Find a Lawyer

1st Appeal No. 481 and 482 of 1980, decided on 13th October 1981.

Ss. 13(6) & 15‑Defence, striking off‑Tenant depositing rent for months of March, April and June, 1979 on 15th April, 1979, 15th May, 1979 and 15th June, 1979‑Rent Controller striking off defence of tenant as rent not deposited before 15th of subsequent month‑Contention that violation cannot be considered deliberately or wilful but due to confusion about last date for depositing rent and mistake unintentional and bona fide, held, had no force‑Appeal dismissed in circumstances of case.

Visoomal Chhatomal Kilnani v. Allah Bux and others P L D 1958 Kar. 521; Sarfraz Khan v. Muhammad Abdul Rauf P L D 1969 Kar. 176 ; Muhammad Jan v. Khadim Hussain 1973 S C M R 243 and Chaudhry Muhammad Siddlque v. Muhammad Rashid P L D 1979 Lah. 273, ref.

Shamdas B. Chhagani for Appellant.

Sadak Ali G. Khoja for Respondent:

Date of hearing : 1st October 1981.

These two appeals are against the orders of the XIII Civil Judge and V Rent Controller, Karachi dated 5th March, 1980 allowing the application in such case of the respondents directing the ejectment of the appellants under section 13 subsection 3 of the West Pakistan Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) by striking off the defence of the appellants.

Since the two appeals are against the same impugned order and the respondent in both the appeals is the same landlady and also since the points involved in the two appeals are identical the same are being dealt with in this order.

The brief facts of the case are that the respondent landlady filed Rent Application against the appellants who are tenants in respect of flat No. 5 in Building No. V‑E‑1718, Nazimabad, Karachi for ejectment on the ground of default with effect from 1‑12‑1977 to 31‑7‑1978. The appellants filed written Statements denying the allegations of default in of rent and both the appellants took the plea that the rent upto May, 1978 had been paid to the husband of the respondent who promised to issue receipt, but latter failed to do so and had demanded enhanced rent from the appellants.

The learned Rent Controller passed tentative rent order dated 5‑12‑1978 directing appellants to deposit the arrears of rent from 1‑12‑1977 to 30‑11‑1978 and also monthly rent. It is the case of the two appellants that they deposited the arrears within the prescribed time and started depositing future rent in the Court. However, it is the common plea of both the appellants that the rent for months of March, April and June, 1979 were deposited on 15‑4‑1979, 15‑5‑1979 and 15‑7‑1979. The respondent filed applications in August, 1979. under section 13 (6) of the Ordinance praying that the defence of the appel lants be struck off as they had committed default in the payment of rent for the aforesaid three months. The two appellants filed objections to the said applications stating that there was no violation of the orders of the learned Rent Controller which could be considered deliberate or willful but due to confusion about the last date for depositing rent they understood that the same had to be deposited on the 15th of every month and, therefore, the rent for each of the three months had been deposited on the 15th. It was further contended that it was due to confusion and misunderstanding about the date by which the rent had to be deposited and the mistake on their part was unintentional and bona fide. The Rent Controller, after hearing the parties, passed the impugned order striking off their defence and directing them to vacate the premises, and hence these appeals.

I have heard Mr. Shamdas B. Chhangani Advocate for the appellants and Mr. Sadiqally G. Khoja, Advocate for the respondent.

It is clear from the perusal of the order of the learned Rent Controller under section' 13 (6) that he had directed deposit of rent before the 15th of every month and the point which needs decision is whether the tenant appellants' failure to deposit rent before the 15th was due‑ to avoidable cause or due to some cause which was beyond their control.

Mr. Shamdas; B. Chhangani, the learned counsel for the appellants, has argued that default in deposit of monthly rent which is to be penalised by striking off the defence should in fact be wilful and deliberate default which certainly is not the case in these appeals. He has relied upon two decisions of this Court in Visoomal Chhatomal Kilnani v. Allah Bux and others (P L D 1968 Kar. 521) and Sarfraz Khan v. Muhammad Abdul Rauf (P L D 1969 Kar. 176). Both the decisions are of Noorul Arfin J. (as he then was). In the first mentioned decision an order was made by the Rent Controller for deposit of arrears of rent and current rent and, as in the instant case, there was no dispute that arrears of rent were deposited within the. prescribed time ; but it was contended that the rent for the month of May, 1964 was not deposited before 15th of June, and the explanation given was that June, was the month of vacation in the District Court and accord ingly the respondents were under the impression that deposits would not be accepted during vacation. The respondents had deposited the rent for the months of May and June on 4th July, 1964. It was observed in that case as under :‑

'' '"There is no doubt that during the month of June, which is the vacation 1'' month for Civil Courts in Karachi no civil work is at all transacted, except urgent work. The respondents were justified in presuming that deposit of rent will not be accepted during the vacation. Their bona fides can also be judged from the further fact that they deposited rent for May and June 1964 on 4th July."

It was further observed that "in the circumstances, it cannot be held that respondents were negligent in depositing rent in compliance of the order of the rent controller." In the aforesaid decision reliance was placed on the decision of the Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530). In the aforesaid decision of the Supreme Court, whale interpreting subsection (6) of section 13 of the Ordinance, it was inter alia observed as under

"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 made 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 lightly to be presumed that the law intends to cause injustice or hard ship. 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."

