2022 Y L R 2110
[Balochistan]
Before Rozi Khan Barrech, J
TORAB KHAN---Appellant
Versus
TAHIR KHAN--- Respondent
F.A.O. No. 51 of 2021, decided on 31st March, 2022.
Balochistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S. 13(6) ---Non -deposit of tentative monthly rent on fixed day - Striking off defence ---
Respondent/land lord filed eviction application against appellant/ tenant before Trial Court ---
Trial Court directed appellant to deposit tentative monthly rent---Appellant failed to deposit
rent for some months on the day fixed by trial court ---Respondent submitted an application
to strike off the defence of appellant ---Trial Court struck off the defence of appellant and
directed appellant to vacate the shop and delive r its possession to respondents ---Held, that
Trial Court in the presence of both the parties passed the order for payment of monthly rent, by which appellant was directed to deposit the monthly rent at the rate of Rs. 10000/ - per
month before 5th day of each month--- Record further transpired that the order under S.13(6)
of Balochistan Urban Rent Restriction Ordinance, 1959 was not complied with, as such, Trial Court vide order struck off the defense of appellant/tenant and directed him to vacate the
rented premises and hand over the vacant possession to respondent/applicant ---Appellant
placed on record receipts regarding deposit of rent which contained the details of rent deposited by him, which showed that in the month of April 2021, he deposited the rent amount of Rs.8000/ on 12th April instead of Rs.10000/ -and deposited an amount of
Rs.20000/ - for the months of May and June 2021 on 15th June 2021,meaning thereby that
appellant did not deposit the monthly rent of May 2021 within time ---Further appellant
deposited the rent amount of July 2021 on 15th July 2021, and for the month of August 2021,
appellant deposited the rent on 26th August, 2021 and lastly for the month of September 2021, the amount of rent was deposited on 15th September, 2021--- Appellant was not
complying with the order passed by Trial Court ---Plain, unambiguous and clear wording of
S.13(6) Balochistan Urban Rent Restriction Ordinance, 1959 was open only to one interpretation that whenever the tenant was directed to pay the monthly rent before the 15th
day of each month, the tenant must comply with the directions ---Penal clause of S.13(6) of
Balochistan Urban Rent Restriction Ordinance, 1959 had also been provided by the Legislature that in case of default ,not only his defence should be struck off, but possession of the rented premises should be ordered to be taken from him ---Provisions of S.13(6) of
Balochistan Urban Rent Restriction Ordinance, 1959, ibid were mandatory in nature ---Once the Rent Controller directed the appellant to deposit te ntative rent before the 15th of every
month, then it was mandatory upon the appellant to deposit the said rent as per the direction
of Rent Controller --Appellant had brought himself within the mischief of subsection (6) of
S.13 of Balochistan Urban Rent Restriction Ordinance, 1959 ---Appeal was dismissed.
Khawaja Muhammad Mughees's case 2001 SCMR 2020 rel.
Syed Manzoor Shah for Appellant .
Iqbal Ahmed Kasi for Respondent No. 1.
Date of hearing: 22nd March, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant in this appeal has challenged the order
dated 17.09.2021 of the court of Civil Judge/Rent Controller Sariab Quetta ("trial court")
whereby the defense of the appellant was struck off, and the forthwith eviction was ordered.
2. Brief facts leading to the filing of the instant appeal are that the respondent filed
Eviction Application No. 04/2020 under Section 13 of the Balochistan Urban Rent Restriction Ordinance 1959 (hereinafter "the Ordinance 1959") against the appellant/tenant before the trial court. The appellant was summoned who appeared and contested the said application by filing his reply. Subsequently, vide order dated 20.03.2021, the trial court directed the appellant to deposit tentative monthly rent of Rs. 10,000/ - before the 5th day of
every month. However, the appellant failed to deposit the said rent for some months on the
date fixed by the trial court. The respondent submitted an application to struck off the
defense of the appellant under section 13(6) of the Ordinance, 1959. After hearing arguments
of the parties, the trial court vide order dated 17.09.2021 the defense of the appellant, was struck off under section 13(6) of the Ordinance, 1959 and directed the appellant to vacate the shop and deliver its possession to the respondents.
