P L D 1967 Lahore 957 (PLP)

This second appeal is directed against the order of the learned District Judge, Multan, dated the 3rd of October 1966 exercising the power of the Appellate Authority under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959, upholding the order of the learned Rent Controller dated the 7th of July 1966, for the ejectment of the appellant under section 13 (6) of the Ordinance for his failure to deposit arrears of rent by the appointed date.

2. Chaudhry Ghulam Nabi, Advocate, the respondent landlord applied for the ejectment of the appellant who is employed as Sub‑Divisional Officer, Public Works Department (Buildings and Roads) from Bungalow No. 11, Civil Lines, Khanewal, on the allegation that the latter had failed to pay rent for the months of March, April and May 1966, and that he himself required the bungalow for his personal residence. The appellant denied the relationship of landlord and tenant between himself and the respondent. He plead 9d that he occupied a part of the premises as a licensee under the Provincial Government who was the real tenant and that the other part was being used as P. W. D. office‑cum‑store. On merits, it was pleaded that the respondent contumaciously avoided acceptance of cheques issued by the department for the rent due and that therefore, there was no default in the payment of rent. Allegation as to the require?ment of the bungalow for the personal residence of the respondent was also denied.

3. By an interlocutory order dated the 30th of June 1966, the learned Rent Controller found that there subsisted the relationship of landlord and tenant between the parties, and therefore, directed the appellant to deposit Rs. 600 due as arrears of rent for the months of March, April and May 1966, before the 5th of July 1966, and to pay future rent before the 15th of each succeeding month. For the conclusion that the appellant was a tenant under the respondent‑landlord, the learned Rent Controller based himself on what he thought to be an admission in the appellant's written statement. When the case was taken up for hearing on the 7th of July 1966, it transpired that the appellant had actually deposited the arrears on the 5th of July 1966 and not on the preceding day which was the terminal date. Accordingly, the learned Rent Controller proceeded to strike off the appellant's defence and ordered his ejectment. However, he stayed the immediate execution of his order observing: "Since some public office is also housed there, the shifting of which will take sometime, 1, in the interest of justice; allow eleven weeks' time to the respondent to vacate and hand over possession of the property in question to the pet?itioner . . . . .? The first appeal to the Appellate Authority having failed, hence this second appeal.

4. The appellant's counsel raised the following two conten?tions in support of the appeal, namely: (i) that the finding of the learned Controller as the subsistence of relationship of landlord and tenant between the appellant and the respondent was contradictory because of the above finding that a part of the building was being used as a public office, and further that the appellant in his written statement merely admitted payment of rent on behalf of the Government and denied expressly the existence of relation? ship of landlord and tenant between himself and the respondent; (ii) that there was no default within the meaning of section 13(6) of the Ordinance and, therefore, the impugned order striking off the defence was bad in law.

5. As rightly pointed out by the learned counsel for the respondent, the appellant did not agitate the first ground in his appeal before the Appellate Authority and that being so it is not open to him to convass it in this second appeal.

6. As to the second ground, learned counsel for the appel?lant argued that the learned Rent Controller was wrong in holding that the appellant had committed a default within the meaning of section 13(6) of the Ordinance. It was contended that the appellant was ordered on 30th June 1966, to deposit arrears of rent before 5‑7‑

66. On 1‑7‑66 the appellant had the challan form signed by the learned Rent Controller. Courts and public offices were closed on 2‑7‑66 and 3‑7‑66 on account of Eid‑e?-Milad‑un‑Nabi and Sunday on 4‑7‑

66. However, owing to a discrepancy in the entry in the challan, the amount could not be deposited on 4‑7‑66 nor the discrepancy removed because the Presiding Officer was on leave on that day and the Nazir was not in his seat either. Thus, it was argued that the appellant was prevented by these fortuitous circumstances over which he had no control, from depositing the arrears of rent on the 4th of July 1966, and he deposited it on the following day. That according to the learned counsel was a proper compliance of the learned Rent Controller's order and, therefore, the appellant's defence could not have been validly struck off. In support of this argument learned counsel strongly relied upon a Single Bench case, Sayyed Toghan Shah v. Shah Muhammad Madni Abbas (P L D 1964 Pesh. 101) wherein it was held that the word "default" in section 13(6) means wilful default. The facts of the precedent case were closely parallel with the facts of the instant case in that that there was also a delay of one day in the deposit of the rent which the learned Single Judge found was due to the fact that the Treasury Officer was on leave on the terminal date and that the Head Clerk was also not in his seat on that date and, therefore, the deposit could not have been made till the date following the terminal date. In reaching that conclusion the learned Single Judge relied upon the two Division Bench Cases, Mst. Shahjehan v. Mst: Mukti (P L D 1963 Kar. 777) and Abaul Majid v. Saadullah and another (P L D 1963 Quetta 16). In each of the three precedent oases the word "default" following its definition in Stroud's Judicial Dictionary was interpreted‑ "to embrace every failure by the defendant to perform his duty unless prevented by superior force over which he had no control such as stress of weather." Accordingly it was argued that the appellant's failure to deposit arrears in the circumstances, set out above, will bring his case in the rule of law referred to above.

