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Civil Petition for Special Leave to Appeal No. 258 of 1978, decided on 16th May, 1978.

(On appeal from the order dated 8‑4‑1978 of the Lahore High Court, passed in S. A. O. No. 180 of 1978).

‑‑ S. 13(6)‑Non‑compliance of Rent Controller's Order under S. 13(6)‑Effect of‑No separate trial of plea raised in excuse of non compliance necessary‑Non‑compliance of Rent Controller's order owing to petitioner's own negligence and same avoidable had petitioner acted with due diligence‑Argument of, default being not wilful and in any case petitioner being not given adequate opportunity before his defence was ordered to be struck off‑Held : Of no substance in circumstances.

Ch. Hamid‑ud‑Din, Advocate Supreme Court and Sh. Salah‑ud‑Din, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

‑This is a petition for leave to appeal against the order dated 8‑4‑1978 of the Lahore High Court, passed on the tenant's second appeal under the Rent Restriction Ordinance, thereby maintaining the orders passed by the Rent Controller and the District Judge.

In a proceeding under section 13(6) of the Rent Restriction Ordinance an order dated 8‑7‑1976 was passed by the Rent Controller, requiring the petitioner to pay arrears of rent by 22‑9‑1976 and to continue paying the future rent before the 15th of each succeeding month.

The petitioner committed default in the payment of rent for the months of July and August, whereupon, after holding necessary inquiry, his defence was ordered to be struck off. The plea taken up by the petitioner to avoid the penalty envisaged by section 13(6) of the Rent Restriction Ordinance for non‑compliance of the order of the Court dated 8‑7‑1976 was that certain audit objections had prevented the petitioner from making the deposit in time and, as such, the default was not wilful. In passing the order striking off the defence of the petitioner the Rent Controller also found that the petitioner committed default for the months of August to February because he had paid the rent for this period in' lump sum on 18th March 1977.

In appeal, the District Judge agreed with the finding recorded by the Rent Controller and held that the default on‑the part .of the petitioner was wilful and his defence had been rightly struck off.

Before the High Court, it was argued that the default could not be said to be wilful and that in any case the petitioner was not given adequate opportunity before his defence was ordered to be struck off. The learned Judge in the High Court held that in so far as the petitioner was allowed to submit a reply to the respondent's application for striking of the defence, it could not be said that he had not been afforded any opportunity as a detailed inquiry was not called for, as held by this Court in Ghulam Muhammad Lundkhor v. Safdar Ali (P L D 1967 S C 530). It was also held that merely because there were audit objections the petitioner was not absolved of the obligation of complying with the order of the Court under section 13(6) of the Ordinance. The conclusion arrived at was that it could not be said that the default was not wilful.

The petitioner has reiterated the same points that were argued before the High Court. From the reply to the application of the respondents praying for the striking off the defence of the petitioner, which has been placed before us. it appears that the audit objection was only to the effect that the petitioner should produce a copy of the order of the Court in regard to the payment of rent, i.e., the order under section 13(6) of the Rent Restriction Ordinance This was not such a formidable objection which could not be rectified without loss of time and, therefore, non‑compliance of the order of the Rent Controller in regard to payment of rent on account of which the petitioner's defence was struck off was owing to their own negligence which could have been avoided if the petitioner had acted with due diligence. In this view of the matter the default committed by the petitioner was wilful and invited the penalty of striking off his defence under section 13(6) of the Rent Restriction Ordinance. We are also in agreement with the learned Judge of the High Court that the petitioner had been afforded an opportunity to explain the non‑compliance of the order for the deposit of rent in Court and no separate trial of the plea raised in excuse of the said non‑compliance was necessary and that his defence was rightly, struck off.

The result is that this petition fails and is accordingly dismissed.

Petition dismissed.

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