P L D 1978 Lahore 258 (PLP)

This is tenant's second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance, 1959. His defence has been struck off under section 13(6) of the Ordinance, for failure to deposit the rent as directed under the said provision.

2. The facts relevant for disposal of this appeal briefly stated are that during the proceedings for eviction of the appellant the learned Rent Controller vide his order dated 4-2-1975 directed him "to deposit the arrears of rent from December 19'73 to January 19:5 at the rate of Rs. 400 pea month including Rs. 100 being balance for November 1973 ". before 6-3-1973 and the then current/future rent was directed to lie deposited before 15th of each succeeding month. This order, it is not disputed, was complied with till 4-2-1976 when the respondents eviction application was dismissed. An appeal against the learned Controller's order was allowed on 9-6-1976 and the case was remanded for fresh decision on merits. However, before the retrial could he held the respondent / landlord made an application under section 13(6) for striking off of the defence of the appellant on the ground that the said provision had not been complied with during the period commencing from January 1976. The appellant's plea was that the entire rent for the so-called default period was tendered in advance to the respondent through mosey orders, therefore, there was no default as envisaged by section 13(6). This plea did not find favour with the learned Controller nor in the first appeal, therefore, the appellant moved this second appeal.

3. The appellant has produced the original money order coupons, which show that the rent in question was tendered from March 1976, through money orders to the respondent each month in advance. There appears to be a wrong calculation on the Photostat copies of the money-order coupons submitted from the respondent's side but it is agreed that if the wrong calculation is excluded and the actual admitted facts relating to the sending of the various amounts through money-orders use kept in view, the rent used to be tendered to the landlord in advance. There is some factual controversy as to who made the wrong calculation. The appellant has accused the respondent while the learned counsel for the respondent has put the blame on the ' appellant and/or his agent. It is not necessary to resolve that controversy because mere wrong calculation by cry of the parties would not deprive them of their respective rights in so far as the factual position of tender of rent is concerned. I, therefore, hold that the rent was tendered by the appellant for the disputed period in advance. 4, It maybe submitted here that during the pendency of first appeal In the first round, for some monks (for example January and February 1976), the rent was not tendered its advance but there being no independent appellate order under section 13(6), tire appellant was permitted by law to deposit the rent within a reasonable time after the Disposal of the appeal. The argument oft' ,e learned counsel for the appellant that even thereafter the appellant was riot bound to comply with the original order passed by the. learned Rent Controllers on 4.2-1975 as according to him the same had not revived, was found untenable and the same was repelled in the admitting order dated 9-3-1977, which may be read as part of this order.

5. On established facts discussed above, namely, that the appellant instead of "depositing" the rent with the Rent Controller "tendered" the 'A same to the landlord before 15th of every month, the legal issue that is to be resolved can be formulated as follows : Whether tender of rent directly to the landlord instead of deposit with the Rent Controller would amount to compliance with an order under section 13(f) notwithstanding the fact the tender was of the due amount and before the specified date.

6. The answer would depend upon the circumstances of each case. If, for example, despite the order or the Rent Controller for deposit, without any justifiable excuse, the tender is made to the landlord with a hope to gain an advantage on refusal of the landlord, that might not be considered as compliance of the legal requirement. But in another case, instead of making a deposit with the Rent Controller, a bona fide deposit in wrong forum might be considered as valid. See Sarfraz Khan v. Muhammad Abdul Rauf (P L D 1969 Kar. 176). Similarly reliance on an earlier undisputed deposit with the landlord himself, instead of making fresh depot, might be considered as a good plea against the very order of deposit, under section 13(6). See Mian Muhammad Abdullah v. Sheikh Nawab Din (1971 S C M R 336) In yet another case, for example, notwithstanding there being an order of deposit with the Rent Controller the parties agree on arrangement of tender and its acceptance out of Court, it would be doubtful whether the landlord would be able, subsequently to invoke section 13(6) for striking off the defence of the tenant. See Syed Massood Hussain and others v. Muhammad Saeed Ahan and -others (P L D 1965 Lah.

11. And if in a case the Rent Controller himself, instead of directing "deposit", orders for the "payment" as at, alternative, to the "deposit", the payment, instead of deposit, might not be considered as non-compliance with section 13(6). See Zahurul Hassan & Brothers v. Abdul Hussain and another (P L D 1977 Kar. 252).

7. The above visualized examples, it is emphasizes, would not operate as precedent for deciding similar questions when they again arise. The questions being complex, it is essential to keep in mind that each case' would depend upon its own facts and circumstances.

8. Coming to the present case, no doubt on remand by the appellate Court in first round, the direction for deposit of rent, did revive but it cannot be ignored that the revival crowd be deemed to have taken place can or after 15-6-1976 when the parties were required to appear before the learned Controller. The landlord submitted the application for striking off o: the. defence for the first time on 19-7-1976. Earlier thereto for several months, during the pendency of the appeal, the rent was being tendered to him through money-orders. One such tender was sent to hire on 10-6-1976, i.e, a day after the acceptance of the appeal. No objection was raised on a 15-6-1976 from his side when counsel for both the parties bad in fart appeared before the learned Controller. A similar other money-order was sent to the landlord on 15-7-1976 where after he made the application on 19-7-1976 for action under section 13(6). During the intervening period the parties had started contest on merits in pursuance of the remand order. This is not all. Even in the application dated 19-7-1976 it was complained from the respondent's side that the appellant bad neither paid the rent to him nor was it deposited with the Controller. The first-mentioned complaint shows that at that stage direct 'payment' to landlord, as distinguished from 'deposit' with the Controller, was not treated as invalid. This might be due to the influence of atmosphere of compromise and adjustment as a result of which the appellate Court had remanded the case on statements of the parties for acceptance of the appeal.

