Khursheed Anwar vs Muhammad Rafique Khawar

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BLUE SLIP

H.JD/C4l (Revised: rmder Act No.II of 1990)

ORDEROF THE COT]RT

Lahore High Cour{ Rewelpindi Bcnc\ Rawdpindi

In the Court/Tribunal: Hon'ble Mr. Justice Mirza Viqas Rauf CaseNo. FAONo.37/AU Titled " Khursheed Anwer Vs Muhammad Rafique Khawar etc."

Decided on: 21.05.2015

V(^l Judgment approved for reporting Yes.

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]UDGMENT SFIEET

LAIIORE HIGH COURT, RAWAPINDI BENCH, RAWAI.PINDI

IUDICIALDEPARTMENT

F.A.O No.37-2O74 Khursheed Anuar Vs Muhannmod Rafique l{h.auar, etc

Date of heaing: 21.05.2015.

Appellant by: Mr. Muhammad Arshad Cheema, Advocate Respondents by: Ch. Muhammad Sarfraz Warraich, Advocate MIRZA VIQAS RAUF. J:- Khursheed Anwar

appellant assails the vires of order dated 07.03.2014, passed by the learned Additional Rent Controller, Rawalpindi Cantt, whereby his right of defence was struck off and he was directed to handover the vacant possession of the suit premises to respondent No.1 within thirty days.

2.Precisely the facts necessary for adjudication of instant appeal are that the respondent No.1/landlord filed an ejectment petition with regard to office located at Rafique Centre, Second Floor of the premises bearing No.18/62 Adam Jee Road, Rawalpindi Cantt (hereinafter referred as suit premises). The ejectment of the appellanV tenant was sought on the ground of default in payment of rent which was alleged from January 2012, as well as causing of damage to the suit premises. As per averments contained in the ejectment petition the lease agreement was executed between the parties in August, 2005 initially for two years, which was further extendable with mutual consent, whereas monthly rent was fixed as Rs.3,200/- which was agreed to be enhanced @ 1O o/o per annum. The appellant also paid Rs.20,000/- as security, which was returnable at thq.vacation of the suit premises.

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3.The ejectment petition was resisted by the appellant who filed his written' reply, wherein the assertions contained in the petition were controverted.

4- From the divergent pleadings of the parties, the learned Rent Controiler framed the followino issues:-

ISSUES

1.Whether the respondent is a rent defaulter? O.P.P z. Whether the respondent has damaged the suit premises? OPP

3.Whether the petitioner has received the Pagri amount? oPR

5.The learned Rent Controller vide its order dated 06.03.2013 passed a tentative Rent Order directing the appellant to deposit rent at the rate of Rs.3,500/- per month from September, 2O12 to February, 2013 amounting to Rs.21,000/- before 27-03.2013 and the future monthly rent before Sth of each month. During the proceedings respondent No.1 moved an application under Section 17 (9) of The Cantonments Rent Restriction Act, 1963 for striking off the defence of ihe appellant on account of non-compliance of tentative rent order dated 06.03.2013. The said application was contested by the appellant and he filed reply to the same. The learned Additional Rent Controller vide order dated 07.03.2014 allowed the said application and struck off the right of defence of the appellant and directed him to vacate the suit premises within thirty days. Hence this appeal.

6.Learned counsel for the appellant contended that the default of one day is not a willful and contemptuous default, attracting penal prcvisions of Section 17 (9) oi The Cantonments Rent Restriction Act, 1963. He maintained that though monthly rent was to be deposited before Sth of each month but due to public holiday on 4th of August, 2013 the rent due for the said month was deposited on 5th of August, 2013.

Learned counsel contended that.the impugned order is not tenable

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under the law. In support of his contentions he relied upon the case of "SAHIBZADA MUSTAFA and another versus WAZIR MUHAMMAD AWAN and 9 others" i1993 SCMR 1584).

