1992 PLP 1577 (MLD)

6. After remand Ch. Masood Akhtar Khan, Rent Controller, Rawalpindi by his order dated 1‑10‑1974 again struck off the appellant's defence, this time on the ground that the appellant, while his appeal was pending in the High Court, had committed several defaults in the payment of future monthly rent. The appellant appealed against the order, but his appeal was dismissed by Sh. Ijaz Nisar, District Judge, Rawalpindi by his order dated 8‑1‑1976. Against the order of the learned District Judge the appellant filed SA.O. No 49 of 1976 in the High Court. The appellant's second appeal was again accepted upon the view that he had merely contravened the condition upon which the High Court had passed an interim order in his favour staying the execution of decree Dassed against him. The interim order had been passed in the following terms: "As the appeal stands admitted the tenant not to be dispossessed if he continues depositing rent as ordered on 3‑2‑1971." It was observed in the order passed by the High Court dated 29‑6‑1976 accepting his second appeal that the interim order which the High Court had passed could not be regarded as having been passed under section 1. (f,) of the Rent Ordinance, and that for a failure to comply with the order, at the most the decree for ejectment could have been executed against the appellant and that his defence could not be struck off. In the result the orders passed by the District Judge as well as by the Rent Controller were set .aside and the case was once again remanded to the Rent Controller with the direction that he could only strike off the appellant's defence if he found that the order which he had passed under section 13(6) had, in any manner been violated by the tenant. The Rent Controller was also directed to decide the case in accordance with law before 31st of October, 1976. This ended the second round of litigation.

7. The Rent Controller thereafter allowed the parties to produce whatever evidence that they wanted to produce. On 8‑1‑1977, the respondent made a statement that the appellant had sent him rent for the month of January, 1.976 through a money order which had been presented to him on 16‑2‑1970, but which he had refused to receive. He also deposed that the money order had been sent on 11‑2‑1970 which had been returned to the appellant on 27‑2‑1970. On the same date the appellant's counsel made a statement that he did not want to produce any evidence and that he would only tender in evidence the money order coupon. The Rent Controller by his order dated 20‑1‑1977, in the present round of litigation, again struck off the appellant's defence on the finding that he had not complied with the order of deposit of rent passed under section 13(6) of the Rent Ordinance on 5‑2‑1970.

8. The appellant's case is that he did not make any wilful default. Rent for the month of January 1973 had to be deposited before 15‑2‑1970 and the appellant had sent a money order to the respondent on 11‑2‑1970 which had been returned to him on 22‑2‑1970. On 28‑2‑1970 which was a Saturday, he filled up the challan forms for depositing money in Court, and obtained the signatures of the Rent Controller. It is contended that since the signatures could not be obtained before 11 a.m. and it being a Saturday, the money could not be deposited on the same date. The next day, i.e.1‑3‑1970 being a Sunday, the rent was actually deposited on the next working day, i.e. 2‑3‑1970. It is submitted that the rent having been directly tendered to the landlord rind thereafter deposited in Court on the first opportunity, it could not be said that the appellant had no intention to complying with the Court's order. In these circumstances, it is ‑submitted that the appellant's default should not be regarded as being wilful.

9. The Rent Controller did not accept the appellant's explanation because he was of the view that at least on 28‑2‑1970 the appellant had no excuse for not depositing the rent in Court. Learned District Judge also was of the view that there was no explanation on record as to why the appellant had failed to deposit rent in Court between 27‑2‑1970 and 2‑3‑1970.

10. Learned counsel for the appellant submitted that a mere non -compliance with an order of deposit of rent is not necessarily to be visited with the penalty of striking off defence of a tenant. He relies on Ghulam Mohammad Khan Lundkhor v. Safdar Ali (PLD 1967 Supreme Court 530), wherein it is observed as follows:‑ "Now as to the meaning to be given to the word. `default' in subsection(6) of section 13 of the Ordinance this much can safely be said that it cannot possibly excuse non‑compliance which is avoidable. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to cause for which the defaulter is, in no way responsible." It is also observed in the same judgment as follows:‑ "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 failure due to some cause for which he is, in no way, responsible or which was beyond his control." It is submitted that the appellant had made his best efforts to pay the money to the respondent and as such no default should be presumed in this case.

