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First Rent Appeal No. 574 of 1980, decided on 27th October, 1981.

----S. 13 (6)‑Deposit of rent, default in‑Tenant (appellant) not depositing rent of current month within time as ordered by Rent Controller‑Contention that counsel did not inform him and he himself was busy in official duty at relevant time‑Held, had no force in circumstances of case‑Tenant as litigant to be aware of orders of Court and comply in best possible manner.

Mirza Abdul Aziz Beg v. Mushtag Ahmed Shaikh 1980 S C M R 834 distinguished.

Hayat Ali v. Miss Aziz Mahmood 1980 S C M R 298 ; Amlr Ali v. Ali Muhammad P L D 1981 Kar. 150 and Ghulam Muhammad Khan Lundkar v. Safdar Ali P L D 1967 S C 530 ref.

Kaley Khan v. Jamia Masjid Akse Jamil 1981 C L C 92 ; Muhammad Umar v. Mst. Asha Aziz 1981 S C M R 276 and Messrs Crescent Publicity

This appeal has been filed against the order dated 23‑7‑1980 passed by the IlIrd Senior Civil Judge and Rent Controller, Hyderabad, on an applica tion under section 16(2) of the Sind Rented Premises Ordinance, 1979 filed by respondent in Rent Application No. 457 of 1979 whereby the learned Rent Controller ordered the striking off of the defence of the appellant and directed him to hand over the vacant possession of the premises in question to the respondent within a month.

The facts of the case are that respondent had filed application under section 13 of the West Pakistani Rent Restriction Ordinance, 1959 on 21‑8‑1979 against the appellant alleging therein the non‑payment of rent from February, 1979 onwards and also on the ground that ho required the premises for his own bona fide personal use and that of his children. The appellant filed written statement admitting therein that he paid rent at the rate of Rs.175 per month which included electricity and water charges. On 19‑3‑1980 tbc: learned Rent Controller passed tentative rent order directing therein that the arrears of rent from March, 1979 till February, ‑1980 amounting to Rs.2,100 be deposited by 31‑5‑1980. He further directed that future monthly rent be deposited before the 10th of every calendar month till the final disposal of the case. It is admitted position that the arrears of rent were deposited on 24‑4‑1980 well within time, that is before 31st May, 1980, and there is no cavil about the same. With regard to the depositing of the current monthly rent it is further admitted by appellant that he deposited the same, also on 24‑4‑1980. The reason for the delay in depositing the rent which, according to the appellant, was beyond his control, was that firstly the tentative rent order dated 19‑3‑1380 was passed in his absence and his Advocate did not inform him about the same except on 23‑4‑1980 when he received a telegram from Mr. Muhammad Ibrahim his Advocate asking him to contact him in connection with the rent matter. Secondly, it is the case of ‑the appellant that he being Sub‑Inspector of Excise and Taxation was required by order of the Excise and Taxation Officer, Hyderabad to perform his duties during the Saqafati Mela which was to take place at Badin with effect from 16‑4‑1980 to 21‑4‑1980. It is, therefore, his case that being busy with his official duties he could only deposit the rent after he came to know about the order on receipt of telegram, and therefore, the delay in depositing the current monthly rent was unavoidable,

A perusal of the record of the learned Rent Controller would show that the tentative rent order was passed ore 19‑3‑1980, Both the Counsel for the parties were present. This position is not controverted even at present lay the learned counsel appearing before this Court. It is also apparent that the application under section 13 for ejectment was fixed for hearing on 16‑4‑1980 and there is an application on record for adjournment of the matter signed by the appellant which has peen referred to in the diary of the Court. There is further indication in the diary elated 17‑4‑1980 which reads as under :‑‑‑

17‑4‑19180. .Advocate for applicant present. Opponent in person present Adjournment application filed and order by Co" Adjourned to 7‑5‑1980 for cross‑examination."

The diary also mentions Exh. 15 to be the application made by the appellant. The signature on the application is not denied but however it is contended by Mr. Mazhar Ali B. Chohan, the learned counsel for the appellant, that in view of the fact that the appellant was busy on official duty from 16‑4‑1980 to 21‑4‑1980 at Badin the application was in fact sent through some other person to the Court. This contention cannot be accepted as it is contrary to what is stated in the judicial record of the matter which is now before this Court. It is, therefore, apparent that the appellant attended the Court of the learned Rent Controller and, therefore, it is presumed that, in any case, he must have been aware of the tentative rent order passed on 19‑3‑1980. The fact that be was busy in doing his official duties at Badin is not considered to be any, excuse for non‑compliance with the directive of the learned Rent Controller. It was for him as opponent and as a litigant to be aware of the orders of the Court and to comply in the best manne possible. The contention that knowledge of the counsel cannot be considered to be knowledge of the appellant with regard to the passing of the tentative rent order is also apparently incorrect. If there is any fault of the counsel or the client, it is for them to settle he matter between themselves; but this type of plea cannot be accepted ,.here third parties are concerned. Even otherwise, for the reasons already stated, it is apparent that the default com mitted for depositing the current monthly rent after a delay of about 24 days was not due to any unavoidable circumstances but was, if at all, due to carelessness on the part of the appellant.

