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First Rent Appeal No.718 of 1986, decided on 26th February, 1987.
----Ss.16(1) & 21--Striking off defence--Tentative rent order--Non Compliance of--Tenant wilfully and without any reasonable cause lis-regarding order of Rent Controller to deposit amount of rent--Order of Rent Controller striking off defence of tenant and asking him to vacate premises, held, called for no interference.
Hayat Khan v. Razia Mahmud 1980 S C M R 298; Maqsood Ahmed Khawaja and another v. Asmat Begum 1985 C L C 1945;M/s. Bisvil Spinners Ltd. and 2 others v. Ahmed Aziz Zia and another 1985 C L C 1207 and Ghulam Muhammad Khan Lundkhor v. Safdar Ali L D 1967 S C 530 rel.
Barkat Ali v. Noor Hussain 1985 C L C 2445; P L D 1965 Lah.13 and 1984 C L C 68 ref.
---Ss.16(1) & 21--Striking off defence--Non-compliance of tentative rent order--Only genuine and honest mistake on part of tenant could be taken note of--Wilful negligence or disregard of order of Rent Controller, held, could not be condoned.
1985 C L C 1945 rel.
---Ss.16(1) & 21--Tentative rent order--Order with regard to deposit of further monthly rent--Rent Controller after passing the tentative rent order has to direct tenant to deposit monthly rent regularly on or before 10th of every month until final disposal of the case.
Makhdoom Ali Khan for Appellant.
Khalilur Rehman for Respondent.
Date of hearing: 26th February, 1987.
This is a first Rent Appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) against the order dated 28th Aug. 1986, passed by the IInd Sr. Civil Judge and Rent Controller/ ASJ/(East) in Rent Case No.675/85 striking off the defence of the appellant and directing it to put the respondent in vacant possession of the premises within 60 days of the date of the order.
2. The facts giving rise to this appeal, briefly stated, are that the appellant is the tenant of the respondent in respect of the shop premises on a portion of the ground floor and also the Mazzanine Floor of respondent's building known as "Al-Falah" standing on Plot No.11-C, situated in the Commercial Area of Muhammad Ali Cooperative Housing Society, Karachi, at a monthly rent of Rs.700 apart from and in addition to the water and conservancy charges payable to K.M.C. and also its share in Betterment Tax, which amount of charges/taxes are also payable by the appellant as and by way of rent (as per para 2 of the Ejectment Application). The appellant's share in Betterment Tax was stated to be Rs.402/- per annum, which it had allegedly failed to pay for a period of 8 years amounting to Rs.3,216/-. The default in payment of rent was claimed to be for five years from 1976-77 to 1980-81 amounting to Rs.4,870/-. The appellant filed written statement denying the alleged default in payment of rent. It further alleged that the Betterment Tax was the liability the respondent-landlord who was recovering rent far in excess of the legally payable rent.
On 16-12-1981 'the respondent made 'an application under section 16(1) of the Ordinance claiming the payment of total sum of Rs.8,08,6/ as under:-
"6(i) Water charges for the year 1976-77 to 1980-81 at Rs.974/- p.a. --- 4,870.00
(ii) Betterment charges at Rs.402/- p.a. for the period of 8 years.--------- 3,216.00
Total:----------------------------------------------------------------------- 8,086.00
3. The appellant filed detailed objections to the said application denying its liability to. pay the amount as claimed by the respondent or any other amount whatsoever. The learned Rent Controller after hearing the learned counsel for the parties passed an order on 30th July, 1984, and directed the appellant to deposit the water charges w.e.f. 1978-79 to 1983-84 at Rs.974/- per annum totalling Rs.5,844/-. He further directed the Betterment Tax for the above period at Rs.402/- per annum amounting to Rs.2,412/- within 80 days from the passing of the order. The respondent was directed not to withdraw the amount of Settlement taxes till disposal of the case: The appellant was also directed to deposit the future water charges at the same rate as above, i.e. Rs.,8,102/-,per month and the Betterment tax at Rs.34/- per month with effect from July, 1984 on or before 10th of succeeding calendar month 'till-disposal of case.
