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First Appeal from Order No. 50 of 1985, decided on 18th May, 1986

- Ss. 13 & 15-- Default- -Word 'default' in S.13 (6) of West Pakistan U-r-ban Rent Restriction Ordinance, 1959 does not conceive any casual omission, accidental error, bona fide mistake, incidental failure, or mere non-compliance or non-payment of rent in particular month or any such minor deviation, which obviously would not be intended to evade direction of Court--"Default" imports an element of gross negligence, dishonest withholding of rent and something more than mere non-compliance which certainly would imply greater responsibility for satisfactorily establishing 'wilful' or 'deliberate' avoidance, or 'intentional' non-performance of obligation regarding deposits of rent by tenant.-[Words and phrases].

---Ss. 13(6) & 15-- Default--Word 'default' occurring in Ordinance- Meaning.--[Words and phrases].

In legal terminology word 'default' necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that 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 was 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.

Abdul Majid v . Saadullah and another P L D 1963 Quetta 16; Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 777; Zahurul Hassan and others v. Abdul Hussain and another P L D 1977 Kar. 252; Khair Muhammad Nizamani v. Abdul Quddus P L D 1965 Kar. 367; Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11; Muhammad Amin v. Mst. Nasim Begum and others 1984 CLC 1745; Abdul Aziz and another v. Hassan Muhammad P L D 1984 Kar. 168 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 SC 530 rel.

---Ss. 13(6) & 15--Striking off defence--Default--Order of Rent Controller to deposit rent, vague, capable of different interpretations and not indicating that rent ought to have been necessarily deposited in Court--Order also did not indicate from which month rent was to be deposited--Circumstances constituting bona fide mistake on part of tenant who deposited rent in landlord's bank account instead of depositing same in Court--Rent Controller giving no reason for striking off defence of tenant and passing order of ejectment in arbitrary manner without holding inquiry about causes of omission or alleged default or realising that omission made by tenant was only of technical nature and on account of bona fide mistake or clerical error or some misunderstanding or misinterpretation of order of Rent Controller--- Anxiety of tenant for depositing rent was reflected from facts on record--Alleged deviation or non-compliance of order of Rent Controller to deposit rent was not wilful or deliberate default--Order of Rent Controller ejecting tenant after striking off his defence set aside and case remapded for completion of proceedings on merits and in accordance with law.

Messrs Peoples Steel Mills Ltd. , Karachi v . Hafizuddin and others PLD 1981 Kar. 739 ref.

Visumal Khilani v. Ali Bakhsh and others P L D 196 Kar. 521; Hashim Khan v. Ghulam Nabi and others 1973 S C M R 112; Said Rehman and others v. Mst. Balo and others 1973 S C M R 261; Irshad Ali v. Usman 1982 C L C 1389; Muhammad Sharif v. Haji Muhammad Hussain Bakhsh 1982 C L C 1847; Shaikh Maqbool Ahmad v. Muhammad Akbar Ali P L D 1978 Lah. 25 ; Pakistan Burmah Shell Ltd. v. Mian Abdur Rehman Additional District Judge, Lahore P L D 1983 Lah. 567; Qadir Khan v. Mst. Kishwar Begum 1983 C L C 613; Muhammad Yousuf v. Abdullah P L D 1980 S C 298; Muhmmad Bashir v. Muhammad Siddique and 2 others P L D 1981 Lah. 770; Messrs Mahmood Ahmed a Sons v. M.A. Marker P L D 1983 Quetta 36 and Inshallah Begum v. Shamim Akhtar 1983 C L C 2853(2) rel.

---Ss. 13(6 s 15--Striking off defence--Rent Controller, held, was under obligation to specify in unambiguous terms manner in which-tenant was required to make payment--In event that order of Rent Controller was found to be vague, sketchy or capable of double interpretation, possibility of tenant having been misled by such act of Court, held. could not be conveniently overlooked and (in given circumstances) penal consequence should not normally follow.

---S. 13(6) & 15--Striking off defence--Real object of section 13 (6), stated.

