1985 (PLP)

This first rent appeal has been filed against the order of learned IInd Senior Civil Judge and Rent Controller, Hyderabad, dated 21-7-1985 whereby he struck off the defence of the appellants and ordered them to vacate the premises within two months from the date of order.

2. The facts of the case in brief are, that the appellants are the tenants of the respondent in respect of the demised premises at a monthly rent of Rs.300, vide an agreement, dated 13-4-1983. The respondent filed rent application No. 329 for ejectment against the appellants on the ground of default in payment of rent. On the application of, the respondent, the learned Rent Controller ordered the appellant to deposit rent in Court. The appellant failed to deposit the rent for the months of November, and December, 1984 and January, 1985 within the time specified in the order by the learned Rent Controller. The respondent moved application under 16(2) of the Sind Rented Premises Ordinance, 1979 to strike off the defence of the appellants. The learned Rent Controller after hearing the parties passed the impugned order.

3. I have heard learned counsel for the appellants at length. It is not denied, that the appellants did not deposit the rent for the months in question, within the date specified in order of the Rent Controller. However learned counsel has taken two pleas, firstly that the learned Rent Controller failed to frame preliminary issue on the objection raised by the appellant, that the attorney, through whom the rent application was filed, had no proper power-of-attorney. Secondly, that there was only technical default, as the rent could not be deposited in time, due to late receipt of the sanction from the head office at Lahore.

4. In support of the first objection raised by the appellants the learned counsel for the appellants has relied upon P L D 1964 Lah. 648 wherein it is held:- "The provision contained in Order III of the Civil Procedure Code 1908, can be pressed into service in cases arising under West Pakistan Urban Rent Restriction Ordinance, 1959. A respondent can always allege that a petition signed and presented by an authorised person for relief under the Ordinance not valid by reason of the petition not having been instituted with the approval and authority of petitioner. It is the duty of the Rent Controller to decide this question. Where an abjection to the validity of power-of-attorney is taken it is for the petitioner to have proved that it has been validly executed. The Rent Controller under the circumstances, cannot order the ejectment unless this matter has been decided by him."

5. However in a recent ruling of the Supreme Court reported in PLD 1985 S C

148. It is laid down:- "Thus all the law requires is that each party should be afforded a proper opportunity of putting forth its case before orders are passed in an ejectment application. Any attempt to import any particular procedure such as that prescribed in the Civil Procedure Code or in any other law and to insist on its meticulous adherence it totally alien to the intention of this statute. In fact, the Controller in discharging many of his functions is not required to act judicially but he acts at best in a quasi-judicial capacity."

6. It may be pointed that Sind Rented Premises Ordinance, 1979 is special law and the procedure to be followed is specified in section 19 of the said Ordinance. Subsection (5) of the said section provides:- "(5) The Controller shall, instead of formally framing issues arising between the parties, state them briefly in the judgment and shall record findings on each such issue separately".

7. Thus, it was not necessary that he should have framed the preliminary issue. However in his impugned order he has given findings on this plea raised by the appellant. The learned Rent Controller which A discussing the objection raised by the appellant has observed that no such plea was taken at the time when the order of deposit of rent was passed on 18-12-1984 which in fact was passed with the consent of the learned counsel of the appellants. He has further observed, that photostat copy of power-of-attorney filed by the applicant's (respondents) attorney clearly showed, that attorney was empowered to sign and verify the rent application. In such circumstances, the learned Rent Controller held application, which was for framing preliminary issue, merited no consideration and was disposed of as such.

8. Even if no preliminary issue was framed by the learned Rent Controller, the plea raised by the appellant was considered and decided 6 by him in the impugned order. Under the circumstances no illegality has been committed by the learned Rent Controller in not framing the preliminary issue.

9. The fact that default was committed is not disputed but it is contended that delay in depositing the rent was for the reasons beyond the control of the appellants, because sanction was not received in time from the head office at Lahore. It will be seen, that appellant is not the Chairman of WAPDA, who has headquarters at Lahore and even the head office at Lahore from where sanction was to be received is also under his control. Therefore it is fallacious to accept that head office at Lahore is beyond the control of appellant No. i. Besides no ` person or Government Department can claim any preferential treatment under the law. I am in full agreement with the law. Laid down in 1982 C L C (Kar.) 1166, that no special or different treatment can be given to a Government Department and compared to ordinary tenant as no such distinction is made in the rent law.

10. The wording of relevant provision of law which is section 16(2) of Sind Rented Premises Ordinance, 1979, which corresponds to section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 makes it mandatory for the Rent Controller to strike off the defence of D the tenant, where he fails to deposit arrears of rent as ordered by the Rent Controller. Reliance in this respect is placed P L D 1960 Lah. 1112 and P L D 1981 Kar. 739.

11. The learned counsel for the appellant has relied upon P L D' 1963 Kar. 777 wherein his Lordship have discussed the meaning of l word default. As defined in Stroud's Judicial Dictionary the default would seem to embrace every failure by the defendant to perform his contract, unless prevented by superior force over which he has no control as stressing weather. I woul.1 hold that mere non-compliance off order would not in every case amount to default. It would depend upon the circumstances of each case, whether payment has been made because of some superior force over which the tenant had no control. As already pointed out the appellants have failed to show, that default was for reasons beyond their control.

12. There appears to be absolutely no merit in this appeal which has been dismissed in limine by a short order, dated 18-9-1985,

13. The appellants to hand over the peaceful possession of the premises to the respondent within one month of this order. A. A. Appeal dismissed.