4. On 27th May, 1986 the respondent made an application stating that the appellant had failed to deposit the arrears of water tax and betterment tax in terms of the order of the court dated 30th July, 1984. The respondent filed objections to the said application wherein the non-compliance of the tentative order was admitted but it was pleaded that there was no wilful default or negligence or carelessness on its part in depositing the money in time. An application under section 5 of the Limitation Act duly supported by an affidavit of Mr.Syed Murtaza Ali, Advocate, the counsel for the appellant was filed before the learned Rent Controller, wherein it was mentioned that orders on the application under section 16(1) of the Ordinance were not pronounced upto 2.30 p.m. on 30th July, 1984 and hence after making inquiries from the Rent Controller on 31-7-1984 the learned counsel learnt that the appellant had been ordered to deposit the moneys claimed by the respondent vide his application under section 16(1) of the Sind Rented Premises Ordinance, 1979, within 60 days. An application for copy was made on 31-7-1984. The counsel was, however, unable to read the handwritten order and he applied for a certified copy. The certified copies of the order were not ready upto 9-8-1984 (noon). The courts were closed on 10th and 11th August, 1984, on account of Friday and Saturday. The copyist was again on leave on 12th August and hence the certified copy of the order was obtained on 13th Aug. 1984 (A.F.)'and after going through it the counsel learnt that it also included orders directing the appellant to deposit from July 1984 onwards water tax and betterment tax at, Rs.81/02 and Rs.34/- per-month respectively, on or before 10th of each succeeding month till the disposal of the case. This order was thus duly complied with on 15th Aug.1984. The learned Rent Controller, however, struck off the defence of the appellant by his order dated 28th Aug.1986 which has been assailed in this appeal. Earlier than this, it may further be noted, the learned Rent Controller, had through a separate order dated 25-8-1986 dismissed the application dated 15th Aug.1984, made a/s 5 of Limitation Act.
5. I have heard the learned counsel of the parties. Mr. Makhdoom Ali Khan, learned counsel for the appellant, raised the following contentions:--
(i) The default in payment of the taxes was not deliberate-: as explained by the counsel for the appellant in lower court -in his affidavit; the contents whereof remained un-controverted in the absence of any counter-affidavit.
(ii) That through another application dated 10-5-1986 filed in the trial court the appellant had informed that the water charges are being deposited in KMC and that the appellant was not liable to deposit betterment charges;
(iii) That the learned Rent Controller failed to apply his mind judiciously to the facts which led to the non-compliance of tentative order and consequently he erred in striking off the defence of the appellant without examining the averments made in the affidavit.
He sought to support his contentions by the following authorities: ---
(a) Hayat Khan v. Razia Mahmud 1980 S C M R 298 in which the Hon'ble Supreme Court has held:
" ..As held in Ghulam Muhammad Khan Lundkhor v. Safdar Ali, in every case of non-compliance the question arises as to whether the default in avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows that is, the striking off the defence. Again, if the default is unavoidable then the non-compliance is excusable in which case the Rent Controller can condone the non-performance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explanation resting on facts and in a given case his decision be erroneous."
(b) Maqsood Ahmed Khawaja and another v. Asmat Begum 1985 C L C 1945 (1948) in which it is held;
"...It need not be exphasised here that the non-compliance of the direction of Controller which would result in striking off the defence of a tenant in a rent case must be deliberate and wilful. A, default which is caused as a result of bona fide mistake on the part of tenant in understanding the direction of Rent Controller can neither be wilful nor deliberate so as to result in striking off the defence of a tenant in a rent case."
(c) M/s Bisvil Spinners Ltd. & 2 others v. Ahmed Aziz Zia & another 1985 C L C 1207 in which the Lahore High Court has held:
"...provisions of section 13(6) of the Rent Ordinance, though mandatory in nature and have to be given effect to in case of default but then "default" as observed by the Supreme Court of Pakistan in case Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530, necessarily imports an element of negligence or fault and means something more than mere non-compliance'. From this, it necessarily follows that the Court while passing an order under section 13(6) striking off the defence of a tenant must necessarily look to the circumstances attending the default. In case it-was found that the default was unavoidable and was beyond the control of the tenant, then an order of ejectment may not follow. This part of section 13 is designed to test the bona fides of the tenant in the matter of defending ejectment proceedings brought against him and also to ensure prompt payment of the rent past as well as future to the landlord during the pendency of the proceedings before the special tribunal."
(iv) Alternatively, the learned counsel urged that it was at best a case of counsel's negligence for which the appellant should not be punished, as held in Barkat Ali v . Noor Hussain 1985 C L C 2445. This case is distinguishable on its own facts and hence I refrain to deal with it.
(v) The next contention of the learned counsel was that the act of alleged default took place on 10-8-1984 whereas the application for striking off the defence was made as late as on 27-5-1985 and hence it was a case of waiver on the part of the respondent. In this connection he cited an authority of the Lahore High Court reported in P L D 1965 Lah. 13. I do not, however, find that it any way lends support to this case as it is completely distinguishable on facts.