---S. 13(6)--Striking off defence, pre-requisite of--Trial Court, held, was duty bound to properly ascertain whether tenant had at all 'wily' violated direction regarding deposit of rent--Rent Controller was to consider all pleas raised by tenant for explaining of alleged non-compliance.

---S. 13(6)--Default--Striking off defence--Requirement--Strict and hypothetical construction of S.13 (6), held, would completely frustrate object and spirit of relevant provisions of law as S.13(6), was a lever to secure prompt payment of rent and did not in any way aim at penalizing either of parties for incidental slips, clerical errors, typographical mistake or any other omission of technical nature. Abdul Samad Dogar for Appellant. Khalid Malik for Respondent. Date of hearing: 14th May, 1986.

This appeal is directed against order dated 6-11-1985 passed by learned Civil Judge-cum-

Controller Loralai at Quetta, whereby on striking off the defence ejectment of appellant has been ordered from premises in dispute.

2. Brief facts leading to this appeal are that, on 30-3-1985 respondent filed an application under section 13 of Baluchistan Urban Rent Restriction Ordinance VI of 1959 (hereinafter called "The Ordinance" seeking eviction of appellant from the hall facing towards Masjid Road, located on the ground floor of building known as "Kakar Hotel" on the plea of bona fide. personal requirement.

3. Written statement was filed on 11-6-1986 wherein claim put forth in the eviction application was vehemently refuted. Preliminary objection regarding jurisdiction of Court was also raised. Trial Court on 17-7-1985 framed an issue pertaining to jurisdiction which was resolved on 18-7-1985, holding that Controller is competent to adjudicate upon the matter. Consequently on the same date viz. 18-7-1985 a direction under section 13 (6) of "The Ordinance" was made requiring the appellant to deposit future rent before 15th of each succeeding month. It is profitable to reproduce the said order sheet:-

Issues on merits were also framed, and thereafter steps were taken to record evidence on merits. During pendency of these proceedings, on 10th October, 1985 appellant submitted an application seeking modification of aforesaid order dated 18-7-1985, and thereby sought condonation of omission inadvertantly occasioned in crediting rent for the month of July, 1985 in the account of applicant on 22-7-1985 instead of depositing it with the Court. This application was however strenuously opposed by respondent asserting that failure to deposit rent in "Court", tantamounts to non-compliance of the direction, of the Court, as such defence of appellant was liable to be struck off. It is pertinent to note that except above-said reply, the respondent has not moved any application alleging, default on the part of appellant. However, learned Controller decided this application by means of judgment, dated 6-11-1985 and ordered ejectment of appellant from premises in dispute by stricking off defence. This appeal challenging abovementioned ejectment order was filed in this Court on 5-12-1985.

4. Learned counsel for appellant has contended that (i) amount of rent for the month of July, 1985 as per practice was credited in the account of respondent on 22-7-1985, therefore, there was neither any non-compliance nor default committed by the Bank, entailing consequences for stricking off defence, (ii) Besides even otherwise order of trial Court concerning direction for deposit, of rent was no in conformity with provisions of section 13(6) of "The Ordinance" as it did not indicate that rent was necessarily to be deposited in the Court, therefore, even if technical default is assumed to have been committed, the same cannot be construed to be wilful. (iii) In addition to crediting, rent in the bank account of respondent, the appellant had factually deposited rent for three months amounting to Rs.4,500 the Court through Treasury challan dated 12-8-1985, but on account of bona fide mistake and clerical error instead of mentioning months of July to September inadvertantly rent for the months of August to October was inserted in the challan. Thus, amount of rent due was obviously deposited before 15th of succeeding month as such according to appellant impugned order/judgment was patently illegal.

5. On the other hand Mr. Khalid Malik learned counsel for respondent vehemently urged that appellant had himself admitted, factum of non-compliance in his application dated 10-10-1985. Therefore, his defence was rightly struck off by the Controller. (ii) The challan shows deposits of rent only for the month of August to October, therefore, same cannot be sought to be adjusted for the month of July to September as being claimed by appellant. He thus, maintained that impugned order of ejectment passed was quite justified.