7.Conversely learned counsel for the respondent No.1 submitted that tentative rent order was passed on 06.03.2013, whereby the appellanVtenant was directed to deposii monthly rent before the 5h of each month and since he did not comply with the said order , so his defence was rightly struck off. Learned counsel argued that in case of default, Section 17 (9) of The Cantonments Rent Restriction Act, 1963 provides an automatic consequence of the same and the said powers have rightly been exercised by the learned Additional Rent Controller. In support of his contentions learned counsel relied upon the cases of "M.H. MUSSADAQ versus UHAMMAD ZAFAR IQBAL and another" {2004 SCMR 1453) and "NASIR HAMEED versus Maior Retd}

MUHAMMAD SAEED IKRAMULLAH" (2007 CLC 89).

8.I have heard the learned counsel for the parties and perused the record available on the file with their assistance

9.Before dilating upon the merits of the instant appeal ii would be advantageous to first go through Section 17 of The Cantonments Rent Restriction Act, 1963, which deais with the matter in issue. By virtue of Sub Section 8 of Section 17 of the said Act, the leamed Rent Controller is bound to pass a tentative order before framing of the issues. The learned Additional Rent Controller Rawalpindi by virtue of Powers under Section 17(8) of The Canionments Reni Restriction Act, 1963 passed the tentative rent order, whereby the appellanVtenant was directed to deposii the arrears of rent @ Rs.3,500/- per month since September, 2012 to February, 2013 amounting to Rs.21,0001 before 27th of March, 2013 and also deposit future monthly rent at the said rate well before 5th of each month. lt is an admitted position on the record that the rent

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for the month of July, 2013 was deposited on 5rh of August 2013. Due to this delay of one day in depositing the monthly rent, the learned Rent Controller by way of order dated 07.03.2014 struck off the defence of the appellant and directed him to handover the vacant possession of the suit premises within ihirty days to the respondent No.'1. The contention of ihe learned counsel for the appellant that the default in payment of monthly rent is neither willful nor contemptuous, when adjudged on the principles laid down in Sub Section 9 of Section '17 of The Cantonments Rent Restriction Act, 1963, the same looses its efficacy. Section 17 (9) of The Cantonments Reni Restriction Act, '1963 is reproduced below for ready reference:-

(9)"lf the tenant fails to deposit the amount of rent before the specified date or, as the case may be. before the 5u day of the month, his application, if he is a petitioner. shall be dismissed, or his defence, if he is a respondent, shall be struck off, and the landlord shall be put in possession of the building without any further proceedings."

From the bare reading of the above referred provision of law it is evident that none of these words " "iviilful or contemptuous" are recognized by Section 17(9) of ihe Act for invoking the penalty clause embodied therein. The word "fail" is used which means that in any case the tenant is bound to deposit the monthly rent before the 5'n day of the each monih and in case of non-compliance, no option will be left with the Rent Controller except to proceed in terms of Sub Section 9 of Section 17 of The Cantonments Rent Restriction Act, 1963 and to struck off the right of defence of the tenant and the landlord shall be put in possession of the building without any further proceedings. There is no cavil Ieft that the provision referred herein-above is mandatory. Even otherwise it is well-settled principle of law by now that whenever a thing is required to be done in specific manner then that should be done in the way prescribed under the law but in no other manner. Reliance in this

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respect can be placed on the case of "MUHAMMAD SALEEM CHOTIA. ADVOCATE versus ZAFAR IQBAL OWASI. ADVOCATE BAHAWALNAGAR and 4 others" (PLD '1999 Lahore 446) and " MUHAMMAD SHARIF versus STATION HOUSE OFFICER. POLICE STATION. CITY. HAFIZABAD and another (PLD 1997,Lahore 692).

1 0. As per mandate of Section 17(9) of The Cantonments Rent Restriction Act, it was the bounden duty of the appellanVtenant to deposit the rent for the month of July 2013 at the latest by 4'" of August 2013 but ihe same has not been done. Thus the invocation of penal clause orescribed under Sub Section g of Section 1 7 of The Cantonments Rent Resiriction Act, 1963 is in consonance with law.