Lastly, the learned counsel submitted that the failure on the part of the Rent Controller to consider and dispose of the objection regarding the alleged liability to pay betterment tax has rendered his order illegal and no penalty could be imposed for its violation. To substantiate his contention he referred to 1984 C L C 68.
6. Mr.Khalilur Rehman, the learned counsel for the respondent, on the other hand, submitted that the tentative order dated 30-7-1984 was passed in the presence of both the parties. Even otherwise the handwritten order is very clear regarding payment of future rent. Moreover, the order was admittedly conveyed to the advocate of the appellant by the learned Rent Controller on 31-7-1984 and hence there was no justification for the 'appellant not to have paid the future rent which the Rent Controller was legally obliged to pass under the provisions of section 16(1) of the Ordinance, notwithstanding the fact the landlord had not prayed for it.
Explaining the reasons for making the application under section 16(2) of the Ordinance so late, the learned counsel submitted that the case file was all the time moving out of the court of the Rent Controller in connection with the transfer of the case and the different proceedings adopted by the appellant in the District Court including a W.P.No.D-66 of 1984 in the High Court. He further submitted that the mere delay in filing the application under section 16(2) of the Ordinance did not tantamount to waiver. Mr. Khalil emphasised that the learned Rent Controller has passed the impugned order after giving due consideration to the objections raised by the appellant. The betterment tax is covered by the definition of the word "rent" as contained in section 2(i) of the Ordinance.
7. The main issue that falls for determination in this appeal is whether the appellant had failed to comply with the tentative order of the Rent Controller for some unavoidable cause. Or to put it otherwise, whether the default was not for any unavoidable cause and it amounted to wilful disregard of the order of the Rent Controller.
8. Before proceeding further I would like to reproduce herein below the observations made by the Hon'ble Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali, P L D 1967 S 530, in regard to default. It is held 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 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."
9. The appellant's stand for not depositing the rent within the period allowed by the Rent Controller as taken in the affidavit of Mr.Syed Murtaza Ali, Adv. filed in support of the application under section 5 of the Limitation Act for extension of time was that the orders on the application under section 16(1) of the Ordinance were not pronounced before 2.30 p.m. and that when on 31-7-1984, the learned Rent Controller informed the deponent that the appellant had been ordered to deposit the moneys claimed by the respondent vide his application under section 16(1) of the Ordinance within 60 days, he attempted to read the handwritten order but could not read it as it was illegible. It is further averred therein that an application for Copy of the order was immediately made on 31-7-1984 and that it was on afternoon, that the certified copy was received. The appellant was, therefore, immediately directed to deposit the amount of water charges and betterment tax of the month of July 1984. The said amount was duly deposited on 15-8-1984.
A reference to the order sheet entry of the lower court dated 30-7-1984 clearly makes a mention that parties' advocates were present. It seems appropriate to reproduce it, in extenso, below:
"30-7-1984--Parties' advocates are preset. Order passed on application under section 16(1) of SRP and 3 applications moved by the opponent under section 151 C.P.C. which are on record. Affidavits-in-evidence yet not filed. Case adjourned to 20-8-1984 for affidavits-in-evidence of applicant."
Sd/ VII R.C."
10. It is pertinent to note that the fact as recorded in the order sheet entry reproduced above has not been specifically controverted. Ifs correctness, therefore, cannot be doubted. Moreover, in his impugned order the learned Rent Controller while allowing the application of the respondent under section 16(2) of the Ordinance has observed that "in this respect, it is pertinent to note that the parties advocates were present on 30-7-1984 (wrongly typed 30-7-1984), when the tentative order was passed, moreover the application of true copy reveals that the opponent has deposited the costs for obtaining the copy of 1-8-1984 and the copy was made ready on 9-8-1984, therefore I do not find any force in the arguments advanced by the learned Opponent's advocate regarding knowledge of the order". These facts as recorded in the impugned order have not been in the least controverted through any affidavit either of the counsel of the appellant in the lower court or by the appellant himself.
Moreover, I have myself perused the handwritten order of the learned Rent Controller dated 30-7-1984 and I find that it is not as badly written as has been alleged by the deponent in his affidavit. The directions regarding payment of the water charges at the rate of Rs.81.02 per month w.e.f. July 1984 on or before succeeding calendar month and so also direction regarding the deposit of betterment tax from July 1984 at the rate of Rs.34/- only per month by 10th of succeeding calendar month till the disposal of the case are quite legible and I do not find that the statement as made in the affidavit can be wholly believed.
A perusal of the endorsement made on the application for copy of the order on 31-7-1984 which exists at page 53 of part II further reveals that the cost was estimated on 1-8-1984 whereas it was deposited on 5-8-1984. The date of delivery as given thereon is 10th August, 1984.
