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West Pakistan Urban Rent Restriction Ordinance (VI of 1969)‑‑

‑‑S . 13‑‑Constitution of Pakistan (1973) , Art. 199‑‑Ejectment of tenant for default in payment of rent‑‑Word "default", connotation of‑‑Obligation of tenant to pay or tender rent to landlord‑‑Mode of payment of rent in practice between tenant and landlord unsettled on account of landlord's absence abroad‑‑Tenant taking all possible steps to tender rent in so much as, on refusal of bank where on previous occasions tenant had been depositing rent, to receive same tenant had sent a bank draft to landlord which he refused to accept‑ Landlord's refusal to accept rent in lump sum which had been necessitated due to his absence from country and because of his receiving same sometime in advance and sometime requiring tenant to deposit same in bank and tenant conduct to pay rent in lump sum to landlord which landlord refused to receive, held, would not constitute default on the part of tenant‑‑In absence of rent deed between parties, default would occur if rent was not paid within sixty days of rent falling due‑‑Reasons advanced by Appellate Court being not in consonance with law in determining 'default', finding based on such reasons was set aside by High Court in exercise of constitutional jurisdiction.‑‑[Words and phrases].

Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967

SC 530 ref.

Yousuf Ali Khan, Bar‑at‑Law, for Petitioners.

Khalifa Shaukat Amin for Respondents.

Dates of hearing: 7th, 8th and 9th June, 1987.

This Constitutional petition has been filed to call in question the orders passed by the learned Rent Controller dated 7‑11‑1985 whereby the petitioners were ordered to vacate the premises in their possession and the order dated 22‑11‑1986 passed in appeal by the Additional District Judge, Lahore, whereby the order of the learned Rent Controller was upheld.

2. The brief facts of the case are that respondent Muhammad

Rafiq invoked the jurisdiction of the Rent Controller seeking eviction of the petitioners from the premises in dispute situated in Urdu Bazar Lahore. Precisely it was alleged by the respondent that the petitioners had not paid rent from January to March, 1984 at the rate of Rs.125 per month. Another ground taken by the respondent was that he desired to demolish and reconstruct the premises. The application was contested by the petitioner and following issues were framed:‑

"(1) Whether the defendant has defaulted in the payment of rent due

(2) Whether the disputed property is required by the applicant for the purposes of reconstruction

(3) Whether the application is mala fide

(4) Relief.

3. Learned Rent Controller answered all the issues in favour of the respondent and thus directed the petitioners to vacate the premises and to put the respondent in possession thereof. Similarly, the appeal taken by the petitioners assailing the said order was dismissed. This petition was admitted to regular hearing solely on the ground that in view of the facts established on the record to the effect that an attempt had been made by the petitioners to pay and tender the rent would constitute default in the eye of law.

4. The record in this case was summoned and has been perused by me. The evidence on the record reveals that Shaukat Ali A.W.1 deposed that the petitioners did not pay the rent for three months i.e. from January, 1984 to March, 1984 despite repeated demands. It was further stated by the witness that for the convenience of the petitioners he was operating and maintaining an account in the United Bank Limited, Urdu Bazar, Lahore and the petitioners had been directed by him to deposit the rent in the aforesaid account. The witness further stated that on enquiry he came to know that the petitioners had not deposited the rent since 22‑1‑1984.

5. On the other hand the case of the petitioners as revealed by the record was that initially arrangement had been made for the deposit of the rent in the United Bank Limited, Urdu Bazar, but thereafter on the directions of the respondent the deposit was made in the Muslim Commercial Bank, Shahrah‑e‑Quaid‑e‑Azam, Lahore. it was further averred in the written statement that thereafter the respondent himself started receiving the rent and had been receiving 6 months rent on each occasion. It was further pleaded that on the return of the respondent from Libya in March, 1984 where he had gone in connection with the performance of his duties, the rent for six months i.e. January, 1984 to July, 1984 was tendered to him which the respondent refused to receive and directed the petitioners to deposit the same in the U.B.L. under Account No.3194. Accordingly, when the petitioners went to deposit the rent the Bank authorities refused to accept the payment. It was further pleaded that then the petitioners got a Bank Draft prepared in the name of the respondent which was sent to him but the respondent refused to receive the same. According to the petitioners, constrained by the conduct of the respondent they started depositing the rent in Court.

6. To support their case the petitioners deposed that in the month of July, 1983 the respondent visited him and received rent for six months in advance. In 3rd week of March, 1984 the respondent on his return from Libya again visited him and behaved like a friend and rent was offered to him, but the respondent refused to receive the same and promised to come again. According to the petitioners after two

days again the rent was tendered to the respondent but he refused to receive it and directed the petitioners to deposit the same in the U.B.L. and thus when they went to the Bank, the receipt of the rent was refused by the Bank officials. Bank slip Exh.D.2 was brought on the record. Exh.D.3 is the proof of the Bank draft and the despatch of the same through Post Office receipt is Exh.D.4 which shows that the respondent refused to receive the same. The orders of the Court Exhs. D.6 to D.8 were obtained and thus, the petitioners started depositing the rent in Court. It was further stated that they had been paying or tendering rent for more than one month at one time and the respondent never objected to such mode of payment of rent.