6. The facts on record admittedly indicate that an amount of Rs.1,500 in respect of rent for the month of July, 1985 was duly credited in the account of respondent on 22-7-1985. Simultaneously a sum of Rs.4,500 was also deposited in the Court by means of Treasury challan dated 12-8-1985 indicating payment of rent for the months of August, September and October. It may be noted that rent for subsequent months is also being regularly deposited in advance in the Court. It is a matter of fact that respondent did not raise any objection of his own regarding alleged non-compliance. This question had however, cropped up only when application dated 10-10-1985 was moved by the appellant.

7. In this background it has to be seen whether all these circumstances taken together constitute "default" within the meaning of section 13(6) of the "Ordinance" entailing consequences for stricking off the defence.

8. Careful examination of relevant provisions would indicate that word "default" used in section 13 (6) of "The Ordinance" apparently does not conceive any casual omission, accidental error, bona fide mistake, incidental failure, or mere non-compliance or non-payment of rent in particular month or any such minor deviation, which obviously would not be intended to evade the direction of Court. It evidently imports an element of gross negligence dishonest withholding of rent and something more than mere non-compliance which certainly would imply greater responsibility for satisfactorily establishing "wilful" or "deliberate" avoidance, or "intentional" non-performance of obligation, regarding deposits of rent by the tenant. It .may be seen that word "default" as mentioned in "The Ordinance" has been considered by the superior Courts in several judgments some of which are referred:-

(i) Abdul Majid v. Saadullah and another P L D 1963 Quetta 16.

(ii) Mst. Shah Jehan v. Mst. Mukti P L D 1963 Kar. 77.

(iii) Zahurul Hassan and others v. Abdul Hussain and another P L D 1977 Kar. 252.

(iv) Khair Muhammad Nizamani v. Abdul Quddus P L D 1965 Kar. 367.

(v) Syed Masood Hussain and others v. Muhammad Saeed Khan and others P L D 1965 Lah. 11.

(vi) Muhammad Amin v. Mst. Nasim Begum and others 1984 C L C 1745.

(vii) Abdul Aziz and another v. Hassan Muhammad P L D 1984 Kar. 168.

Meanings of "default" have also been elaborately elucidated by the Supreme Court in case Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530. The relevant portion appearing at page 539 is reproduced below:-

The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more that mere non-compliance has been due 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 intended 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 the light of observations in aforementioned reports it has to be seen, whether payment of rent by the appellant by way of credit voucher does constitute "deliberate" non-compliance or is merely result of bona fide mistake.

