1994 PLP 331 (CLC)

6. Before proceeding further, it may be clarified that even though the respondents in their application for striking off the petitioner's defence as also the learned. Additional District Judge in his impugned order referred to the months of August and September, 1985, in the context of the alleged default, the case was argued before me on the premises that the default complained of related only to the month of August, 1985. In fact, the Rent Controller in his impugned order also held that the rent for the month of August, 1985, was not paid within time. It is not in dispute that the rent for the month of September was due for deposit in the month of October.

7. I have heard the learned counsel for the parties. It is an admitted position that the petitioner was required to deposit the rent for the mouth of August, 1985, before 15th of September, 1985, but the deposit was, in fact, made on the 15th of September i.e. with a delay of one day. It cannot, therefore, be disputed that there was non‑compliance of the order for deposit of rent made by the Rent Controller under section 13(6) of the Ordinance. Learned counsel for the petitioner, however, contended that the penalty envisaged in the later part of section 13(6) for striking off the defence of the defaulting tenant can be applied only to those cases where non‑compliance of the order for deposit of rent is wilful. According to the learned counsel, the word `default' in section 13(6) of the Ordinance has been interpreted in various decisions and it has been held that the Legislature intended to penalise the defaults made wilfully and negligently and not those which might occur for reasons beyond the control of the tenant. Reference in this connection was particularly made to‑‑ (1)??????? Abdul Majid v. Saadull h and another (PLD 1963 (W.P) Quetta 16 and (2)??????? Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 S.C. 530). In the Quetta case it was observed that "the word `default' as used in the context of sub‑section (6) of section 13 of the Ordinance bears the connotation 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". In the case of Ghulam Muhammad Khan Lundkhor (supra), Supreme Court of Pakistan while examining the meaning to be given to the word `default' in subsection (6) of section 13 of the Ordinance held‑‑ "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 a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word `default' should mean an act done in breach of a duty or indisregard of an order or direction."

8. Proceeding on the aforenoted premises, learned counsel for the petitioner argued that the learned Courts below acted illegally in striking off the petitioner's defence without holding that he had committed the default wilfully. According to the learned counsel, in the absence of such a finding, the petitioner's defence could not have been struck off. It was next contended by the learned counsel that the petitioner having explained the circumstances in his written reply which prevented him from depositing the rent before 15th of September, it was the duty of the Rent Controller to have examined the petitioner's plea in depth and then recorded the finding as to the default of the petitioner. In support of this submission, learned counsel relied upon‑‑ (1)??????? Syed Muhammad Akram Shah v. Ch. Ghulam Nabi (PLD 1967 Lahore 957) and (2)??????? Muhammad Ibrahim v. Ghulam Nabi and another (PLD 1980 Lahore 619). In the first‑mentioned case, the view taken was that the question whether or not there has been any default within the meaning of section 13(6) of the Ordinance is a question of fact which must be properly determined and the Rent Controller is under an obligation to allow proper opportunity to the tenant to adduce evidence in proof of the circumstances which prevented him from making the deposit and also a similar opportunity to the landlord to meet the case set up by the tenant. In the precedent case, this was not done by the Rent Controller and, therefore, it was held that the finding of the two Courts below was not binding in second appeal. In the case of Muhammad Ibrahim (supra) also, it was observed that if the tenant gives some explanation for his failure to deposit rent within time, the Rent Controller is bound to consider it and in case he, prima facie,. feels that the explanation has some substance, he will decide the controversy after framing issues and receiving evidence.

9. Learned counsel appearing for the respondents/landlords was unable to dispute the proposition that the defence of a tenant can be struck off only when he is shown to have committed the default wilfully or negligently or conversely, his defence is not liable to be struck off if he satisfies the Rent Controller that his failure to comply with the order for deposit of rent was due to unavoidable circumstances or for reasons beyond his control. Learned counsel, however, sought to justify the impugned order by contending that even if it be accepted that the petitioner, as alleged by him, had become seriously ill on 12‑9‑1985, remained hospitalised and was thus unable to deposit the rent before the prescribed date, he could well have deputed some one to make the deposit before due date. His failure to do so, showed that the default on his part was negligent if not wilful. Learned counsel referred to Muhammad Yaqoob v. Muhammad Sharif and another (PLD 1982 Quetta 129) wherein an observation made in the case of Abdul Majid v. Saadullah and another (supra) was quoted to the effect that if the tenant had really fallen ill and was prevented from attending the Court himself to deposit the arrears on the due date, he could easily commission some one to do so or get in touch with his counsel for that purpose.

10. The legal position which clearly emerges from the aforenoted cases relied upon by the learned counsel for the petitioner is that it is not any and every non‑compliance with the order for deposit of rent that must necessarily be visited with the penalty of striking off the defence of the defaulting tenant. The defence of a tenant can be struck off only if he commits default in the deposit of rent wilfully or negligently. If the tenant comes up with some explanation for his failure to deposit the rent within the specified time, the Rent Controller is under an obligation to duly consider such explanation and properly determine whether the default was committed by the tenant wilfully/negligently or he was prevented from complying with the order for deposit of rent for reasons beyond his control.

11. In the instant case, the tenant/petitioner, as noted in para 3 above, took a definite plea in his written reply that he could not deposit the rent on the due date as he had suddenly fallen seriously ill and was hospitalized and as soon as he recovered a little and came to senses on 15th September, he got the rent for the month of August and even of September deposited on the same day. The precise words used by the tenant in his written reply were as follows:‑‑ A perusal of the impugned orders quite clearly shows that neither the Rent Controller nor the Additional District Judge examined the petitioner's explanation/plea on merits with the result that they gave no finding on the crucial question as to whether the default of the petitioner was wilful or negligent. It appears that the learned Courts below were not informed of the correct meaning of the word "default" in section 13(6) as interpreted by. the superior Courts and they proceeded on an erroneous assumption that in case of non‑deposit of rent on the due date, the defence of a tenant has got to be struck off without considering whether the default was wilful or not. The impugned orders thus suffered from an illegality apparent :on the face of the record.

12. As regards the contention of the learned counsel for the respondents/landlords that the petitioner could have deputed some one else for depositing the rent on the due date if he himself was unable to do so, suffice it to observe that it was for the Rent Controller to have examined/dealt with this aspect of the matter keeping in view the nature of the ailment and the degree of physical/mental incapacity, if any, resulting therefrom. This exercise which might entail a factual inquiry cannot be undertaken by this Court, when examining the validity of the impugned orders in its Constitutional jurisdiction. Since the learned Courts below have neither examined on merits the plea/explanation of the petitioner set forth in his written reply nor determined whether the default on the part of the petitioner was wilful or was due to the circumstances beyond his control, the impugned orders clearly suffer from jurisdictional defect.

13. Upshot of the above discussion is that the writ petition is allowed, the impugned orders of the Courts below are declared to be without lawful authority. and of no legal effect and the case is remanded to the Rent Controller with direction that he shall pass fresh order after duly examining/considering the petitioner's plea/explanation set out in his written reply. The Rent Controller shall, of course, ascertain whether the petitioner's alleged ailment was such as incapacitated/prevented him from making the deposit himself or even from deputing/directing some one else to make the deposit on 15th September, 1985. The Rent Controller may, if need be, hold necessary inquiry. He shall in any case decide the matter finally within a period of three months. No order as to costs. H.B.T./M‑1163/L??????????????????????????????????????????????????????????????????????????????? Petition allowed.