Non-compliance of the order under Section 17(8) of the said Act dictates the Rent Controller to proceed accordingly as provided therein and no discretion is vested with the Rent Controller io evade the mandate of law. The judgment relied upon by the learned counsel for the appellant is not attracted in the case. Even otherurise the Hon'ble Suoreme Court of Pakistan in the case of "M.H. MUSSADAQ versus MUHAMMAD ZAFAR IQBAL and another"(2004 SCMR 1453) has held that even a delay of one day in depositing the rent is sufficient to strike off the defence of tenant in terms of Section 17 (9) of The Cantonments Rent Restriction Act, 1963. Guidance in this respect can also be sought from the case of "Khawaia MUHAMMAD MUGHEES versus Mrs. SUGHRA DADI" {2001 SCMR 2020). wherein the Hon'ble Supreme Court of Pakistan while dealing with simiiar proposition has held as under:-

"lt is contended by the learned counsel for the petitioner that the Courts below failed to take into consideration the fact that it was beyond the control of tlle petitioner to deposit the arrears of rent on 4' of June, 1994, as it was a gazette holiday and that the petitioner was not guilty of committing any default by depositing arrears on the next working day i.e. 5.-6-'t 994." -_

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7.Learned counsel for the respondent has seriously contested the above assertion. According to him,4u June, 1994 was not a Court holiday but was a working day and the Courts had tunctioned in the normal way. He has produced photocopy of the cause list cases fixed for hearing in the Gourt of Additional Controller of Rent Clifton, Cantonment, for the said date. Learned counsel for the petitioner has not been able to rebut it. ln this view of the matter. the default on the part of the petitioner stands established. Furthetmore, he had failed to comply with the interim older dated 3.10.1997 passed by this Court whereby he rrras required to deposit rent tor the month of October, before the 10- of November, 1997. There is no explanation on behalf of the petitioner in this respect. In this view of the matter, his defence was liable to be struck off. As no infirmity or lacuna, whatsoever, appears in the impugned order, the leave to refused. However, six months time is allowed to the petitioner to put the landlady in vacant poasession of the property in dispute- This order will be subject to the payment of fent, current charges of electricity and gas and clearance of arrears bills of electricitv within a month."

Both the above referred judgments of the Hon'ble Supreme Court of Pakistan are later in time and rendered by the Hon'ble Laryer Bench, so the law enunciated therein will orevail. Even this Court in the case of IKRAMULLAH and another" (2007 CLC 89). while, pondering upon the same issue held as under:-

In the light of the foregoing position on facts as well as law, it is clear that the obligation to deposit rent for the month of February, 2005 ought to have been discharged at the latest by 4-3.2005, which was not done. The provisions of section 17(9) of the Act are mandatory. Neither the Rent Controller nor this Court has power to condone the delay in question. Accordingly, the impugned order is upheld and this appeal is dismissed with no order as to cost. Further time is however, granted to the appellant who shall vacate the rented premises in a period of 3 months from the date of this order.

11.In the light of above referred provisions of law and precedents laid down by the Hon'ble Supreme Court of Pakistan in the judgments supra, no cavil left that the appellant was obliged to deposit the monthly rent at the latest by 4'n of August of 201 3, as the same was not done, so his

t a F.A.o No.37 of 2or4 '- right of defence was rightly struck off in terms of Section 17 (9) of The Cantonments Rent Restriction Act, 't963. The appellant has failed to point out any iltegality in the order under challenge. Resultantly the instant appeal fails and is dismissed with no order as to costs.

12.Before parting with the judgment, I deem it appropriate to observe that for the advancement of ends of justice the appellant is granted further period of two months for vacation of suit premises from the passing of instant order. With these observations the instant appeal is dismissed.

{MIRZ/\ VIQAS RAUF}

JT'DGE

Approved for Reportlag

Ramzan