7. Learned counsel for the respondent did not quite dispute the proposition laid down in the above precedents. He, however, contended that there was no proof that the appellant was prevented by any supervening circumstances beyond his control to deposit the arrears of rent on the 4th of July 1966 and in any case both the Tribunals below found that there was no valid excuse which prevented the appellant from making the deposit within the due date and being essentially a question of fact, it cannot be con?vassed in second appeal. In support of his argument learned counsel relied upon Subban Ali v. Satbai (P L D 1964 Kar. 206) and Muhammad Shafi v. Allahdino (P L D 1966 Kar. 523). In both these cases it was held, that the question whether or not there was any default within the meaning of section 13(6) of the Ordinance was a question of fact which cannot be convassed in second appeal. In my opinion, the matter is not as simple as that.

8. From the records of the proceedings before the learned Rent Controller it appears that the appellant was allowed no opportu?nity, whatever, to substantiate his plea as to the circumstances which prevented him from depositing the arrears of rent by the due date. All that appears to have happened is that on the 7th of July 1966 when the case was taken up for hearing and it was pointed out to the learned Rent Controller that the arrears of rent were deposited on the 5th of July 1966 instead of 4th of July 1966, he immediately proceeded to order ejectment of the appellant by striking off his defence. While there can be no dispute as to the broad proposition 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 but to foreclose that question in second appeal, there must be a proper determination of that fact which is possible only when proper opportunity has been allowed to produce evidence in proof or disproof of the fact. In my opinion, the learned Rent Controller was under an obligation to allow a proper opportunity to the appellant to adduce evidence in proof of the circumstances which prevented him from making the deposit and also a similar opportunity to the respondent to meet the case set up by the appellant. That not having been done, the finding of the learned Rent Controller, although affirmed in appeal, suffers from "a substantial error or defect in pro?cedure" within the meaning of section 100(1)(c) of the Civil Procedure Code and, therefore, cannot be treated as binding in this second appeal.

9. Even otherwise, the order of the learned Rent Controller striking off the appellant's defence, in the circumstances of the case, appears to be oppressive. He allowed only four days to the appellant to deposit the arrears of rent of which two days were closed holidays. The learned Rent Controller was stated to be on leave and in his absence the Civil Nazir was not found in his seat and, therefore, the appellant deposited the amount on the 5th of July 1966. The appellant's affidavit filed with his appeal in this Court has gone absolutely unchallenged. The appellant was obliged to file the affidavit because he was allowed no opportunity to adduce evidence to show that he was prevented from depositing the arrears for reasons beyond his control. In the circumstances, the order of the learned Rent Controller striking off the defence of the appellant cannot be sustained. It can scarcely be controverted that the whole object of the provisions of section 13 (6) of the Ordinance is to ensure prompt payment of arrears of rent and furure rent to the landlord without recourse to litigation, it could never be the intention of the Legislature to make the provision of the section a vehicle of oppression against the tenant particularly when we bear in mind that the Ordinance, according to its preamble, was enacted "to restrict the increase of rent . . . . . and the eviction of tenants" from certain premises. On this view of the matter, therefore, the petitioner cannot, in the circumstances set out above, be held to have defaulted to comply with the learned Rent Controller's order, dated 30th June 1966.

10. For the foregoing reasons, therefore, I accept the appeal and set aside the orders of the two Tribunals below and remit the case to the learned Rent Controller for decision of the case in accordance with law, that is to say for the determination of the main pleas on the basis of which ejectment of the respondent is sought. The parties shall appear before the learned Rent Controller on the 15th of April 1967. In the circumstances of the case. I make no order as to costs. K. B. A.?????????????????????????????????????????????????????????????????????????????????????????????? ??????? Appeal accepted.