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Letters Patent Appeal No. 1 of 1962, decided on 10th June 1963.

S. 13 (6)‑Rate of rent and amount of arrears disputed --Controller to determine approximately rate as well as amount of arrears due not only on claim put forward by landlord but also taking into consideration contention of the tenant‑Tenant, however, not disputing rate of rent but claiming set‑off on account of expenses incurred in repairs etc.‑Matter cannot be taken into account by Controller at initial stage while making direc tion for deposit of rent and arrears under S. 13(6).

S. 13(6) ‑ "Default" ‑ Meaning ‑ Default occurring for reasons beyond control of tenant can be condoned provided tenant without further loss of time makes good the default and explains circumstances‑Default made wilfully and/or negligently‑Cannot be condoned.

Stroud's Dictionary ref.

Yehya Bakhtiar for Appellant.

Karam Elahi Awan for Respondents.

Dates of hearing : 4th and 5th June 1963.

‑This is a certified Letters Patent Appeal against the judgment of the learned Single Judge of this Court made in a second appeal under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) (hereafter to be referred as the Ordinance). Briefly the facts are as follows:

On the 21st of December 1960, the respondents Saadullah and Ubedullah, both real brothers, filed a petition for ejectment of the appellant Abdul Majid, from shop No. 1‑9/55, situated on the Ali Bhoy Road, Quetta, on the ground that the appellant who was in occupation of this shop as the respondents' tenant had fallen in arrears of rent for a period of sixteen months from August 1959 to December 1960, total amounting to Rs. 400, at the rate of Rs. 25 per mensem. The application was made before the Rent Controller, Quetta, under section 13 of the Ordinance. The appellant filed his rejoinder on the 2nd of March 1961, stating that he did not owe any amount for arrears of rent to the respondents because he had paid Rs. 144‑8‑0 as taxes on behalf of the respondent‑landlords for the shop in dispute and some other property belonging to them and that he had spent. Rs. 225‑3‑0 on repairs of the shop with the consent of the res pondents. He alleged that after adjusting these two items the balance of Rs. 30‑5‑0 due was tendered by him to the respondents in January 1961 but they had refused to accept it. On the same day i.e., the 2nd of March 1961, the learned Rent Con troller made an order under subsection (6) of section 13 of the Ordinance, requiring the tenant to deposit Rs. 400, towards arrears of rent by the 30th of March 1961, and to pay the future monthly rent before the 5th of each succeeding month. The case could not be taken up on the 30th of March 1961, as the Rent Controller was absent and it was posted to the 2nd of April 1961. The appellant failed to comply with the orders of the Rent Controller by that date and in consequence his defence was struck off.

2. The appellant went in appeal to the District Judge, Quetta, against the order of the Rent Controller and some time during the pendency of the appeal he also made a deposit of Rs. 400 in the treasury towards arrears of rent with the permission of the Rent Controller. His appeal was, however, dismissed on the 26th of July 1962, by the District Judge. The ground urged in appeal was that the appellant had fallen ill on the 20th of March 1961, and he remained ill till after the 30th of March 1961, first in his village and then in the Civil Hospital at Quetta. It was urged that the default committed by him in not complying with the orders of the Rent Controller to deposit the rent in time was not wilful, having occurred by reason of his illness.

3. A second appeal was then lodged by him in the High Court which was dismissed by our brother Mr. Justice Raymond by his order under appeal. On a subsequent applica tion the learned Judge certified the matter to be a fit one for a Letters Patent Appeal, as it raised points of general importance which he listed as follows :‑

"(1) Whether the Sub‑Judge and Rent Controller had in fact applied his mind to the deposit (sic) as to quantum of rent before passing his order, directing payment of deposit rent (sic).

(2) Whether the default in making the required deposit of rent is absolute or subject to exceptional circumstances."

4. Mr. Yahya Bakhtiar, the learned counsel for the appellant has argued both these points before us and his con tention as regards the first point is that where the amount of arrears of rent due or the rate of rent is disputed by the tenant, the Controller under the latter part of subsection (6) of section 13 of the Ordinance is under an obligation to determine such amount approximately and then direct that the same be deposited by the tenant before a date to be fixed for the purpose. This deter mination, according to the learned counsel, involves a judicial consideration of the relevant data and not mere off‑hand acceptance of the landlord's claim. Conversely, it is argued by reference to the first part of the subsection that where there is no dispute either with regard to the rate of rent or the arrears of rent the Controller has to make an order for deposit on the claim made by the landlord. It is contended that in this case the tenant‑appellant was disputing the amount of arrears due from him and, therefore, the Controller should have determined the amount actually due by applying his mind to the matter which he does not seem to have done.

