981 PLP 326 (SCMR)

DORAB PATEL, J.-The dispute in these two appeals relates to two shops in Nankana Sahib, which are both owned by the respondents, who had obtained them from the transferee from the Settlement Department. On the allegation that the appellants had committed persistent default in the payment of rent, the respondents and/or their predecessors-in-interest filed eviction applications against them in the Court of the Rent Controller, Nankana Sahib. The appellants contested their eviction and both of them pointed out that the shops were originally evacuee property and that the notice served on them under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958) (hereinafter called the said Act), was bad. Without examining this objection, the Rent Controller passed an identical order in both cases on 26-3-1974. This order reads:- "The respondent has clearly defaulted in submitting the rent for the month of February, 1974. In the light of section 13(6) of the Urban Rent Restriction Ordinance defence of the respondent is hereby struck off and he is directed to hand over the vacant possession of the disputed shop to the applicants forthwith." The appellants challenged this order unsuccessfully in an appeal in the District Court and then in the High Court. They then filed petitions for leave in this Court and leave was granted in order to examine their contention that they were entitled, in the events that happened, to the protection of section 30 of the said Act. Mr. Shaukat Ali appeared before us today in both the appeals and in addition to the objection for the examination of which leave had been granted he advanced with our permission another objection. This was that the Rent Controller's order striking off the defence of the appellants was illegal, because it had been passed without notice to them and without hearing them. We were astounded by this submission, therefore, we asked Mr., Zafar Pasha to show us a copy of the application of the respondents for striking off the defence of the appellants on the ground that they had committed default in the payment of rent for the month of February, 1974, as held by the Courts below. Mr. Zafar Pasha stated that the respondents had not filed any application for striking off the defence of the appellants. However, as the record had been summoned, we insisted that the learned counsel should examine the record before we accepted his statement as it was possible to forget matters, which had happened long ago. After examining the record, Mr. Zafar Pasha again stated that no application for striking off the defence of the appellants had been filed. Further, we were shocked to find that there was no entry in the order sheet of the Rent Controller after 26-9-1973. Therefore, it is a mystery to us that how the Rent Controller, suo mot struck off the defence of the appellants. We quoted this order and as it does not even refer to the presence of the parties or of their learned counsel, in the circumstances discussed, we are satisfied that the defence of the appellants was struck off arbitrarily by the Rent Controller without giving them a hearing and without even giving them a notice of the allegations that they had committed default, in the payment of rent. It is, therefore, very clear that the order for the eviction of the appellants is patently illegal and has to be set aside. We are aware that leave was not granted to examine this objection, but it goes to the root of the matter, and we can only express our very great regret that any Civil Judge, should have acted in the manner in which the Civil Judge, Nankana Sahib has acted. Mr. Zafar Pasha feebly attempted to submit that the Rent Controller's order was not illegal, because the appellants had no right to be heard, as they had been in default in the payment of rent of February, 1974, and they were in default as the rent of February, had been deposited after 14th March, 1974. And, learned counsel thought that this extraordinary plea was supported by the fact that subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, under which the defence of the appellants had been struck off, did not in terms confer a right of hearing on the tenant. It is true that this subsection does not contain express provision that a tenant is to be heard before his defence is struck off. But, a tenant's defence can be struck off only if he commits default in the deposit of rent, and as observed by Hamoodur Rehman, J. (as be then was) in Ghulam Muhammad Khan v. Safdar Ali (PLD1967 SC 530). 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 tae is in no way, responsible or that 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 in disregard of an order or direction." We respectfully agree with these observations. This means that a tenant's defence cannot be struck off merely because he has failed to deposit the rent. And, the question whether a failure to deposit rent amounts to default or not, cannot possibly be decided by any Rent Controller without hearing the tenant. Therefore, the orders of the Rent Controller in the instant case are a naked usurpation of power and are struck down, and, therefore, the appeal is allowed and the cases are remanded to the Rent Controller for hearing. Mr. Zafar Pasha was apprehensive about delays in the hearing of the rent case, so are we, and as learned counsel fully agreed that the rent cases of the respondents should be remanded to the Rent Controller, should be fixed for evidence forthwith and for arguments thereafter, Mr. Shaukat Alt also gave an undertaking on behalf of the appellants that the appellants would not raise as a preliminary issue any legal objections whatever and that all such objections would be advanced after evidence had been recorded. The undertaking is very fair. In the result, we allow the appeals, set aside the orders of the three Courts below, remand both the cases to the Rent Controller, who will forthwith proceed to take evidence in the eviction cases and will give his judgment in both the cases before the 30th of June, 1981. Appeal allowed.