1980 PLP 680 (CLC)

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-- - S. 13(6) read with Civil Procedure code (V of 19081. O. XVIII, r. 2-Default-Contention regarding appellants being not given opportunity to adduce evidence to show default being not willful Such plea not raised into memorandum of appeal before First Appellate Court-Contention, held, of no F.ubstance.

7oghan Shah v. Muhammad Madani Abbas P L D 1964 Pesh. 101 and Muhammad Akram Shah v. Ghulam Nabi P L D 1967 Lah. 957 not applicable'].-.{Evidence]. Toghan Shah v. Muhammad Madani Abbas P L D 1964 Pesh. 101 and Muhammad Akram Shah v. Ghulam Nabi P L D 1961 Lah. 957 not applicable. Tanzilur Rahman for Appellant. Fazal Bhoy for Respondent. Date of hearing : 29th March, 1978. This second appeal under section 15(4) of the West Pakistan Rent Restriction Ordinance, 1959, by the Hamdard Laboratories (Waqf) Pakistan Ltd., is directed against the appellate decision of a learned Additional District Judge, Karachi, whereby he upheld the order of a learned Senior Civil Judge, Karachi, directing that the appellant's defence be struck oft for hovers committed default in payment of rent for the premises occupied by the appellants.

2. The admitted facts of the case are that the appellants are the tenant:, of the respondent in respect of the premises bearing No. 538/16, Jehangir Road, Karachi, since 1968, at a monthly rent of Rs.

600. Disputes having arisen between the parties, the respondent filed an application for the ejectment of the appellants on the grounds of default in the payment of rent and for unauthorised deduction of moneys from the rent for the alleged purpose of repairs to the premises. On 1-11-1974, the learned Rent Controller directed the appellants to deposit the arrears of rent and also to deposit future monthly rent before the 15th of the month following that for which rent was due. The rent for the month of March, 1975, was thus due by the 15th of April, 1975, but it was paid on the 14th of May, 1975. By reason of this late payment, the respondent, on 3-5-1975, made an application to the Rent Controller praying that the defence of the appellants be struck off, The appellants, in reply, submitted that the failure to deposit the rent to: the month of March in time was neither intentional nor wilful but was accidental and Son account of the fact that Mr. Anwarul Hasan Shaheed'., their previous Depot Incharge, who had been entrusted with the responsibility for the payment of the rent iii time, had been transferred and succeeded by Mr. Abdul Aziz Salar Zai on 1-4-1975, and since Mr. Zai was unaware of the litigation regarding the premises in question and the deposit by the appellants of the rent, consequently he failed to deposit the rent in .time and ultimately the rent was deposited by the appellants on receiving a letter from their Advocate on 12-5-1975.

3. The learned Rent Controller took the view that the failure on the part of the appellants to deposit the rent in time was not due to circumstances beyond the control of the appellants and was in fact a default as contemplated by the law. He, accordingly, struck off the defence of the appellants as prayed by the respondents. Aggrieved by this decision, the appellants preferred an appeal but the Ist Appellate Court confirmed the decision of the learners Rent Controller and dismissed the appeal. Dr. Tanzilur Rehman, the learned counsel for the appellants, has urged two grounds in support of the appeal, namely

(i) the omission on the part of the appellants to deposit refit by the due date is not a wilful default as contemplated by section 13(6) of the Ordinance in question, and (ii) that the Rent. Controller did not afford the appellants an opportunity to lead evidence to show the circumstances under which the non. payment of rent had occurred.

5. There is no doubt that mere omission to pay or to deposit rent within the prescribed period is not default so as to entail the serious penalties envisaged by section 13 of the Ordinance in question,, The question as to what amounts the question to `default' for the purposes of section 13 of the said Ordinance has been considered in numerous authorities and the law has now been settled by the decision of their Lordships of the Supreme Court in the case of Ghulaml Muhammad Khan Lundknor v. Safdar .fill (P L D 1967 S C 530), It was observed in that case by Hamoodur Rahman, J., (as he then was) that "the mo<

6. Dr. Tanzilur Rehman submitted that in certain cases an error on the part of an employee would exonerate the employer but he was unable to satisfy me that in the circumstances of the present case the appellants can really take the plea that negligence on the part of their employee to deposit the rent in time would not be deemed to be a default on their part. It may be pointed out that Mr. Zai took over from the previous Depot Keeper, Mr. Shaheedi, on 1-4-1975. The new Depot-Keeper thus had ample time to receive instructions regarding payment of the rent as also to actually deposit the rent. Dr. Tanzil-ur-Rehman relied upon two decisions wherein a default committed on the basis of mistaken advice tendered by a counsel was not considered to be a wilful default. In Hashim Khan v. Ghulam Nabi (1973 S C M R 112), the tenant was directed by the Rent Controller to deposit arrears of rent before the 15th of a particular month, but on the advice of his counsel, the tenant deposited the rent on the 15th of that month. It was held that the default by the tenant, in the circumstances, was not wilful and due to a bona fide error caused by the wrong advice of the learned Advocate. In Saeedan Bibi v. Ali Hussain (1975 S C M R 261), the tenant was directed to deposit arrears of rent in 4 equal instalments. However, due to the mistaken advice of his counsel, the first instalment was short deposited by the tenant. It was held that the tenant could not be penalised for acting bona fide on the mistaken advice of his counsel. In the circumstances of the case, the delay was condoned and the order striking out the defence was set aside. These two rulings upon which Dr. Tanzilur Rehman has relied do not further his case as the default in the instant case was committed by the appellants whom they failed to give instructions in time and was not due to any bona fide mistake or error in consequence of the wrong advice of an Advocate,

7. I am also unable to find any substance in the second contention of Dr. Tanzilur Rehman that the decisions of the two Courts below are liable to be set aside as the appellants were not given an opportunity to adduce evidence to show that the omission to pay in time was not wilful. The appellants, as already pointed out, had filed objections to the application for striking off their defence. In that application the only plea raised by them was that the omission to deposit rent in time was on account of the transfer of the employee entrusted with the duty of paying the rent. This circumstance, as already pointed out, does not in any way indicate that the default was on account of circumstances beyond the control of the appellants, I may also point out that in the menu of appeal filed before the Ist Appellate Court no plea has been raised by the appellants that they were not afforded any opportunity of showing that the default in the payment of rent was not wilful. 1n the circumstances, the decisions relied upon by Dr. Tanzilur Rehman in support of this limb of his argument, reported in P L D 1964 Pesh. 101 and P L D 1967 Lah. 957 are of no assistance to the appellants.

8. For the reasons stated by me above, I am of the opinion that there is no merit in this appeal. I accordingly dismiss the same with costs. The appellants are given two months time from the date of this order for handing over vacant possession of the premises in question to the respondent. K. M. A. Appeal dismissed.