1990 PLP 2012 (CLC)

3. The appellant failed to deposit the rent for the month of March 1989, and consequently an application under section 16 (2) of the Sindh Rented Premises Ordinance, 1979, was moved for striking off her defence. This application was controverted by the appellant mainly on the ground that the default in deposit of rent was not intentional, as due to illness she was prevented from depositing the rent in time. After hearing the parties, the learned Rent Controller struck off the defence of the appellant. This order dated 28‑5‑1989 is the subject‑matter of this appeal.

4. I have heard Mr. Abdul Fateh Malik, learned counsel for appellant and Mr. Sardar Khan Lashari, learned counsel for respondent.

5. The fact that the appellant committed default in deposit of rent for the month of March, 1989 by about one month is not in dispute. She, however, pleaded that on account of illness she was unable to do so. A medical certificate dated 11th April, 1989 is placed on record to show that the appellant was ill from 29th March, 1989 to 10th April, 1989. The medical certificate is not the conclusive evidence to what the Medical Officer has stated. Admittedly the Medical Officer was not examined by the appellant and, therefore, there was no convincing evidence on record to show that the default of one month in deposit of monthly rent occurred due to reasons beyond the control of appellant.

6. The question of default in compliance with the order of deposit of arrears of rent and monthly rent due was examined by the Supreme Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali reported in P L D 1967 SC 530, and it was observed: "Having regard to the language of this subsection we find it difficult to accept that the legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. 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 provision of the Ordinance it must not be overlooked that the provisions thereof purport 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 n' 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). Applying this principle in the present case the only interpretation that can be given to the provisions of subsection (6) of section 13 of the Ordinance is that its words are mandatory and the Court has no further discretion left in the matter, for, the tenant cannot be entitled to more than what the meanings of the words clearly import. But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Courts have purported to do in cases of this nature is to determine the true scope and meaning of the word "default and to see whether such default has in fact been committed."

7. While interpreting the word "default" the Supreme Court further held: "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, in no way, responsible or 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."

8. The ratio of the above authority of the Supreme Court, which is the leading judgment on this point, is that the default is purely a relative term just like negligence and it would embrace every failure by the defendant to perform her obligation unless prevented by superior force over which she has no control.

9. The case of Nazir Ahmed v. Halaram, reported in 1985 C L C 41, is again relevant in a situation like under consideration. The learned Judge after examining a chain of authorities of the Supreme Court was of the view that default of two days on the ground of serious illness in compliance of the order of Rent Controller must result in summary ejectment. At page 43 it was observed: "The pith and substance of the authorities is that the tenant can enjoy the special protection offered to him in this special statute only if he strictly complies with the reciprocal obligations prescribed in the Act. The question of non‑compliance of the tenatative order has arisen in a number of cases in different situations and the view has consistently prevailed that the default in complying with this order is not condonable by the Rent Controller and any lapse on the part of the tenant should result in the penal consequences that are prescribed for its non‑compliance in the section itself."

10. Mr. Abdul Fateh Malik, learned counsel for appellant has cited the cases of Muhammad Sarwar v. Mumtaz Ali Chandani, reported in P L D 1987 Karachi 173, and Mst. Sughra Begum and 10 others v. Aftab Ahmed, reported in P L D 1987 Karachi 524, in an attempt to show that default committed in the above circumstances could be termed as technical default and was condonable. With f profound respect, I am unable to persuade myself to follow the view taken in the above authorities. The Supreme Court has consistently followed the view taken in Ghulam Muhammad Khan Lundkhor's case and any attempt to make any deviation from the course set by the Supreme Court must be discouraged.

11. No case for interference is made out and the appeal is dismissed with no order as to costs. Two months time is, however allowed to the appellant to vacate the demised premises. H.B.T/S‑638/K Appeal dismissed.