P L D 1977 Karachi 252 (PLP)

The question on which the appeal stood admitted is clear from the following portion of the admission order :‑ Learned counsel then sought permission to plead an objection which had not been raised in tine Courts below or before me. He produced for the first time the order of the Rent Controller for tentative deposit of rent and because the order directed the appellant to continue paying or depositing the current monthly rent", learned counsel stated that the order was illegal. This submission was supported by the observation in Kazi Muhammad v. Abdul Quddus (P L D 1965 Kar. 367). In view of this authority it is clear that the objection now raised is a question of law which arises directly from the record of the case. The arguments addressed before me at the bar are only in support of the ground on which the appeal was admitted. As the ground taken directs an attack on the tenative rent order under section 13(6) of the Ordinance passed on 31st July, 1963, it would be necessary to reproduce the same ;‑ "Parties present. The opponent is ordered to pay or deposit Rs. 989 as arrears of rent till July, 1963, in two (2) equal instalments payable before 5th August and 5th September, 1963, and continue paying or depositing the current monthly rent at the rate of Rs. 23 p.m. before the 5th of each month till the decision of the case." It is contended that the order violates the provisions of subsection (6) of section 13 of the Ordinance, inasmuch it directs the tenant to pay or deposit the rent, while the law requires the Rent Controller to give a direction of deposit of rent only ; and that it confers no authority upon him to direct payment of the rent. Relevant part of the subsection (6) of section 13 reads as follows : ‑‑ "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 (Now 15th day) of each month, the monthly rent due from him . . . . _" While relying upon the judgments of the Karachi Bench of the West Pakistan High Court reported as Ahsan Ali v. Jaffer Ali (P L D 1964 Kar. 418) and Khair Muhammad v. Abdul Qudus (P L D 1965 Kar. 367), Mr. Baluch, the learned counsel for the appellant, has contended that the provision is mandatory and penal in character and must be constructed very strictly. There is no doubt that the provision is mandatory in nature, inasmuch as the Rent Controller cannot proceed further, in the matter of an application under section 13, unless he has passed an order under subsection (6) thereof, or that he is bound to pass an order striking off the defence and of putting the landlord in possession in case of default of the order made thereunder. But to contend, on the basis of such provisions. that they are penal in nature may not be correct, In Togha Khan v. Muhammad Madani Abbas (P L D 1964 Pesh. 101) the view taken was that the objection of demanding future rent before a specified date is to ensure the payment of the rent to the landlord without having recourse to litigation and this being so, the provision in regard to deposit of future rent before a specified date is never intended to be penal. In Masood Hussain v. Muhammad Saeed Khan (P L D 1965 Lah.11) it is held that this provision deals with private rights and is meant for the benefit of the landlord and could be waived by him. On general principles too if a tenant does not wish to pay the arrears of rent he can vacate the premises. By such intend?ment of the law it cannot be claimed that any hardship is caused thereby. ?Their Lordships of the Supreme Court in Ghulam Muhammad Khan Lundkhur's case (P L D 1967 S C 530) have however looked at thin provision of the Ordinance from a different angle and have given the following as its objects, from which the nature of the provision can very well be ascertained "The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof p s sort not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co‑relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition)." To lose privilege upon failure to fulfil a certain condition is not the. same thing as being liable to a penalty upon commission of some act forbidden by statute. The test whether a law is penal is whether the wrong sought to be A redressed is a wrong to the public or a wrong to an individual. In the former case it would be penal but not always so in the later case. In Corpus Juris Secundum (82 C J S Statutes 389) the test for determining the penal nature of a statute is given in the following words : "Since the distinction between a remedial and penal statute necessarily lies in the fact that the latter is for the sole purpose of punishment and to deter others from offending in like manner, while a remedial statute is to adjust the rights of the parties as between themselves with respect to the wrong alleged, the true test is determining whether a statute is penal is whether the penalty is imposed for the punish?ment of a wrong to the public, or for the redress of an injury to the individual, although a statute may be considered as penal when the action is to enforce a penalty and a9 remedial when it is sought to enforce the remedy." Imposition of a fine, penalty or forfeiture renders a statute penal. It is correct that payment of such fine, penalty or forfeiture may not, per se, l render the remedy Civil, but the question to be asked in such cases would be if the penalty imposed is by way of compensation for the breach. If so the statute would be remedial and not penal. The Ordinance though primarily meant to restrict the eviction of tenants. from certain premises in urban areas, but it does provide safeguards for certain interests of the landlords as well. He is assured to be compensated with the possession of the demised premises if the tenant commits breach of his liability to pay rent during the pendency of a rent application. Such quick remedy is provided by subsection (6) of section 13 of the Ordinance. This provision is therefore, obviously remedial in nature and cannot be termed penal. In this view of the matter these provisions of the Ordinance may not be subjected to same strict construction as is the case with a penal statute. The only consideration here would be if the order of 31st July, 1963, was ambiguous to the extent as to create a misunderstanding in the mind of the: tenant regarding his liability to pay the rent of the premises. If the order is shown to be such it could be claimed that misunderstanding caused thereby was the reason of default. Nothing of that sort has been claimed in this case. The order is very clear and it was duly acted upon by the appellant when he paid first instalment of the arrears of rent. Even in the case of second instalment the amount was duly tried to be tendered through a cheque. But at the same time a request for presenting the cheque a week later was made. It was only when the cheque was dishonoured, having been presented earlier, that the landlord moved the Rent Controller to strike off the defence. In these circumstances there can be no grounds to contend that the order dated 31‑7‑1963 was ambiguous in any manner. The direction to pay or deposit the rent, has not confused the tenant. On the contrary it provided a choice to the tenant either to deposit the rent in Court or pay directly to the landlord. In any case it left no doubts in the mind of the tenant as to his liability as regards the payment of rent. The departure from the letter of the provisions of section 13(2), though not to be approved of, is not fatal enough to render the tentative rent order as illegal. The tenant cannot, therefore, be allowed to evade the consequences of the default committed by him. In these circumstances I find no force in this appeal, which is dismissed with costs throughout. The tenant shall place the landlord in possession of the disputed premises within a month from today. S. A. H. ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.