Being aggrieved from the impugned order dated 17.09.2021, the appellant filed the
instant appeal.
3. I have heard arguments of the learned counsel for the parties and perused the entire
record with their able assistance.
4. Perusal of the record reveals that after the institution of the application against the
appellant, on 20.03.2021, the trial court in the presence of both the parties, passed the order for payment of monthly rent, by which the appellant was directed to deposit the monthly rent at the rate of Rs.10,000/ - per month before 5th day of each month. The record further
transpires that the order under section 13(6) of the Ordinance 1959 was passed on 20.03.2021, which was not complied with as such, the trial court vide order dated 17.09.2021 struck off the defense of the appellant and directed him to vacate the rental premises and hand over the vacant possession to the respondent/applicant. The relationship of the land lord and tenant was admitted by the parties.
The appellant placed on record receipts regarding deposit of rent which contains the
detail of rent deposited by him, which shows that in the month of April 2021, he deposited
the rent amount of Rs.8000/ - on 12th April 2021 instead of Rs. 10,000/ - and deposited the
amount of Rs.20,000/ - for the months of May and June 2021 on 15th June 2021, meaning
thereby that the appellant did not deposit the monthly rent of May 2021 within time. Further,
he deposited the rent amount July 2021 on 15th July 2021, and for the month of August 2021
he deposited the rent on 26th August 2021, and lastly, for the month of September 2021, the
amount of rent was deposited on 15th September 2021. The appellant was not complying with the order passed by the trial court dated 20.03.2021 despite that it is not disputed that after filing the eviction application, the trial court in the presence of the appellant, passed the order dated 20.03.2021 by which he was directed to pay the monthly rent before 5th day of each month.
Section 13(6) of the Ordinance, 1959 is reproduced hereunder:
"Eviction of tenant (6): In proceeding under this section on the first date of hearing 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 [fifteenth 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 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 land lord put into possession of the property without taking any further proceedings in the case.
[The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.]."
The plain, unambiguous and clear wording of the above -mentioned provisions is open
only to one interpretation that whenever the tenant is directed to pay the monthly rent before the 15th day of each month, the tenant must comply with the directions. The penal clause of section 13(6) has also been provided by the Legislature that in case of default, not only his defense shall be struck off, but possession of the rented premises shall also be ordered to be taken from him.
The provisions of section 13(6) of the Ordinance ibid are mandatory. Once the
learned Rent Controller directed the appellant to deposit of tentative rent before the 5th of every month, then it was mandatory upon the appellant to deposit the said rent as per the direction of the learned Rent Controller however, he failed to comply with the order passed by the Rent Controller under section 13(6) of the Ordinance, 1959 to deposit the rent for the month of April, May and August 2021 on the due date and deposit ed the rent for the month
of May 2021 on 15th June 2021. It is clear that the appellant has brought himself within the mischief of subsection (6) of section 13 of the ordinance. Reliance is placed on the principle laid down by Hon'ble Supreme Court in Khawaja Muhammad Mughees's case (2001 SCMR
2020) in which it was held by their Lordships that: -
"In this view of the matter, the default on the part of the petitioner stands established.
Furthermore, he had failed to comply with the interim order dated 3- 10-1997 passed
by this Court whereby he was required to deposit rent for the month of October, before the 10th 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 possession of the
property in dispute. This order will be subject to the payment of rent, current charges of electricity and gas and clearance of arrears bills of electricity within a month."
Thus, keeping in view the above stated facts, circumstances, and discussions made
thereupon, this court reached to the conclusion that the findings rendered by the learned trial court/Rent Controller are based on proper appreciation of the evidence and material available on the record of the case and the law applicable thereto, which needs no interference by this court. Therefore, the present appeal being bereft of merits is dismissed.
MHS/70/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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