1997 PLP 863 (MLD)

By this appeal order of learned III Senior Civil Judge/Rent Controller, Hyderabad (Mrs., Nasim Mansoor) dated 21st March, 1993 whereby she has struck off the defence off the appellant has been challenged. The learned Rent Controller passed tentative rent order in Rent Application No.199 of 1990 vide order dated 19‑8‑1991 whereby the appellant was directed to deposit the rent from May, 1991 with further directions to continue to deposit the rent at the rate of Rs.60 per month in this case on or before 10th of each calendar month and that the respondent would be entitled to withdraw the rent from August, 1990 lying deposited in R. A. No. 158 of 1984. It is alleged that the appellant failed to deposit the rent for the month of October, 1991 on 10‑11‑1991, therefore, his defence was struck off and he was directed to hand over vacant and peaceful possession within 15 days. I have heard Mr. Agha Khuda Bux learned counsel for the appellant and Mr. Rafique Ahmed learned counsel for the respondent and have perused the record. Learned counsel for the appellant submitted that the learned Rent Controller failed to take into consideration the facts of the case and passed the impugned order which is illegal and against the principle of natural justice. He also submitted that the learned Rent Controller ought to have appreciated that the appellant had been depositing the rent regularly since 1984. He also referred to the objections dated 18‑4‑1992 and the affidavit dated 9‑8‑1992 filed by the appellant in reply to application under section 16(2) of the Sindh Rented Premises Ordinance. It would be relevant to reproduce paras.3, 4 and 5 of this affidavit as under: "

3. That, I have taken the rent for the month of October, 1991 on 10 11‑1991 and offered the same to the Rent Clerk of Nazir of the Court at about 11‑00 a.m. He said that he had already sent the cash and deposited in the Bank and I had come late for deposit of the rent, due to not good situation in the City, he would not keep the cash as such I was told to come on the next day. He also assured me that no delay or damage would be caused to me. I, therefore, returned back and again came on next day and deposited the amount in Court.

4. That there is no negligence of any kind on my part.

5. That, the record will show that except the month of October, 1991 1 am regular in payment of rent. October rent has been delayed by one day i.e. on the next day the amount is paid and the same was due to circumstances stated above." The respondent did not file any counter‑affidavit. The learned Rent Controller while considering the above explanation treated it as an admission of delay on the part of the appellant and without proper application of judicial mind opined, "that non‑compliance of any Court order is sufficient to hold that the same has been deliberately violated" and thus the defence should be struck off. Learned counsel for the appellant also submitted that at best it could be a case of technical default. However, according to the learned counsel for the respondent the affidavit was filed by the appellant after four months of the submission of the report of the Nazir and he vehemently urged that the appellant was negligent in payment of rent. In my humble view it is not a case of technical default. Even otherwise to establish default one must show that the non‑compliance has been due to some unavoidable 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. In a situation as had arisen in this case the Rent Controller is under obligation to allow a reasonable opportunity to the tenant to adduce evidence in proof of the circumstances which prevented him from making the deposit and a similar opportunity should also be afforded to the landlord to rebut the pleas/explanation. offered by the tenant. As observed earlier the learned Rent Controller has not appreciated properly the explanation offered by the appellant and the same has also gone unchallenged. In case there was any doubt about the facts disclosed in the affidavit submitted by the appellant the concerned clerk should have been examined to verify the statement of the appellant. There is no denial of the fact that the appellant had been paying the rent regularly since 1984 and his late deposit of rent by one day for the month of October, 1992 in the circumstances of this case could not be termed as wilful default. Thus equity and justice demanded that the learned Rent Controller instead of presuming default should have applied her mind to the question whether default was committed or not so that the tenant should not have been deprived of his valuable right of tenancy in an arbitrary manner. It was held by the Hon'ble Supreme Court in Ghulam Muhammad Lundkhor v. Safdar Ali PLD 1967 SC 530 that in the event of non‑compliance of tentative rent order consequences of section 13(6) of the erstwhile West Pakistan Urban Rent Restriction Ordinance, 1959 would follow but it did not mean that the Rent Controller was not competent to decide whether a default was at all committed so as to attract the consequence. The relevant extract from the said judgment is reproduced as under: "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 meaning 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. " It has been further held by the Hon'ble Supreme Court in the aforesaid judgment: "As to the meaning to be given to the word 'default' in subsection (6) of section 13 of the Ordinance this much can safely be said that it cannot possibly excuse non‑compliance which is avoidable. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible." Applying the above test in the facts and circumstances of the present case I have come to the conclusion that no case for wilful default or contravention of tentative rent order has been made out, therefore, the impugned order of the learned Rent Controller is set aside and the case is remanded with the directions that the learned Rent Controller should proceed with the matter and decide it on merits expeditiously according to law. There shall be no order as to costs. Before parting with the judgment I am constrained to observe that on 5‑10‑1992 the matter was adjourned for arguments by the learned Rent Controller and thereafter on 15 dates of hearing the matter was adjourned for the same purpose and ultimately on 21‑3‑1993 the application under section 16(2) of the Sindh Rented Premises Ordinance, 1979 was allowed. This kind of unnecessary delay causes great hardship to the litigant public and the subordinate Courts should always avoid such practice as may hamper the course of justice. H.B.T./M‑2171/K Order accordingly.