9. It is a fact that no fresh order for deposit of rent was made by the appellate Court during the pendency of the appeal and the appellant had been tendering the rent directly to the landlord during this period. No doubt, on remand the order dated 4-2-1975 passed by the Rent Controller for deposit had revived but this revival would carry certain implications. If this revival was to be notionally deemed as enuring for the benefit of the landlord for post appellate period, the Rent Controller should have alongwith the assumed revival, passed an order dealing with the intervening appellate period ; because that would not be covered by this revival. And had it been done, the learned Rent Controller was bound to give adjustment to the appellant for rent directly tendered to the landlord during the appellate period. If he would have done so with a speaking order, he would have certainly clarified and or passed the order with regard to the practice the appellant bad followed by then of tendering the rent to the landlord. If it was wrong and unacceptable to the landlord/the Controller, the correction would have been made, but nothing was done on these lines.

10. In the above facts and circumstances another very important question arises whether the failure of the appellant to "deposit" the rent with 'the Controller' when he duly tendered the same to 'tie landlord'. would be C deemed to be a default as envisaged in subsection (6) of section 13, namely. "if the tenant makes default in the compliance of such an order, then ...........his defence shall be struck off ..........." The word "default" has not been defined in the Rent Restriction Ordinance. Its dictionary meanings carry an essential element of fault, defect and neglect of duty. Failure simpliciter without any such implication of the fault, by itself may not be treated in the given circumstances as a "default". In this case the foregoing discussion shows that the appellant did not commit any default by tendering the rent to the landlord instead of depositing it with the Controller.

11. It is important to note that the failure in this case is not with regard to the essential conditions specified in the provision of section 13(6), namely : (i) parting with the money for the benefit of the landlord ; and (ii) before the specified date. This case would be distinguishable from ail those cases where either of the two essential requirements are contravened by the tenant without any cause beyond his control and or an unavoidable circumstance. The failure qua the unessential conditions, namely, deposit with the Controller as distinguished from payment/render to the landlord, is not such which on general principles should be treated as a default as envisaged by law.

12. Learned counsel for the respondent argued that the foregoing interpretation of the expressions 'making of the default' and 'in compliance of would not be justified because such meaning could be given only if there would have been an explanation to subsection (6) of section 13, as there is an explanation (Explanation (b)) to clause (i) of subsection (2) of section

13. Section 13(2)(i) provides that a tenant who has not "paid" or "tendered" rent due by him within specified period, would be liable to ejectment. The explanation relied upon provides that the rent remitted by money-order to the landlord or deposited in the office of the Controller would be deemed to have been duly tendered. In other words. by virtue of the explanation, the deposit with the Controller and remittance through money-order to the landlord and/or direct payment to him, all have been treated as performance of the obligation by the tenant regarding payment of rent. The precise argument is that if the Legislature wanted to make similar provisions with regard to the compliance of an order under subsection (6) of section 13, a parallel explanation could have been added. Firstly, the expressions used in subsection (6) of section 13, like 'making of default' and 'compliance of an order' as compares with tender of rent' are not such for which normally explanatory provisions might be needed. Secondly, the Legislature would be presumed to have known the ordinary connotation of default and compliance. Here it cannot be ignored that "compliance" in general connotation has various shades. Some might be treated as due compliance and others as something less than compliance. Thirdly the Legislature is not supposed (nor it is the practice) to provide for each and every situation and eventuality which the Courts face in different types of cases. The Courts are supposed to supply the details through common sense and general principles of natural law. In Domat's Civil Law, Chapter XII, section 17, page 88, it is observed as follows ,- "Since laws are general rules they cannot regulate the time to come, so as to make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. It is the duty of the law-giver to foresee only the most natural and ordinary events, and to form his dispositions in such a manner that, without entering into the details of singular cases, be may establish rules applicable to them all and next, it 1s the duty of the Judges to apply laws not only to what appears to be regulated by their express dispositions but to all cases to which a just application of them may be made, and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it."

13. In the light of the above discussion it is not necessary to assume that failure of the Legislature to provide an explanation under subsection (6) on lines parallel to Explanation (b) to section 13(1)(,) necessarily implied failure simpliciter on an unessential element as default in the compliance of an order under section 13(6). Here it is interesting to note that if the reasoning of the learned counsel was to be carried to its logical end then, keeping in view the order passed by the learned Rent Controller on 4-2-1975 it did not require the appellant to make the deposit with the Rent Controller. It simply required him to deposit the rent without specification of office, place or person with whom to deposit. Thus looked at from whatever angle the argument of the learned counsel has no force.

14. In the light of the foregoing discussion it is held that the appellant did not make default in the compliance of the order of the learned Rent Controller passed on 4-2-1975, therefore, the defence could not be struck off. Consequently, this appeal is allowed. Both the impugned orders are set aside and the case is remanded to the learned Rent Controller for further proceedings in accordance with law. There shill be no order as to costs.

15. The parties shall appear before the learned Rent Controller on 29-10-1977. It is an old case. The learned Rent Controller shall try to decide the matter within two months. S. Q. Appeal allowed.