Quetta, dated 3‑11‑1982 which was passed in the background of the following facts:‑

2. The appellants are owners/landlord of a shop/office premises bearing Municipal No. 1‑6‑/28‑A, Jinnah Road, Quetta. The respondents are tenants in the said premises. The appellants filed application for ejectment of the respondents from the said premises on the ground of default in payment of rent from 1‑4‑1976 to 30‑10‑1976 at the rate of Rs.174 per month. In the said proceedings an order, dated 6‑5‑1977 was passed by the learned Rent Controller under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 directing the respondent to deposit the arrears of rent from 1‑4‑1976 to 30‑4‑1977 amounting to Rs.2,262 for 13 months before 9‑6‑1977 and to continue to deposit the rent for subsequent months before 15th of each month. The appellants made an application to the Rent Controller on 12‑11‑1980 asking for striking off the defence of the respondent on the ground that ‑ he had failed to comply with the tentative rent order, dated 6‑5‑1977. It was also prayed that the respondents may be asked to produce challans for the deposit of rent and a report may also be called for from the Nazir. In reply to the application, it was stated by the respondents that they had paid rent to the appellants till March, 1980 at the rate of Rs.174 and thereafter, rent was increased as per agreement to Rs.217.50 per month and was paid directly to the appellants instead of making deposit in the Court. The learned Rent Controller on consideration of the evidence found that the order for the deposit of future rent was not complied with by the respondent in respect of the months of June, 1977, April, 1980 and December, 1980. It was further held that if the respondents had at all chosen to‑pay rent directly to the appellants, instead of depositing the same in Court, they were bound to do so within the stipulated period as mentioned in the order passed in this behalf. As a result the defence of the respondents was struck off and they were directed to vacate the premises within one month. This order was challenged by the respondents in the High Court in First Appeal which was allowed as per impugned judgment. The learned High Court came to hold that after the increase of rent from Rs.174 to Rs.217.50, the direction of the Rent Controller to pay rent at the rate of Rs.174 was rendered ineffective and redundant by the conduct of the parties. It was further held that the "application." for rejectment had also become infructuous after the parties entered into fresh tenancy and the landlord had received rent at the enhanced rate." As a consequence of such finding, the Rent Controller's order was set aside and the ejectment application was dismissed as not maintainable.

3 Leave to appeal was granted to examine the contention that on the finding that the respondents were not guilty of non‑compliance of the order of tentative deposit of rent the application of the appellants, which was based on the ground of an independent former default committed by the respondent's could not have been disposed of and the case should have been remanded for deciding the application afresh

4. There is no denying the fact that the application for ejectment was based on a previous default committed by the respondents at the rate of Rs.174 and this issue is yet to be decided. The creation of fresh terms of tenancy by mutual agreement on enhanced rate of rent as observed by the learned High Court cannot be said to have non‑suited the appellants on the original cause of action. The application for ejectment was, therefore, not liable to be dismissed. No other contention was raised.

5. In the circumstances, the appeal succeeds and the impugned judgment of the learned High Court is set aside. In the result the case is remanded to the Rent Controller for decision of the rent application on the question of previous default as claimed in the rent application. There will be, however, no order as to costs.

M . Y . H . Appeal accepted.

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