9. Undoubtedly, the order of Controller dated 18-7-1979 reproduced above, is vague and is capable of different interpretations. Apparently it does not indicate that rent ought to have been necessarily deposited in the Court besides whether direction for future deposits included month of July or was to commence from the subsequent months i.e. August towards. It is obviously an obligation of Controller to have specified in unambiguously terms the manner in which tenant was required to make the payment. In the event that order of Controller is found to be vague, sketchy or capable of double interpretation, possibility of tenant having been mislead by such act of the Court cannot be conveniently overlooked and in the given circumstances penal consequence should not normally follow. Apparently there is no doubt that real object of section 13(6) of "The Ordinance" is mainly to ensure that only such tenants who willingly carry out their legal and moral obligation regarding payment of rent be allowed opportunity of putting up defence, and by this method cause a curb to the tendency for prolonging ejectment proceedings without tendering monthly rental. Therefore, amount of arrears as well as rent which may fall due, during the pendency of eviction proceedings is secured through direction under section 13(6) of "The Ordinance". In this manner, provisions of law, not only control and regulate unjustified threats to the ejectment of tenants but also adequately protects and safeguard the interests of landlords. Thus, taking into consideration real spirit of rent laws as elucidated in the above-quoted judgments it was boundant duty of trial Court to have properly ascertained whether appellant had at all "wilfully" violated the direction regarding deposit of rent. It was necessary for the Controller to have considered all the pleas raised by tenant for explaining alleged non-compliance. The alternate contention concerning omission to mention' month of July in the Treasury challan dated 12-8-1985 has not been taken into consideration by the trial Court at all. Circumstancle constituting "bona fide mistake" in mentioning correct month in the challan is quite plausible. Perusal of impugned order shows that learned Controller has not given any reasons for striking off the defence ox appellant, and has passed the order of ejectment in an arbitrary manner without holding any inquiry about causes of omission or alleged default. It may be seen that factually amount concerning rent for July 1985 warm credited in the account of respondent but technically same was not deposited in the Court therefore, Controller ought to have determined with cogent reasons whether such. situation could be construed as "default" in the eyes of law. Besides appellant's willingness and preponderance to perform his legal and moral obligation for payment of rent is amply supported by the fact that apart from aforesaid credit advice rent for three months amounting to Rs.4,500 was also deposited with the Court through Treasury Challan dated 12-8-1985. Learned counsel for appellant straneously pleaded that inadvertantly due to bona fide mistake in the challan instead of rent for the period from July to September words "August to October" has been mentioned. He argued that this omission is unintentional and at best can be termed as a clerical error and is purely of technical nature. It may be seen that if insertion of months for which rent is shown to have been deposited is ignored from the challan in that case appellant has obviously tendered more amount than the "Rent Due" much ahead of time. Which means that when amount of rent deposited in Court is appropriated and adjusted against rent actually due the appellant would not be in arrears at all. When confronted with this factul situation, learned counsel for respondent stressed that omission to mention correct month in the challan was sufficient to constitute non-compliance of the direction made by Court. He also canvassed that payment by credit advice in the account of respondent tantamounts to default. To supplement his arguments reliance is placed on the observation in case (i) Messrs Peoples Steel Mills Ltd., Karachi v. Hafizuddin and others P L D 1981 Kar. 739. As regards first objection, I am afraid, such strict and hyper-technical construction would completely frustrate the object and spirit of relevant provisions of law section 13 (6) evidently is lever to secure prompt payment of rent. It does not in any way aim at penalising either of the parties for incidental slips, clerical errors, typographical mistake, or any other omission of technical nature. In the instant case apparently' the appellant has not committed any default in the strict sense of the term. Thus, principle of law relied upon by learned counsel for respondent does not apply in the peculiar circumstances of matter in hand. On the facts discussed above it appears that tender in the account of respondent was either on account of bona fide mistake or- some misunderstanding or misinterpretation of the order dated 18-7-1985. However, anxiety of appellant for depositing the rent is reflected from facts on record. Advance rent for three months was deposited before15th August, 1985. Mere wrong mention of month in the challan can be on account of bona fide mistake, or clerical error. Any other constructior would unnecesarily tend to cause manifest injustice to appellant. Therefore, alleged deviation or non-compliance, at best would constitute a fault of technical nature which cannot be legitimately equated with "wilful" or "deliberate" "default". In this view I am fortified by the observations in following decided cases:-

visumal Khilani v. Ali Bakhsh and others P L D 196 Kar. 521, Hashim Khan v. Ghulam Nabi and others 1973 S C M R 112, Said Rehman and - others v. Mst. Balo and others 1973 S C M R 261, Irshad Ali v. Usman 19132 C L C 1389, Muhammad Sharif v. Haji Muhammad Hussain Bakhsh 1982 C L C 1847, Shaikh Maqbool Ahmed v. Muhammad Akbar Ali P L D 1978 Lah. 258, Pakistan Burmah Shell Ltd. v. Mian Abdur Rehman Additional District Judge, Lahore PLD 1983 Lah. 567, Qadir Khan v. Mst. Kishwar Begum 1983 C L C 613; Muhammad Yousuf v. Abdullah P L D 1980 SC 298, Muhammad Bashir v. Muhammad Siddique and 2 others P L D 1981 Lah. 770; Messrs Mahmood Ahmed & Sons v. M.A. Marker PLD 1983 Quetta 36 and 1983 C L C 2853 (2), Inshallah Begum v. Shamim Akhtar.

For the foregoing reasons I am inclined to hold that impugned order is defective, same is accordingly directed to be set aside. Consequently case is remanded to the trial Court for completion of proceedings on merits and for expeditious disposal of the case, in accordance with law.

M.Y.H.

Case remanded

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