P2005 C L C 784
[Lahore]
Before Umar Ata Bandial, J
Haji FAZAL-UR-REHMAN—Appellant
versus
ABDUL HAFEEZ alias BABAR—Respondent
S.A.O. Nos.5 and 6 of 2005, decided on 17th February, 2005.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)—
—-S. 13(6)—Default in compliance of order of Rent Controller under S.13(6), West Pakistan Urban Rent Restriction Ordinance, 1959—Where the Rent Controller had approved the manner in which the rent was being deposited by the tenant and the landlord had failed to raise any objection at that stage, there was no intentional violation of the mandate under S.13(6) of the Ordinance or the order passed by the Rent Controller thereunder—Allegation of the landlord that the deposit was intended to deprive him of the benefit of rent deposited, was not justified in the light of foregoing acquiescence by the landlord and approval of the Rent Controller—Objection and grievance of the landlord about difficulty in withdrawal could be redressed by an appropriate order of the Rent Controller, making correction or giving clarification for which the tenant had undertaken to extend his fullest cooperation and not by depriving the tenant of his right to defend his tenancy—Non-compliance by the tenant, in the present case, being of a technical nature, did not stand in the way of meeting the requirement and object of S.13(6) of the Ordinance or for that matter the order passed by the Rent Controller under the said provision.
Bahadar Khan v. Ch. Muhammad Hussain 1991 SCMR 429 and Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9 ref.
Ali Masood Hayat for Appellant.
Muhammad Saleem Chaudhry for Respondent.
ORDER
This order shall dispose of S.A.O. No.5 and S.A.O. No.6 of 2005 as these proceed against a common order dated 18-12-2004 passed by the first Appellate Court reversing the order of the learned Rent Controller dated 25-5-2004 for the ejectment of the respondent passed in proceedings for his eviction filed by the landlord appellant.
2. Learned counsel for the appellant submits that acting pursuant to order of the learned Rent Controller of 17-2-2003 for deposit under section 13(6) of the Punjab Rent Restriction Ordinance, 1959 ( Ordinance ), the respondent deposited the rent in the wrong name without lawful cause. On facts thelearned Rent Controller by his order dated 25-5-2004struck out the defence of the respondent tenant for non – production of rent deposit challans. The learned Appellate Court took a different view when the challans were produced to hold that rent had been validly deposited in the name of person with whom rent deed was entered by the respondent tenant. Accordingly he reversed the order of the learned Rent Controller vide his order, dated 18-12-2004.
Learned counsel submits that the rent deed is an unsigned document and has, therefore, no significance in the eye of law. He states that the contract between the parties is, therefore, an oral contract established by the conduct of the parties. Accordingly, reference to the rent deed is inappropriate in the circumstances of the case; the learned Appellate Court should have referred the admission made in the written statement of the respondent who has been unduly let off from the penal consequence of his conduct.
3. Pursuant to notice to these proceedings, learned counsel for the respondent has entered appearance. Hereferred to the order dated 17-2-2003 passed by the learned Rent Controller under section 13(6) of the Ordinance. This order recognizes that the respondent tenant was already depositing rent in the Government treasury in respect of the two shops inquestion. Having noted the same learned RentController then ordered that in these circumstances therespondent is directed to keep on depositing the rent atthe rate of Rs.3,772 per month accumulatively for boththe Shops Nos.16 and 17 in the Government treasury before the 15th of each succeeding month . It was emphasized by the learned counsel for the respondent that by the said order, the learned Rent Controller had approved the manner and practice of deposit of rent by the respondent in the Government treasury and has ordered that the respondent continue to deposit as done before. The record does not show nor is it asserted that the appellant landlord raised any objection to the title of the recipient of this deposit of rent that was adopted by the respondent tenant.
4. The respondent had been depositing rent in pursuance of his application dated 26-4-2002 in the names of the appellant and his son. Acting upon the order of the learned Rent Controller the respondent thereafter continued to deposit the rent directed therein in the same manner and in favour of the same persons as he had been doing before. The learned Rent Controller struck out the defence of the respondent by order of 25-5-2004 for his failure to produce challan showing deposit of rent rather than for depositing rent in the wrong name. In the Appellate Court the challans were produced by the respondent. At that stage the appellant landlord took the objection that the challans showed deposit in the wrong name; and this amounted to non-compliance with requirements of section 13(6) of the Ordinance and the order of the learned Rent Controller under that provision. Learned counsel for the appellant made reference to the judgment of the Honourable Supreme Court in the case of Bahadar Khan v. Ch. Muhammad Hussain 1991 SCMR 429 which held that deposit of the rent by the tenant in the name of Muhammad Hussain son of Imam Din rather than Muhammad Hussain son of Wali Dad, latter being thelandlord s name, was in violation of the direction under section 13(6) of the Ordinance. The appellant therein had full knowledge of the facts yet deposited rent in favour of a wrong person. Accordingly the said deposit of rent was held not to be in conformity with the provisions of section 13(6) of the Ordinance. Reliance was placed in the said judgment upon the precedent case in Ghulam Mustafa v. Mian Waqar Ahmad PLD 1980 SC 9, wherein the deposit of rent by the tenant was not in the name of landlord but in the name of his heirs. This conduct was held to be intentional disobedience of order passed under section 13(6) of the Ordinance and meant to harm the interest of the landlord by creating hurdles for him in withdrawal of the rent.
5. In the present case the deposit in question has been made by the respondent in the same names as he was making prior to the order under section 13(6) of the Ordinance. In doing so, the respondent was following the direction given by the learned Rent Controller. Therefore, no element of intentional disobedience or ulterior motives is evident from such conduct. No dispute of title has been raised by the respondent tenant to advance which he may have been accused of adding the landlord s son s name to the title of the deposit account. Further, the landlord has not shown any dispute with his son that may hamper him from withdrawing the amount deposited from the treasury. Learned counsel for the respondent tenant says that his client made the deposit in the joint names of the landlord and his son in good faith and he is willing to render every cooperation to facilitate and ensure the withdrawal of deposit rent by the appellant landlord including any consent required in the procurement of an appropriate order from a competent Court for withdrawal and indeed for regulating future deposits made by the respondent.
6. The precedents cited by the appellant deal with intentional default in the compliance of order under section 13(6) of the Ordinance committed with the object of causing harm to the landlord. In the present case since the order under section 13(6) by the learned Rent Controller approved of the manner in which the rent was being deposited by the respondent and the appellant failed to raise any objection at that stage, therefore, as such, there is no intentional violation of the mandate under section 13(6) of the Ordinance or the order of the learned Rent Controller passed thereunder. The allegation that the respondent intended to deprive the landlord appellant from the benefit of the rent deposited is also unjustified in the light of the foregoing acquiescence by the appellant and approval of the learned Rent Controller. The objection and grievance of the landlord about difficulty in withdrawal can be redressed by an appropriate order of the learned Rent Controller, making correction or giving clarification for which the tenant has undertaken his fullest cooperation, and not by depriving the respondent from his right to defend his tenant.
7. As a result, the alleged non-compliance is of a technical nature and does not stand in the way of meeting the requirement and object of section 13(6) of the Ordinance or for that matter the order passed by the learned Rent Controller on 17-2-2003 under the said provisions.
8. In view of what is discussed above, these appeals have no merit and are, accordingly, dismissed in limine.
M.B.A./F-81/L Appeals dismissed.