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Second Appeal No. 17 of 1960, decided on 21st July,‑1960.

S. 13 (6)‑Arrears of rent deposited by tenant‑Tenant's defence may still be struck off if and when he makes default in paying monthly rent pending proceedings in case‑Expression "his defence shall be struck off "‑Meaning.

In an application, filed by a landlord, under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller provisionally determined Rs. 299, as arrears of rent due for 13 months and directed the tenant to deposit the same in the Court by 24‑6‑1959. He also directed him to deposit the monthly rent due from him regularly till the final decision of the case before the 5th of each month. The tenant deposited Rs. 299, as arrears of rent before 24‑6‑1959 but failed to comply with the order calling upon him to deposit subsequent rent due from him by the 5th of the following months. Thereafter issues were framed and evidence of parties taken. On 22‑9‑1959, the date fixed for argument, the fact was brought to the notice of the Court that the tenant had made default by not depositing rent for subsequent months. The Controller, therefore, although he had decided all the issues in his favour, ordered the eviction of the tenant on the ground that the tenant had failed to comply with the order calling upon him to deposit the subsequent rent due from him by the 5th of the following months. The tenant aggrieved by the order, went in appeal and the District Judge, holding that section 13 (6) of the Ordinance envisages striking off the defence in the initial stage when the default is made, accepted the appeal and dismissed the petition of the landlord. On second appeal to the High Court by the landlord, on the question whether the Controller was justified in striking off the defence of the tenant on the ground of the non‑deposit of the rent for the subsequent month:

Held, that section 13 (6) of the Ordinance makes it quite clear that the law does not contemplate the striking off the defence only in the initial stage. The Controller is required under the law to direct the tenant not only to deposit the arrears of rent but also to direct him to deposit the monthly rent due from him regularly till the final decision of the case before the 5th day of each month. If the tenant does not deposit the arrears of rent by the date fixed, the Controller is bound to strike off the defence, but if the tenant pays the arrears of rent, then the case has to proceed till the default is made in the ,payment of the rent of the subsequent months. As soon as the default is made in this connection, the Controller is bound to strike off the defence. The expression "his defence shall be struck off" in the section means that whatever pleas have been raised in defence of the tenant, they should be struck off and the Controller is not required to take into consideration his defence.

Malik Muhammad Nadir for Appellants.

Syed Munir Hussain Shah for Respondent.

Date of hearing : 21st July 1960.

This second appeal has been filed by Sh. Muhammad Sharif and Sh. Muhammad Sadiq, sons of Mian Muhammad Amin, under the provisions of section 15 of the West Pakistan Urban Rent Restriction Ordinance, 1959. It is directed against the order of the District Judge, Lahore, dated the 1st of March 1960, whereby the appeal of the respondent Sh. Muhammad Sharif, son of Mian Muhammad was accepted and the petition filed by the appellants under section 13 of the Ordinance for the ejectment of the respondent was dismissed and the parties were directed to bear their own costs.

2. The facts giving rise to this appeal are that on the 30th of April 1959 the landlords‑appellants filed a petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 for the ejectment of the ' tenant‑respondent from the shop detailed in the petition. It was alleged in the petition that the tenant had failed to pay rent for the last 13 months and that he had used the property in a manner by which the value and utility of the property had been materially impaired. It was also averred that the landlords required the premises, in good faith, for their own personal occupation. The respondent denied these allegations. On the 9th of June 1959, the Controller, namely, Mr. Shaft‑ur‑Rahman, Civil Judge, Lahore, who had been appointed by the Provincial Government to perform the functions of a Controller under the Ordinance, provisionally determined Rs. 299, as arrears of rent due for 13 months and directed the respondent to deposit the same in Court by the 24th of June 1959. He also directed him to deposit the monthly rent due from him regularly till the final decision of the case before the 5th day of each month. On the 20th of June 1959, the respondent deposited Rs. 299, in Court. On the 24th of June 1959, the Controller framed the following issues:‑---

(1) Whether the petitioner requires the premises bona fide for his personal use

(2) Whether the respondent has used the property in a manner to impair materially its value and utility

(3) Whether the respondent has failed to pay or tender rent for the last 13 months before filing the application

(4) Relief.