11. Learned counsel has also placed reliance on Hashim Khan v. Ghulam Nabi and 7 others (1973 SCMR 112). In this case by an order passed under section 13(6.) the tenant had been directed to deposit arrears of rent before 15th July, 1966 and to deposit future monthly rent before 15th of each month till final disposal of the case. This order had been passed on 14th May 1966. According to this order rent for the month of May 1966 had to be deposited before the 15th of June 1966. However, it was on 14th July 1966 that the tenant had deposited the arrears as well as the future rent for the months of May and June 1966. The plea that the tenant took before the Supreme Court was that he himself could not‑ attend the Rent Controller's Court on account of illness, and that his counsel had informed him after examining the file that future rent as well as arrears had to be paid before 15th July 1966. The view which found favour with the Supreme Court was that the tenant's counsel had interpreted the order of the learned Rent Controller in his own light and had advised the appellant to deposit the entire rent, including that for May, 1966 before the 15th July 1966, and that the appellant had acted on the advice given to him by his counsel and that he was not to be penalised 'merely because the counsel's advice proceeded on a misinterpretation of the Rent Controller's order. The Supreme Court was of the view that it was a case of bona fide mistake on the counsel as well .as the tenant in constructing the order of the learned Rent Controller and that it was, therefore, not a case of wilful default.

12. The circumstances of the present case, however, are different. There is no evidence on record to suggest that the appellant or his counsel had misinterpreted the order of deposit. What is contended is that the appellant had every intention to pay the rent to the respondent and therefore his failure to deposit the money in Court in time should be condoned. The question is what was the cause of the appellant's failure to comply with the order, and whether it was avoidable?

13. It has been observed in Javaid Iqbal v. Muzaffar Khan (1976 SCMR 229) as follows:‑ "In this case, as rightly held by the High Court not only the counsel but the petitioner also was negligent in the prosecution of his defence in his failure to keep himself fully informed of the order passed by the Rent Controller, it cannot, therefore, be held that the default in the deposit of the monthly rent was unavoidable and beyond the control of the petitioner. Before us the learned counsel for the petitioner has relied on Saeedan Bibi v. Ali Hussain (1975 SCMR 261) and Hashim Khan v. Ghulam Nabi (1973 SCMR 112). Both these cases are to the effect that wrong and mistaken advice of the counsel should not be visited with the penal consequences on his client. Both these authorities are distinguishable and not applicable to the facts of this case in which there was no question of any wrong or negligent advice having been given by the counsel to the petitioner. In the instant case the petitioner is himself to be blamed for his failure to keep himself fully informed of the progress in his case and to prosecute it diligently."

14. In view of the observations made by the Supreme Court, I am of the view that the appellant had failed to keep himself informed as to whether he had to deposit money in Court or he had to despatch the same through a money order to the landlord. Although the appellant had been given an opportunity to explain his default he did not produce any evidence. There is nothing on record to show that the appellant or his counsel had misinterpreted the order of deposit of rent, as had happened in Hashim Khan's case. The order which the Rent Controller had passed on 5‑2‑1970 is very clear and there p is no ambiguity about it. There was no scope for misinterpreting this order. In the absence of any explanation by the appellant it has to be held that the appellant's failure to comply with the order of deposit of rent was on account of his negligence. It was his duty to keep himself informed as to what order had been passed in this case. There is no excuse for a failure to have gathered this information. Merely because he had no intention of withholding the rent from the respondent is not sufficient excuse for condoning the negligence he had displayed, in not being aware of what he had to do. In view of the above, there is no merit in this appeal which accordingly is dismissed. However, there shall be no order as to costs. A.A./M‑350/L Appeal dismissed.