Mr. Mazhar Ali B. Chohan, the learned counsel for the appellant, has relied on Mirza Abdul Aziz Beg v. Mushtaq Ahmed Sheikh (1980 S C M R 834), a decision of the Supreme Court particularly on the observation that the tenant being in default of payment of rent only for a month, the lower Court could exercise its discretion in favour of tenant. The facts of the aforesaid case however were quite different inasmuch as the appellant had undertaken to pay the rent in advance on the first of each month and the eviction application was filed for default in payment of rent during the pendency of the lease agreement and the question of appellant's detault had to be determined solely in the light of the covenant to pay rent in. advance which was expressly accepted by him. In that case the rent of September had to be paid within 15 days on 1st of September and the rent of October within 15 days of st of November, and it was the submission on behalf of the appellant that because the advance rent deposited by the appellant had to be adjusted against the rent due from him, the appellant was in default in the payment of rent of October only. Whatever be the position, the important question to be decided was whether the discretion had been exercised properly or whether the exercise of the same was harsh. In the instant case, as already observed, the non‑payment of rent by due date was not under unavoidable circumstances, but all that has been brought out in favour of the appellant is that being burdened with official duties, he neglected to deposit the rent by the due date.

The learned, counsel has next referred to the Supreme Court decision in Hayat Ali v. Miss Aziz Mahmood (1980 S C M R 298). In that decision it was inter alia observed that in every case of non‑compliance with the order of the Rent Controller the question arises as to whether default is avoidable or not. As has already been stated in the instant case it was found by the learned Rent Controller that the default was avoidable and, for the reasons already given, this Court is also of the same view.

In Amir Ali v. .Ali Muhammad (P L D 1981 Kar. 150) it was similarly held that the Rent Controller is not obliged to grant ejectment application if deliberate default on part of tenant is not proved By deliberate default is meant that the default should not have been under unavoidable circumstances. Once it is held that the default was avoidable, it becomes in every sense deliberate default.

In Ghulam Muhammad Khan Lundkor v. Sardar Ali (P L D 1967 S C 530) it was observed that the word default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non‑compliance. To establish default one must show that the non‑compliance has been due to some avoidable cause for a person ought not to be liable for a failure due to some cause for which he is in no way responsible or which was beyond his control. It is not likely to be presumed that the law intends to cause injustice or hardship. Thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order or direction.‑‑

For obvious reasons already given in the instant case the two grounds, namely, that the counsel did not inform his client and that the appellant was busy with his official work cannot be considered to be reasons which made it unavoidable for him to deposit rent by the due date.

Mr. Syed Madad Ali Shah, the learned counsel for the respondent, has relied on the Supreme Court decision in Javaid Iqbal v. Rana Muzaffar Khan. Before the Supreme Court the plea put forward was that the tenant had not been duly apprised of the deposit for future rent by his counsel and, as such, claiming default not to be wilful was held not acceptable; and it was further held that the petitioner‑tenant being, negligent in the prosecution of his defence by failing to keep himself fully informed of the order passed against him, default in payment of rent was not unavoidable or beyond his control, and hence the order striking off his defence was unexceptional.

Mr. Syed Madad Ali Shah, the learned counsel for the respondent, has also relied upon the Lahore High Court decision in Kaley Khan v. Jamia Masjid Akse Jamil (1981 C L C 92) in which a similar plea about not being fully informed of the order of the Court was taken; and it was held that it was the duty of the tenant and also his counsel to keep themselves informed of the order of the Court, and they had themselves to blame if they failed to do so.

In Muhammad Umar v. Mst. Asha Aziz (1981 S C M R 276) the Supreme Court held that the appellant having failed to explain or justify delay of three days in deposit of the tentative rent on the ground that he had been running a hotel and of illness was not sufficient explanation for the delay in the deposit of rent.

Similarly, in the Supreme Court decision in Messrs Crescent Publicity Services v. S. M. Younus and others (1980 S C M R 779) it was held that a single default was sufficient to bring the case within the mischief of section 1 (6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959).

In the circumstances stated, and in view of the legal position discussed above, I find that there is no weight in this appeal which is accordingly dismissed with no order as to costs. The appellant is, however, granted two months time with effect from the date of this judgment to hand over vacant possession of the premises to the respondent.

K. M. A. Appeal dismissed.