P L D 1962 (W (PLP)

4. Mr. Yahya Bakhtiar, the learned Advocate for the appellant, raised two-fold contentions before me, namely :- (i) that the appellant should have been given an oppor tunity by the Courts below to show that he had not committed default within the meaning of subsection (6) of section 13 of the Ordinance ; (ii) that the order dated the 14th November, 1961, was an illegal order and, therefore, it cannot be said that the appellant had committed any violation of the order dated 14-11-1961. I will consider these two contentions separately.

5. In order to appreciate the two contentions of the learned Advocate for the appellant it would be useful to reproduce subsection (6) of section 13 of the Ordinance. It runs as under :- " (6) In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approxi mately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, 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 taking any further proceeding, in the case. The Controller shall finally determine the amount of rcpt due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by tenant." It was intended that mere non-compliance to deposit the amount before the 5th day of each month does not amount to default. It was urged that a person would be said not to commit default if he is prevented to comply with the order passed by the Rent Controller to deposit the rent before the 5th of each month by some cause beyond his control. There is no doubt that the Legislature has used the word "default" in the ordinary sense. "Default" is defined in Stroud's Judicial Dictionary as under :- "Default would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather." I think the word "default" has been used by the Legislature in the sense that has been defined in Stroud's Dictionary. It cannot be said that the word "default" is redundant in sub section (6) of section 13 of the Ordinance. If the Legislature did not have the meaning defined in the Dictionary in its view it was not necessary to use the word `default' It would have been quite sufficient to say if the tenant does not comply with such an order instead of saying if the tenant makes default. Mr. Hanfi, the learned Advocate for the respondent, relied on the following cases :- (1) Muhammad Sharif and another v. Muhammad Sharif P L D 1960 Lah. 1015 and (2) Shams-ud-Din v. Soofi Abdul Rahman P L D 1961 B, J.

88. In support of the contention that the provision of sub section (6) of section 13 of the Ordinance relating to the non-payment of the rent before the 5th of each month is mandatory. The learned Controller, it was contended, has no option but to strike off the defence in case the respondent did not deposit the rent before the 5th of the month. I have gone through these cases. These cases are no authority as to the proposition when a person is said to commit default. This point was not agitated in these two cases. The meaning that I have put to default is more reasonable than what is being put by the learned Advocate for the respondent. If a person while coming in a bus to deposit the rent rneets with an accident and thereafter is prevented to come and deposit the rent cannot be said to have 'committed default because he was prevented to comply with the order by something beyond` his control. The intention of the Legislature could not be to penalise a tenant who is on his way to deposit the rent but meets with a serious accident. The Legislature in using the word `default', I believe, had these eventualities in its view. The question however remains whether the appellant had committed default within the meaning that i have put to the word default. There is nothing on the record of this case to indicate that the appellant had committed default within the meaning that I have put to the word `default'. He had not given any explanation whatsoever to show that he was prevented from complying with the order of the Court by some reason beyond his control. Mr. Bakhtiar however con tended that he was not given an opportunity to show that the appellant was prevented by some cause beyond his control. The question of giving an opportunity to the appellant to prove that he had not committed default does not arise. It was for the appellant when he knew that he had not deposited the amount within the time to make an application imme diately indicating the reasons which were beyond his control B to deposit the amount. It was not the duty of the Court to call upon the appellant to mention the circumstances which would exonerate him. To give the appellant an oppor tunity now to show that he was prevented by some cause beyond his control would be, most probably, to encourage him to invent a ground so as to bring his non-compliance within the meaning of the word `default'. If the appellant had at any stage given the grounds why he could not deposit the amount due for February within time I may perhaps have given him an opportunity to prove the same.

6. The next contention of Mr. Bakhtiar was that the order, dated the 14th November 1961 was an invalid order inasmuch as the amount of rent being disputed the Rent Controller was bound to fix the same. It is true that where the amount of rent is in dispute the Rent Controller should fix same before passing an order for the deposit of the same. In this case the learned Rent Controller passed an order on 14th November, 1961 to deposit the arrears of rent. The appellant did not contest before the Rent Controller that he (Rent Controller) did not comply with subsection (6) of section 13 of the Ordinance inasmuch as he did not determine the approximate amount payable by him. The appellant accepted the order of 14th November 1961 by depositing the arrears of rent. The non-compliance for which the defence was struck-off was not for non-payment of the past arrears of rent but for not depositing the rent due for February 1961 in time. The order, dated the 14th November 1961 can be split up into two parts, namely one relating to the past arrears of rent and the other for the future rent for each month. It is for the non-compliance of the latter part of the order that the appellant has been penalised.

7. For the reasons given above, I would dismiss the appeal but would make no order as to costs in the circum stances of the present case. The interim order is withdrawn. Mr. Yahya Bakhtiar, the learned Advocate for the appel lant prays for some time to vacate the shop. Mr. Hanfi, the learned Advocate for the respondent has no objection if I were to grant 3 months' time. It is understood that the appellant will comply with this order and vacate before the expiry of three months from today (31-8-1962). In the mean time, the appellant will go on paying the rent as before. If the appellant makes default in payment of rent he will be liable to ejectment forthwith. K. B. A./A. H. Appeal dismissed.