In the second decision of this Court relied upon by the learned counsel for the appellants the question which arose for decision was whether the appellant made default in complying with the order of the Controller made under sec tion 13 (6) of the ordinance. It was inter alia observed that, "generally tenants have treated such a direction as direction to make payment by the stipulated date, that is, the word 'before' in the Controller's order has been treated to mean by'. It appears to my mind that in the present case the tenant made a bona fide mistake in interpreting the order of the Controller to mean that he should deposit the arrears 'by' 25th August, 1964, and not 'before' the 25th August, 1966. This kind of mistake has been quite usual amongst the tenants and quite often this mistake has occurred due to incorrect advice of counsel". In the instant case as already stated, the words used in the order the learned Rent Controller with regard to depositing the current rent were express and to the effect that the rent had to be deposited before the 15th of every month. In Muhammad .lad v. Khadim Hussain (19731SC M R 243) where the default was due to the fact that by the time the petitioner got the necessary permission from the Rent Controller on 14th of each of the said months of January and March, 1972 to deposit the rent in the State Bank of Pakistan and went to the State Bank, the banking hours had expired, and the bank was not prepared to accept the‑deposit and, therefore, the deposit had been made the following day. The respondent applied for having the defense of the petitioner struck off on the ground that rents for December, 1971 and February, 1972 had not been deposited before the 15th of January, 1972 and 15th March, 1972. The Rent Controller had held that the petitioner had committed default, and in appeal the District Judge had confirmed the order of the Rent Controller, and a second appeal had been dismissed by a learned single Judge of the High Court, in view of the concurrent findings of facts of the two Courts below, The petitioner sought special leave to appeal and it was contended on his behalf that Courts below had erred in taking the view that default was due to an avoidable cause and thus amounted to a willful disregard of the order of the Rent Controller within the principle laid down in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali. It was held that the delay in obtaining the permission of the Court for making the deposit with the State Bank was due to carelessness and was not due to any unavoidable cause, and, therefore, the failure to deposit the rent was entirely due to negligence and the case did not fall within the principle laid dawn in the case of Ghulam Muhammad Khan Lundkhor. In the instant cases of the two appellants the order was in accepted terms that the future rent had to be paid, 'before' the 15th of every month which meant that the rent should have been deposited any time up to the 14th of the month. The default, therefore, was avoidable and no proper explanation appears to be forthcoming for the alleged confusion. Reliance on the observations in the case of Sarfraz Khan v. Muhammad Abdul Rauf does not help the case of the appellants as the aforesaid observations reproduced above were made in the year 1969, and the aforesaid decision and many more decisions on the point have clarified the import of the word 'before' as used in the tentative rent order of the Rent Controller. The confusion, if any, could not have persisted after reported decisions on the point and such mistake which is contrary to ordinary meaning of the words used in the order of the Rent Controller if held be bona fide at one time can not be considered ipso facto bona fide for all time to come. Mr. Sadiqally G. Khoja, the learned counsel for the respondent, has referred to the decision of the Lahore High Court in Chaudhry Muhammad Siddique v. Muhammad Rashid (P L D 1979 Lah, 27) in which case future rent had been directed to be deposited before 15th of the month coming immediately after the month for which rent was due, and the tenant deposited the rent on 15th and not before 15th. It was held that there was nothing to show that delay for one day was due to any reason beyond the control of the tenant, and, therefore, such tenant cannot avoid legal consequences of his failure to comply with the direction of Rent Controller. In the aforesaid decision it was observed as under :‑

"Also, by now, it is not only the lawyers but also the tenants who are well aware of the penal provisions of subsection (6) of section 13 of the aforesaid Ordinance where under, if so directed, the future rent is to be deposited before and not. on the 15th of the month coming immediately after the month for which the rent becomes due, and failure to do so entails the striking off of the defence and the passing of an order for ejectment of the defaulting tenant. It, therefore, does not appeal to reason that the appellant had, in good faith, believed that rent for the month of October could be deposited on 15th of November, as well."

It was further observed that, after the rent in question had fallen due the appellant had 14 days to arrange for its deposit. If he did not deposit the rent before the aforesaid period and wanted for the 15th day to do the needful, he did so at his own risk. The 15th day it was further observed was in fact not available to him for the purpose,

The learned counsel for the respondent has pointed out that the reasoning given in the Lahore decision in no way detracts from the principle of inter pretation of subsection 6 of section 13 of the Ordinance as given by the Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar All as the non‑compliance was due to some avoidable cause which was not beyond the control of the tenant.

In view of the reasons stated, I do‑not find any substance in the two appeals which are accordingly dismissed. However, as legal points of interpretation of the law were involved, the parties are ordered to bear their own. In costs The learned Rent Controller had directed the appellants to give vacant possession of the premises to the respondent within eight months of the date of his order which period got further extended due to the pendency of the appeals. The appellants are however given two months time from the date of this Judgment to give vacant possession of &he premises to the respondent.

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.