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Writ Petition No. 1139 of 1982, decided on 30th October, 1982.

‑‑‑ S. 13‑JEviction proceedings‑Wilful default in payment of rent Tenant failing to deposit rent by prescribed time on account of reasons beyond his control and thereafter depositing rent without further loss of time‑Default, held, not wilful‑Eviction order, set aside.

Ghulam Muhammad Khan Lundkhor v. Safdar Ali P ,L D 1,967 S C 530 ; Abdul Majid v. Saadulla and another P L D 1963 (W. P.) Quetta 16; Javed lqbal v. Muzafar Khan 1976 S C M R 229 ; Ch. Muhammad Siddique v. Muhammad Sharif ,P L D 1979 Lah. 273 and Haji Muhammad Taqi v. Sher Muhammad 1980 C L C 231 ref.

(b) Constitution of Pakistan (1973)‑

‑‑ Art. 199‑West Pakistan Urban Rent Restriction Ordinance (VI of 1959) S. 13‑‑Lower Court passing faulty, order in utter disregard of judgments of superior Courts‑Constitutional petition allowed, is circumstances.

Irshad Ahmad Qureshi for Petitioner.

Malik Muhammad Qayyum for Respondents Nos. 1 and 2.

Date of hearing : 30th October, 1982.

This constitutional petition calls in question the order dated 22nd February, 1982 passed by the learned Appellate Authority viz. Addi tional District Judge, Lahore; (respondent No. 3) whereby he accepted the appeal against the orders dated 30th September, 1980 and 15th February, 1981 passed by the Rent Controller, Lahore, and directed eviction of, the petitioner from the tenanted premises.

2. Property bearing No. 81 Shahrah‑e‑Quaid‑i‑Azam, Lahore, forming part of Waqf Khan Babadur Sheikh Muhammad Naqi, was rented by the petitioner about 20/22 years back. In December, 1978, respondents Nos. 1 and 2 the trustees of the Waqf filed ejectment proceed ings before the learned Controller seeking eviction of the petitioner on the sole ground of default in payment of rent. The application was of course resisted by the petitioner and the necessary issues were framed by the Controller:

3. The learned Controller after recording the parties evidence came to the conclusion that the petitioner was not a defaulter in payment of rent and consequently vide his order dated 15th February, 1981 he dismissed the ejectment petition.

4. It is, however, noteworthy that‑in February, 1979 the Controller had passed an order under subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, directing the petitioner to deposit the monthly rent before the 15th of every succeeding month, The rent for the months of February and September, 1979 was, however, not paid by the time prescribed by the Court and the delay of one day had occurred in each case. Respondents Nos. 1 and 2 filed an application before the Controller on. 10th May, 1.980 for striking off the defence of the petitioner under section 13 (6) ibid contending that the petitioner had failed to deposit the rent for the months of February; August and September, 1.979 in accordance with the order of the Controller. ' It, how ever, transpire that the rent for the month of .August, 1979, was duly paid in time and in regard to rent for the months of February and September, 1979 petitioner moved an application on 20th May, 1980 seeking condonation of delay of one day in each case offering his 'explana tion for his inability to deposit the rent for these months by the prescribed dates. The learned' Controller after hearing the parties arguments vide his order, dated 30th September, 1980 accepted the application of the peti tioner observing that he had given reasonable explanation of the delay of one day in each case.

5. Respondents Nos. 1 and 2 after their application for ejectment having been dismissed by the Controller on 15th February, 1981 preferred an. appeal before respondent No. 3. In the memo. of appeal respondents Nos. 1 and 2 mainly took exception to the order dated 30th September, 1980 passed by the Controller whereby he had 'condoned the delay of one day in case of deposit of monthly rent for the months of February and August, 1979 and had not struck .off the defence of the petitioner

6. The learned Appellate Authority i. e. . respondent: No. 3 vide his impugned judgment dated 22nd February,. 1982 did not find fault with the Controller's findings that the petitioner was not a defaulter in payment of rent but took exception to‑the Controller's order dated 30th September, 1980 whereby he had condoned delay of one day each. in case of deposit of monthly rent of February and September, 1979 under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. The learned Appellate Authority (respondent No. 3) observed :

"As far as legal position is concerned, nowhere it is provided in subsection (6) of section 13 of the West Pakistan Urban Rent Restric tion Ordinance, 1959 that the learned Rent Controller should see deeply if or not the default was wilful."

7. In Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530, it has been ruled :‑

"The word defaulter' 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 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."

In Abdul Majid v. Saadullah and another P L D 1963 (W. P.) Quetta 16, it was held that default occurred for reasons beyond control of tenant can be condoned provided tenant without further loss of time makes good the default and explains circumstances.

8. In the circumstances of the instant case, it has been explained by the petitioner that the rent for the month of February, 1979 could not be deposited before the 15th of the succeeding month as the order under the provisions of section 13 (6) ibid was passed in the month of February, and the petitioner was under the impression that the rent for the month of February is to be deposited subsequently, but he learnt from his counsel on 15th that rent for the month of February has also to be deposited. He on the following day without any further loss of time deposited the rent for the month of February. As regards the rent for the month of September, 1979, it is stated that the Peon of the petitioner's firm who used to deposit the rent earlier as well met with an accident while going towards the Bank on the 14th, therefore, the rent was deposited on the following day i. e. on the 15th. There is nothing on the ‑record to contradict these pleas. It, therefore, clearly transpires that the petitioner could not deposit the rent for the months of February and September, 1979 by the prescribed time on account of reasons beyond his control and thereafter he deposited the rent without any further loss of time. In the circumstances of this case, therefore, the default in regard to the deposit of rent for the months of February and September, 1979 on the part of the petitioner cannot be regarded as wilful warranting striking off the defence of the petitioner. The view expressed by the learned Appellate Authority that legally the Controller had no jurisdiction to ascertain as to whether the default was wilful or not is undoubtedly erroneous.: and not sustainable.

9. Reliance on behalf of the respondent has been placed on Javed Iqbal v. Muzaffar Khan 1976 S C M R 229 Ch. Muhammad Siddique v. Muhammad Sharif P L D 1979 Lah. 273 and Haji Muhammad Taqi v. Sher Muhammad 1980 C L C 231 . All these case are distinguishable on merits. Nevertheless in these authorities also has been held that the failure to deposit the rent on the part of the tenant by the prescribed time on account of circumstances beyond his control cannot be regarded as default.

10. For the foregoing reasons, it is concluded that the impugned order passed by the learned Additional District Judge, Lahore, is not only faulty but is in utter disregard of the judgments of the, superior Courts. The constitutional petition is, therefore, allowed and the impugned order is declared as having been passed without lawful authority and of no legal effect. No order, however, is made as to costs.

M. Y. M. Petition allowed.

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