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Second Appeal No. 9 of 1981, decided on 27th May, 1982.

‑‑ O. IX, r. 9 read with West Pakistan Urban Rent Restriction Ordi nance (VI of 1959), S. 13(6)‑Restoration of suit‑Condonation of default‑Provisions of O. 1X, r. 9, C. P. C., held, cannot be imported for condoning default committed by a tenant in complying with directions under S. 13(6) of Ordinance.

Shivrattan G. Mohatta v. Mohammadi Steamship Co. Ltd. P L D 1965 S C 669 ; Abdur Rehman v. Allah Ditta P L D 1957 Lah. 619 ; Abdul Hamid Ismail v. Messrs Abdul Rehman Abdu, Ghani P L D 1959 Kar. 376 ; Ghulam Muhammad Khan Lundkhore v. Safdar Ali P L D 1967 S C 560 ; Jawaid Iqbal v. Muzaffar Khan 1976 S C M R 229 ref.

‑‑ S. 13(6)‑Condonation of default‑Rent Controller can strike off defence when default established on part of a tenant.

Ahsan Ali v. Jaffar Ali P L D 1964 Kar. 418 ; Khair Muhammad Ni:amani v. Abdul Quddus P L D 1965 Kar. 367 ; Moinul Haq G. Shaikh v. Mst. Zulekha 1975 C L C 650 ; Kewalram Dayararn Shahani v. Nawab Ali P L D 1978 Kar. 79 ; Salahuddin Butt v: Muhammad Tariq P L D 1981 Lah. 132 ref.

M. G. Dastghir for Appellant.

Hussain Adil Khatri for Respondent.

Dates of hearing : 3rd and 4th March, 1982.

The defence of the appellant in the rent case instituted against him on the ground of personal and bona fide requirement was struck off by the Rent Controller on account of default in compliance with the tentative rent order dated 12‑12‑1978 and the decision of the Rent Controller has been affirmed in appeal before the III Additional District Judge, Karachi, acting as the first appellate authority under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959 (I will hereinafter refer ii as the Ordinance').

2. The admitted position in the case is that on 12‑12‑1978 the Rent Controller, passed tentative rent order under section 13(6) of the Ordinance, directing the appellant to deposit in Court a sum of Rs. 2,801 as arrears of rent from April, 1978 to November, 19 8 and current monthly rent from December, 1978 @ Rs. 350 before 15th of the succeeding month until decision of the rent case. The appellant deposited a sum of Rs. 4,200 in Court on 19‑3‑1979, which covered the arrears and the current rent up to March, 1979. There was thus non‑compliance with the order of Rent Controller dated 12‑12‑1978. The explanation offered by the appellant for non‑deposit of arrears and the current rent was that his Advocate did not inform him about the rent order passed by the Controller and that as soon as he came to know of the same, he deposited the same in Court. This explanation was not accepted by the Controller as well as the first appellate authority and default is held to be wilful and deliberate. The learned counsel for the appellant contends that in view of the rule laid down in cases of Shivrattan G. Alohatta v. Mohammadi Steamship Co. Ltd. (P L D 1965 S C 669), Abdur Rehman v. Allah Ditta (P L D 1957 Lah. 619) and Abdul Hamid Ismail v. Messrs Abdul Rehman Abdul Ghani (P L D 1959 Kar. 376), the courts below should have condoned the delay in deposit of rent in Court as it was on account of misconduct and negligence on the part of appellant's counsel for which appellant should not be penalized. In the above cited cases the courts were considering the restoration of suits under Order IX, rule 9, C. P. C. dismissed for default of plaintiff and his counsel. In Shivrattan G. Mohatta's case, the Supreme Court held that the plaintiff could not be made to suffer on account of professional misconduct of his counsel and in that case the Court found that additional circumstance also existed which justified the order of restoration of suit and accordingly refused to interfere with the order of restoration of suit passed by the High Court. Similarly in Abdul Hamid Ismail's case the Court found that the counsel had given an explicit understanding to plaintiff to inform about the date of hearing which he failed to do and therefore it was held that the plaintiff could not be penalized for the negligence of his counsel and accordingly non‑appearance of plaintiff on the date of hearing of the suit was found to be for a sufficient cause within the meaning of Order IX, rule 9, C. P. C. and the suit was restored. In the last cited case of Abdul Rehman, the non‑appearance of plaintiff on the ground that he had gone to file his nomination papers for election to District Board, was held to be sufficient cause for restoration of suit dismissed for default. The principles and considerations governing restoration of suit under Order IX, rule 9, C. P. C. in my humble opinion, cannot be imported for condoning the default committed by a tenant in complying with the direction of Controller under section 13(6) of the Ordinance. Where a suit is dismissed for default of appearance of plaintiff on the date of hearing, the law gives right to the plaintiff to apply for setting aside of the dismissal order under Order IX, rule 9, C. P. C. and if he satisfies the Court that there was "sufficient cause" for his non‑appearance on that date, the Court is bound to set aside the dismissal order. There is no such parallel provision in the Ordinance to condone the default of a tenant under section 13(6) of the Ordinance. On the contrary as soon as the default is established on the part of tenant in compliance of the order under section 13(6) of the Ordinance the Controller has no option but to strike off the defence of tenant. The courts, however have condoned the default in compliance of the order of Controller under section 13(6) of the Ordinance, in some cases where it was established that the non‑compliance of the order had resulted for reasons beyond the control of tenant, on the basis of interpretation of the expression "default" used in subsection (6) off section 13 of the Ordinance. It will thus be seen that the considerations on which default in compliance with the order of Rent Controller under section 13(6) of the Ordinance is condoned by the Court is substantially different from the considerations on which the Court restored the suit dismissed for default, under Order IX, rule 9, C. P. C. The scope of condoning the default under section 13(6) of the Ordinance has been finally settled by the Supreme Court in the case of Ghulam Muhammad Khan Lundkhore v. Safdar Ali (P L D 1967 S C 560). A somewhat similar argument as is raised before me in the present case was repelled by the Supreme Court in the case of Jawaid Iqbal v. Muzaffar Khan (1976 S C M R 229), and petition for leave to appeal was dismissed by the Court. The explanation offered by the appellant was considered by the two courts below and has been rejected on cogent reasoning and therefore I find no reason to interfere with the same in second appeal.