7. A perusal of the document Exh.D.2 shows that the payment was offered in the Bank on 24‑3‑1984 but the same was refused. Exhs.D.3 and D.4 show that the rent was sent to the respondent through Bank‑draft. EXh.D.l proves that the rent from July to December, 1983 was paid on 30‑7‑1983 in aggregate. The back of the receipt also shows that the respondent had received an amount of Rs.8,000 as rent in advance. The said payment was also made on 30‑7‑1983. Exh.D.6 shows that rent for the disputed period was tendered on 14th July, 1984. The persual of the entire evidence reveals that the respondent had been receiving the rent for six months in advance and had also received Rs.8,000 as advance. It is thus, obvious, that sufficient evidence exists to deduce that the parties were not strictly receiving the rent every month inasmuch as, per admission of the respondent in cross‑examination he had been collecting rent after more than one month and also in advance as well. The arrangement for deposit of rent in the Bank, in my view, was necessitated, on account of the absence of the respondent from Pakistan.

8. Learned Additional District Judge holding that the petitioners had defaulted in the payment of rent made the following observations:‑

"The contention raised before me by the learned counsel for the respondent is that when the Bank authority had refused to collect the rent in the month of March, assumingly, on the directions of the respondent, then, it was the duty of the appellant to deposit the rent in the Court without any consumption of time. This argument by the, learned counsel for the respondent appears to have substance in it inasmuch as, in view of refusal by the Bank on 24‑3‑1984, the appellant was duty bound to tender the rent in the Court without any further delay. The payment through the Bank‑draft Exh.D.3 and Exh.D.4 does not show as to when this payment was tendered, also there was no legal justification to transmit the amount through Bank‑draft in view of clear refusal by the Bank otherwise, the payment through the receipt Exh.D.C. was made long after on 24‑3‑1984 i.e. on 14th of July, 1984. Virtually, the default in the circumstances irrespective of conduct of the respondent cannot be fortified by any mutual agreement."

9. A careful perusal shows that the reasons advanced by they learned Additional District Judge are not ‑in consonance with law to determine "default". It is the obligation of the tenant to pay or tender the rent. The mode of payment in practice between the petitioners and the respondent is unsettled. The respondent had been receiving advance rent of six months and had also received an advance rent of Rs.8,000 in the year 1979. The petitioners had taken all the steps to tender the rent inasmuch as, on the refusal of the Bank they had sent a Bank‑draft which was not received by the respondent. Thereafter, the petitioners had been depositing the rent in Court. In my view, there is some element of mischief and in fact a trap was laid by the respondent for the petitioners to fall therein so as to become defaulters.

10. As far as the term 'default' is concerned the same has been elaborated and defined by the Supreme Court of Pakistan in the case reported as Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 SC 530. The august Court 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 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."

11. The facts of the case positively reveal that the petitioners) had been trying their best to tender or pay the rent. In the first instance the petitioners approached the Bankers of the respondent, who on the instructions of the respondent refused to receive the deposit. Thereafter the petitioners sent a Bank draft and the receipt of the same was also refused by the respondent. In the circumstances of the case since the respondent was not living in Pakistan and was posted in Libya, therefore, the rent was paid in lump sum. In my view, the petitioners are not wilful defaulters from January, 1984 to March, 1984. It is pertinent to mention that after the refusal of the respondent to receive the rent, petitioners apprehending a trap for them started depositing the rent in Court. It is further pertinent to mention that no rent deed has been brought on the record and in the absence of such deed the .default would occur if the rent is not paid within sixty days of the rent falling due as provided in clause 2(i) of section 13 of Urban Rent Restriction Ordinance, 1959.

12. Issue No.2 in this case about the reconstruction of the premises was decided against the respondent. The petitioners had also adduced the evidence on the record to the effect that previously as well as the respondent had filed applications seeking eviction of the other tenants. It was also proved that the respondent intended to sell the property. In this behalf a publication was also brought on the record. The conduct of the respondent also shows that the application seeking eviction of the petitioners was not bona fide. In this view of the matter since the question of default was not properly appreciated and analysed as envisaged by law, therefore, the orders of the Rent Controller and that of the Additional District Judge upholding the same are without lawful authority.

13. Consequently, this petition is allowed and both the orders dated 7‑11‑1985 and 22‑11‑1986 passed by Rent Controller and that of the learned Additional District Judge upholding the same are hereby set aside.

A . A . / A‑170/ L Petition accepted.

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