5. It seems clear that subsection (6) ibid does contemplate a distinction between the two types of cases, i.e., cases where the rate of rent or the amount of arrears is not disputed and cases where it is so disputed. And there is thus also a difference of approach in the matter of the direction which is to be made for deposit of the arrears and for payment of the monthly future rent. In cases of disputed rents the Controller has to determine the rate as also the amount of arrears due approxi mately, and for that matter he has to be guided not merely by the claim put forward by the landlord but also the rival contention of the tenant, The provision for the deposit of the arrears and for the regular payment of the future monthly rent is a safeguard for the landlord to ensure the receipt of his dues from the tenant by the time the contest comes to an end. Under subsection (8) of section 13 the rent deposited by the tenant has to be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller subject to the final determination of the rent as payable by the tenant. The provision makes it a pre‑requisite condition that the tenant who wants to litigate against the one landlord to be saved from eviction must pay up the arrears due and also the running monthly rent, otherwise the litigation will be entirely at the risk and to the detriment of the landlord. The word "approximately" used in the provision gives a clue to the intention of the Legislature that the Controller, while making the order for deposit of arrears, is not to lend himself in an intensive inquiry as to the rate of rent or the amount of rent actually due from the tenant which has, at any rate, to be investigated in due course of the trial on the plea of the tenant as a regular issue. In the present case, however, it seems to us the second half of the provision requiring the Controller to "approximately" determine the amount of arrears or the rate of rent was not at all attracted because no dispute was raised in this connection by the tenant. The rate of rent was admitted by him as Rs. 25 per mensem and so also the outstanding arrears amounting to Rs. 400 as claimed by the landlord. What was actually contended by the appellant‑tenant was that he had paid up the arrears on adjustment of the items of expenditure that he had incurred in payment of taxes on behalf of the landlord and on the repairs of the disputed shop carried out by him and the balance which was allegedly tendered by him was not accepted. In other words, he was claiming a set‑off against the respondents' claim of arrears of rent which is entirely a separate matter requiring investigation in the course of the trial, but which, in our view, was not at all a factor to be taken into account by the Controller at the initial stage of the case while making al direction for deposit of the arrears of rent by the tenant under- subsection (6) of section 13 of the Ordinance.

6. The appellant's case is equally devoid of force on the second contention. The word "default" as used in the context of subsection (6) of section 13 of the Ordinance bears the connota tion as explained in Stroud's Dictionary, to embrace every failure in the performance of an obligation unless prevented by superior force over which he obliges has had no control. The phrase "if the tenant makes default in the compliance of such an order" has a different import from, for instance, "if the tenant does not comply with an order" and in our view the Legislature, by using the language which it has intended to penalise defaults made wilfully and negligently by the tenants and not the defaults that might occur for reasons beyond their control. To give a common place example, if the tenant is travelling by a train which in normal routine should take him to his destination in time for making the deposit, as directed by the Controller, but the engine fails on the way and he is thus stranded with no other mode of communication, the default that would occur in the non‑payment of the deposit would certainly be for reasons beyond his control and thus condonable. But to entitle the tenant to a condonation it seems imperative that he must without any avoidable loss of time offer to make good the payment, explaining at the same time the circumstances for the delay. In the present case, however, even accepting the allegations of the appellant regarding his illness, we have no hesitation in holding that the default on his part was negligent if not wilful. If he had really fallen ill it should not have made him forget his obligation in respect of the case that he was fighting against the landlords to retain possession of the disputed premises and if he was prevented from attending the Court himself to deposit the arrears as directed by the Controller on the due date, he could easily have commissioned someone to do so. He could have easily got in touch with his counsel for the purpose. His recovery from illness almost coincided with the date when his defence was struck off by the Controller, and there is no explana tion why, when after recovery he had resumed his daily avocations, he did not approach the Rent Controller to submit to him the reasons for his default, with an offer to make good the payment of the arrears of rent. His belated attempt to deposit the arrears after he had filed his appeal is of no avail, as it was advisedly done to cover his default. We have not been able to discover why, in what circumstances, and under what provision of law had the Controller allowed him to make the deposit at that stage without any reference from the Court of the District Judge before whom the matter was at the time pending in appeal.

7. In view of this we are constrained to dismiss this appeal but we do not wish to make any order as to costs.

K. B. A. Appeal dismissed.

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