3. It is next contended by the learned counsel for the appellant that the order of the Rent Controller dated 12‑12‑1978 passed under section 13(6) of the Ordinance was defective order and therefore for its non‑compliance the appellant's defence in the case could not be struck off. The order passed by the Rent Controller on 12‑12‑1978 is in the following terms :‑

"Heard the advocates for the parties and perused the rent statement filed by the applicant. Opponent has not filed rent account statement. I have perused the written statement wherein no dispute over the rate of the rent as it is clear from the written statement. The opponent should deposit the rent at the rate of Rs. 350 per month including water pumping charges w.e.f. April, 1978 to November, 1978 amounting to Rs. 2,800. The opponent should deposit the monthly rent at the rate of Rs. 350 per month including water pumping charges for the month of December, 1978 before 15th January, 1979. The opponent should go on depositing the monthly rent at the rate of Rs. 350 per month before 15th of each succeeding month till disposal of the case."

4. 1t is contended by the learned counsel for the appellant that the above order passed by the Rent Controller did not specify any date for deposit of the arrears of rent and therefore no default could be attributed to the appellant when he deposited the arrears on 19‑3‑1979. Even if this argument of the learned counsel is accepted there was clear default in payment of the rent for the current month of December, 1978, January and February, 1979. In the above order, besides directing the appellant to deposit arrears of rent amounting to Rs. 2,800 the Rent Controller had also directed the appellant to deposit monthly rent in Court from December, 1978 Rs. 350 per month before 15th of each succeeding month till the disposal of the case. In so far direction with regard to payment of monthly rent is concerned it was in accordance with the provisions of the Ordinance and therefore on account of appellant's failure to comply with the same, his defence was rightly struck off by the Controller. The learned counsel contends that as the first part of the order of Controller relating to arrears of rent was not in accordance with the law the whole of the order should be held to be defective. In support of his contention the learned counsel has referred to the cases Ahsan Ali v. Jaffar Ali (P L D 1964 Kar. 418). Khair Muhammad Nizamani v. Abdul Quddus (P L D 1965 Kar. 367) and Moinul Haq G. Shaikh v. Mst. Zulekha (1975 C L C 650). In Ahsan Ali's case the Controller had directed the tenant to pay the rent to landlord instead of depositing the same in Court as required by the law. In Khair Muhammad Nizamani's case the Controller directed the tenant to deposit the rent before 20th of each month while the statute required the deposit of rent before 5th of each month. Similarly, in Moinul Haq G. Shaikh's case, the Controller had directed the tenant to deposit the rent in Court while it was time‑barred. The defence in the order of Controller in all the above cases was found to be of such a nature which affected the jurisdiction of the Controller to pass the order and therefore the courts refused to strike off the defence of tenant for non‑compliance of such an order. The defect pointed out by the learned counsel for the appellant in the present case in the order of Rent Controller is not such which could render the whole of the order as void so that its non‑compliance could be ignored. At best the result of failure on the part of the Court to specify the date for deposit of the arrears of rent by the Rent Controller would be that in the event of default by the tenant in depositing the arrears of rent in Court, the defence of tenant could not be struck off for such non‑compliance but for that reason the non‑compliance of a valid direction of Rent Controller with regard to payment of monthly rent could not be ignored. In the case of Kewalram Dayaram Shahani v. Nawab Ali (P L D 1978 Kar. 79), it was held by a learned Single Judge of this Court that the two provisions about the deposit of rent due and future rent were not comulative in character and that where both are applicable, direction will be given for deposit of arrears of rent as well as future rent. It was further held in that case that if the direction with regard to arrears of rent was found to be defective, the defence of the tenant could still be struck off for non‑compliance of a valid direction for deposit of monthly rent. This view has been followed by a learned Judge of the Lahore High Court in the case of Salahuddin Butt v. Muhammad Tariq (P L D 1981 Lah. 132). I am in respectful agreement with the view expressed in Kewalram Dayaram's case. The courts below were, therefore, justified in striking off the defence of the appellant in the case as he was found to have committed default in payment of rent for the months of December, 1978: January and February, 1979. I, therefore, find no reason to interfere with the orders of courts below and dismiss this appeal but will make no order as to costs. The appellant is allowed four months time to vacate the premises.

M. Y. H.

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