2004 PLP 1266 (YLR)

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)

S. 13(6)

Default in payment of rent-- Non-compliance of tentative rent order-- Striking-off defence

Tenants had committed default in deposit of rent for three months and explanation offered by them for non-compliance of tentative order of Rent Controller, was not plausible-- Spirit of law was that if a person had acted wilfully in disobedience of order of Rent Controller, then tenant had to be visited with penalty of striking-off his defence, but if element of wilfulness was missing as a result of bona fide belief for which a reasonable or plausible explanation had been offered, then element of contumacious or deliberate disobedience of order would be found to be missing

Tenants having committed default in deposit of rent for three months, which default appeared to have been made wilfully, Rent Controller had rightly struck off defence of tenants under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 for violating the terms of direction contained in tentative order passed by Rent Controller. Sher Afgan Khattak for Petitioners. Mian Abdul Aziz Qureshi for Respondents. Date of hearing: 14th November, 2003. IJAZ-UL-HASSAN KHAN, J. Waris Hussain respondent herein, instituted an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), seeking ejectment of Niaz Muhammad and Khan Muhammad, petitioners herein, from suit shop, on the grounds of default in payment of rent since October, 1999, personal bona fide need and subletting by petitioner No. 1 in favour of petitioner No.2.

2. Mr. Abid Islam, learned Rent Controller, Peshawar, on 2-10-2002 passed tentative rent order directing the petitioners to deposit monthly rent i.e. Rs.500 in Court before the 15th of each month in future and arrears i.e. Rs.18,000 on 4-3-2003. The petitioners failed to deposit rent for the months of November, December, 2002 and January, 2003, which resulted in striking-off their defence vide order dated 24-3-2003. ' The petitioners, feeling aggrieved, filed an appeal which was dismissed by learned Additional District Judge, Peshawar by means of his order dated 16-6-2003.

3. Invoking Constitutional jurisdiction of this Court under Article 199, the petitioners have assailed the aforesaid orders of the forums below by way of filing instant writ petition.

4. Mr. Sher Afgan Khattak, Advocate, learned counsel for the petitioners contended that mere non compliance of the order under section 13(6) to make the payment before the 15th of every month would not in every case amount to default, it would depend upon the circumstances of each case. He submitted that the default was not intentional and in fact the petitioners were under the impression that the amount already deposited in Court also included the rent for the months of November, December, 2002 and January, 2003 and thus the learned Rent Controller had no justifiable reason to strike-off the defence of the petitioners and order their ejectment. To substantiate the plea, he placed reliance on Muhammad Ashaq and others v. Azizur Rehman and 2 others 1993 CLC 2293 Peshawar, Mst. Zubeda Begum v. Muhammad Zaheer 1999 CLC 917 Lahore and Mst. Shah Jehan v. Mst. Mukti PLD 1963 (W.P.) Karachi 777.

5. Mian Abdul Aziz Qureshi, Advocate for respondent No.1, on the contrary, controverted the arguments of his adversary and supported the impugned orders of the forums below.

6. In order to attract the provisions of section 13(6) of the Ordinance, the mere non-compliance of the order of Rent Controller would not necessarily call for striking-off the defence unless it is proved on record that the tenant acted negligently in not depositing the rent before the due date. In the instant case, the sole question requiring determination would be as to when a tenant can be said to have committed default within the meaning of section 13(6) of the Ordinance. Section 13(6) of the Ordinance lays down such an order (making payment before 15th of each month) then if he is the petitioner his application shall be dismissed summarily, and if he is the respondent his defence shall be struck-off and the landlord put into possession of the property without any further proceedings in the case.

7. 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 not, in any way, responsible or which was beyond his control. In every case of non-compliance a question arises as to whether default is avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows, that is, striking-off the defence. If the default is unavoidable then non-compliance is excusable in which case the Controller can condone non-performance of the direction. 1980 SCMR 298 and 2000 SCMR 1328. No doubt it is true that a tenant's defence cannot be struck-off due to his default in making compliance with the direction of the Controller unless the default is wilful but in the instant case we find that the petitioners have committed default in deposit of rent for the months of November, December, 2002 and January, 2003 and the explanation offered for non compliance is not plausible. The spirit of law is that if a person has acted wilfully in disobedience of the order of Rent Tribunal then he has to be visited with the penalty of striking-off his defence but if the element of wilfulness is missing as a result of bona fide belief for which a reasonable or plausible explanation has been offered then the element of contumacious or deliberate disobedience of the order will be found to be missing. In the present case the default appears to have been made wilfully and learned Rent Controller has rightly struck off the defence of the petitioners under section 13(6) of the Ordinance for violating the terms of direction contained in the tentative order of 2-10-2002. The case-law cited on behalf of the petitioners is distinguishable and proceeds on different facts. It is of no help to the petitioners.

8. In the result and for the foregoing reasons, finding no substance in this writ petition we dismiss the same with no order as to costs. H.B.T./28/P Petition dismissed.