He fixed the 15th September 1959 for the petitioner's evidence and the 18th September 1959 for the respondent's evidence. The parties concluded their evidence on the 18th September 1959 and the arguments were heard on the 22nd of September 1959. The learned Controller by his order dated the 30th September 1959 decided all the issues in favour of the tenant‑respondent, but ordered his eviction under section 13 (6) of the Ordinance on the ground that he had failed to comply with his order dated the 9th June 1959, calling upon him to deposit the subsequent rent due from him by the 5th of the following month. The respondent went up in appeal before the District Judge who, by his order dated the 1st of March 1960, accepted his appeal and dismissed the petition of the landlords‑appellants. Dissatis fied with this decision the landlords‑appellants have come up in second appeal before this Court.

3. The learned counsel for the appellants has urged that the learned District Judge was not justified insetting aside the order of the Controller. It is common ground between the parties that the respondent had deposited Rs. 299, before the 24th of June 1959, as directed by the Controller. He, however, failed to deposit the rent of the subsequent month by the 5th of the following month, as ordered by the Controller.

4. The question which falls for determination is whether the Controller was justified in striking off the defence of the respondent on the ground of the non‑deposit of the rent for the subsequent months. The learned District Judge held the view that section 13 (6) of the Ordinance envisages the striking off the defence in the initial stage when the default is made.' In this connection he remarked that the Controller did not strike off the defence of the respondent on the 24th of June 1959, but framed issues and thereafter recorded evidence and eventually arrived at the conclusion that the allegations mentioned in the petition had not been substantiated. From the facts already stated in is quite clear that no default had been made by the 24th of June 1959. The initial order had been passed by the Controller on the 9th of June 1959 and the respondent had been directed to deposit the rent of the subsequent month by the 5th of ‑the following month. Consequently, the rent for the following month could not have been deposited before the 24th of June 1959. It is true that the default had been made on the 5th of July 1959, but the case already stood adjourned to the 15th and 18th of September 1959 for recording the evidence of the parties. Under the circumstances, the Controller could not have taken any action before that day. It appears that it was only on the 22nd of September 1959, that the matter was brought to the notice of the Controller that the respondent had made default by not depositing the rent for the subsequent months. Section 13 (6) of the Ordinance reads as follows :

"In proceedings under this section on the first date of bearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck‑off and the landlord put into possession of the property without taking any further procee dings in the case.".

5. A perusal of this provision of law makes it quite clear that the law does not contemplate the striking off the defence only in the initial stage. The Controller is required under the law to direct the tenant not only to deposit the arrears of rent but also to direct him to deposit the monthly rent due from him regularly till the final decision of the case before the 5th day of each month. If the tenant does not deposit the arrears of rent by the date fixed, the Controller is bound to strike off the defence, but if the tenant pays the arrears of rent, then the case has to proceed till the default is made in the payment of the rent of the subsequent months. As soon as the default is made in this connection, the Controller is bound to strike off the defence. In this view of the matter, the learned District Judge was not right in saying that the law envisages the striking off the defence in the initial stage when the default is made. In my opinion, the learned Controller should not have decided the issues at all, as soon as it was brought to his notice that the respondent had made the default by not depositing the monthly rent due from him for the subsequent months. He should have straightaway struck off the defence of the respondent and proceeded further in accordance with section 13 (6) of the Ordinance.

6. The learned counsel for the respondent, has argued that section 13 (6) provides that whenever the default is made, the tenant is debarred from leading any further defence from the date of the default. In view of the plain and unambiguous language used in section 13 (6) of the Ordinance, I am not prepared to accept this contention. The expression "his defence shall be struck‑off" means that whatever pleas have been raised in defence of the tenant, they should be struck off and the Controller is not required to take into consideration his defence. Learned counsel for the respondent, however, has urged that because in the present case the evidence had been recorded before it was brought to the notice of the Controller that the respondent had made the default, he was justified in deciding the issues, and as they had been decided in favour of the respondent, he could not have ordered that the landlords should be put into possession of the shop forthwith. I am afraid this argument is untenable, because after striking off the defence, nothing remained to be decided between the parties. The issues had been framed because of the pleas raised by the respondent in his written statement, and when the pleas were struck off, the Controller was not justified in taking into consideration the very pleas which had been struck off because of the default made by the respondent.

7. For the reasons stated above, I am of the view that the learned District Judge was not right in setting aside the order of the Controller dated the 30th of September 1959. I accordingly accept this appeal and setting aside the order of the District Judge dated the 1st of March 1960, restore the order of the Controller dated the 30th of September 1959. The appellants will be entitled to realise the costs of this appeal from the respondent.

K. B. A. Appeal accepted.

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