11. In order to further ascertain the facts as mentioned in the affidavit of Syed Murtaza Ali with regard to the delivery of the copy of the order to him, I wanted to see the certified copy which was allegedly issued on 13-8-1984. It could not despite demand be made available to me by the learned counsel for the appellant. A certified copy of the order dated 30-7-1984 has been filed alongwith the memo of appeal but it is one that was applied on 28-8-1986 and was obtained on 14-9-1986. In the absence of the concerned certified copy of the said order it cannot definitely be ascertained as to when was the copy made ready, when were the 'stamps affixed and when it was certified. Furthermore, no explanation is forthcoming as to why the counsel for the appellant who had deposited the cost of the certified copy on 1-8-1984 could not get the information regarding the amount ordered to be deposited with the assistance of the copyet after going through the order passed under section 16(1).
12. After giving my due consideration to the facts and circumstances of the case I have not the least hesitation in reaching the conclusion that the appellant has utterly failed to establish that it was for some unavoidable cause that it could not deposit the amount of rent for July, 1984 by or before 10th August, 1984. All the circumstances are sufficient to hold that the appellant had wilfully and without any reasonable cause disregarded the order of the Rent Controller. The impugned order of the Rent Controller, therefore, does not call for any interference.
13. Having reached the above conclusion upon they appreciation of the facts of this case I do not feel called upon the deal with the other contentions urged by the learned counsel for the appellant before me. However, in-the passing I may observe that the second above-noted contention of the learned counsel is without substance inasmuch as having committed the default in payment of the current rent as per tentative rent order of the learned Rent Controller it was not legally open to the appellant to be heard until it was shown that its defence was not liable to be struck off for non-compliance of the order made under section 16(1) of the Ordinance.
The question of the appellant's being liable to deposit the betterment tax or that the water charges were being deposited in KMC and that for that reason it was absolved of the responsibility to pay the same could be determined upon the final adjudication of the case if the appellant would not have debarred itself from contesting the ejectment proceedings.
14. The contention of the learned counsel for the appellant to the effect that it was at best a case of the counsel's negligence for which the appellant could not be punished is unsustainable.
15. On genuine and honest mistakes on the part of the tenant or his counsel can undoubtedly be taken note of and in appropriate cases condoned but wilful negligence or disregard of the order of the Rent Controller cannot be condoned.
It seems appropriate to refer to the following observations of Saeduzzaman Siddiqui, J in the case of Maqsood Ahmed Khawaja and another v. Asmat Begum reported in 1985 C L C 1945 appearing at page 1945:----
"In so far a tenant is able to show that it acted honestly and in a bona fide manner to comply with the directions of the Rent Controller and the non-compliance resulted on account of such bona fide plea, on his part, such non-compliance cannot be treated as wilful default of the order, whether it be on the mistaken advice of the counsel or a bona fide mistake of the tenant."
5. It is in fact in the context of the facts of each individual case that decision has to be taken whether the non-compliance of the tentative rent order of the Rent Controller amounted to a default or not. Since upon the appreciation of the facts and circumstances of the case I have already held that the appellant had no reasonable cause for non-compliance with the order of the learned Rent Controller, the plea as raised by the counsel does not carry any weight.
17. The question of waiver also, in the circumstances of the case does not arise inasmuch as the application for enlargement of time made by the appellant for depositing the rent was made available to the respondent as late as on 10th May, 1986. The application under section 16(2) of the Ordinance for striking off the defence was made on 27th May, 1986 and hence the respondent in no way acquiescenced to the default in question.
18. Before parting with the case I would like to point out that the plea of the 'applicant with regard to his not knowing about the date by which the current monthly rent was to be deposited is ex facie, unsustainable in view of the clear provision of law as contained under section 16(1) of the Ordinance to the effect that the Rent Controller shall further direct the tenant to deposit monthly rent regularly on or before 10th of every month, until final disposal of the case. In view of the specific provision of law laying down 10th of every month as the last date for depositing the monthly rent regularly until final disposal of the case, the plea of the appellant deserves to be brushed aside summarily.
19. These are the detailed reasons for dismissing the appeal by the following short order dated 26-2-1987.
"26-2-1987 Mr.Makhdoom Ali Khan, Advocate. Mr.Khalilur Rehman, Advocate.
I have heard the learned counsel for both the parties at length. I don't find any substance in this appeal. It is, therefore, dismissed for detailed reasons to follow. The tenant shall vacate the premises within 60 days from today."
M.Y.H./A-103/K Appeal dismissed.
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