P L D 1964 (W (PLP)

Date of hearing: 24th January 1964. This second appeal involves the interpretation of the terms "default" within the meaning of section 13. subsection (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959.

2. The undisputed facts leading up to this second appeal are that on 10th April, 1963, the appellant was ordered by the learned Rent Controller to deposit the arrears of rent amounting to Rs.

280. The appellant was further directed to continue deposit ing the monthly rent at the rate of ks. 80 p. m. before the 5th of each month. The appellant failed to deposit the rent of August before the 5th of September, and in fact deposited the amount on 5th September 1963. The respondent moved the Rent Controller for striking off the defence of the appellant for the "default." The explanation of the appellant was that on 4th September the Treasury Officer was on leave and the Head Clerk was also away from his seat and that, there fore, the challans were passed late and when he went to the Bank, the Bank too was closed. The learned Rent Controller did not feel satisfied with this explanation and struck off the defence as he thought that the respondent "has intentionally failed to deposit the rent of August 1963, before the 5th of September 1963". The appellant took appeal to the District Judge but the same result followed on appeal. The appellant has come up on further appeal.

3. The learned counsel for the appellant argued that the word "default" occurring In section 13 (6) of the Ordinance means failure to comply with the order in regard to payment of future rent by the tenant before the specified date either wilfully or when the failure has been occasioned by the negligence of the tenant, and that, at any rate, it does not embrace failure which has been occasioned not due to the fault of the tenant or when the tenant is prevented "by a superior force over which he had no control." It was argued that in the instant case the failure to deposit the future rent before the 5th was neither wilful nor had it been brought about on account of the negligence of the tenant, In that he had moved the Controller on the 3rd and on the same day obtained his order for deposit of the rent and on 4th he went to the Treasury with the challans, but on account of the absence of the Treasury Officer and the Head Clerk there was some delay in obtaining the requisite signatures and when he went to the State Bank for deposit the banking hours for receiving deposits were over and, therefore, the amount was deposited on the 5th.

4. The learned counsel complained that as soon as a question arose whether there had been a "default", it was incumbent on the Rent Controller to allow the appellant a "hearing" which includes the right to lead evidence, and that in the instant case the appellant had been condemned unheard. The learned counsel cited two Division Bench rulings Mst. Shah Jehan v. Mst. Mukti (P L D 1963 Kar. 777) and Abdul Maid v. Saadullah and another (P L D 1963 Quetta 16) in support of his argument that "default" did not embrace failure which had been occasioned by superior force over which he had no control.

5. The learned counsel for the respondent on the other hand argued, that section 13, subsection (6) left no discretion whatever to the Rent Controller to extend the period of payment of future rent, in that in subsection (6) the period of payment of future rent is to be made "before the 5th of each month" and as soon as there was failure to deposit the future rent before that date the Rent Controller was obliged to strike off the defence without entering into inquiry whether the failure to deposit was wilful or not.

6. The point raised in this appeal stands concluded by the two Division Bench rulings, referred to above, in which the term "default" has been interpreted to mean "wilful default." In both A these decisions the learned Judges accepted the following definition of that word as given in the Stroud's Judicial Dictionary:‑ "Default would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of whether." While respectfully agreeing with the above definition of the term "default", I would like to pursue the discussion a little further to show that the term "default" means "wilful default". The word "default" has not been defined in the Ordinance and we have, therefore, to fall back on the dictionary meaning of this word. The word "default" was used in section 10 of the Rent Recovery Act (Madras Act VIII of 1865). That Act too did not define the term. Section 10 of that Act provides that "if within ten days from the date of the Collector's judgment the defendant shall not have accepted the patta as approved or amended by the Collector, and shall not have executed a muchalka in the terms of the said patta, the Collector, on proof of such default, shall pass an order for ejecting the defendant." In 4 Mad. 167, 7 Mad. 572 and 22 Mad. 167, the term was interpreted to mean " `wilful default' and not one which may have been unavoidable". In Rai Narindra Bahadur and another v. Pandit Ganga Sagar and others (57 I C 509) the Oudh Judicial Commissioner's Court had to consider the meaning of the word "default", within the meaning of Order XXI, rule

57. Lindsay, J. C., at page 509, summed up the discussion in the following words:‑‑ "No dismissal other than a dismissal on account of default of the decree‑holder has the effect of putting an end to an attachment." It was further held that "default" means the omission to do something which a decree‑holder is legally bound to do. In other words, his Lordship was pleased to interpret the term to mean default due to the fault of the decree‑holder and not the "default" over which the decree‑holder had no control.

7. Lastly, the object of demanding payment of 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 the future rent before a specified date is never intended to be penal.

8. Having held that "default" means "wilful default" and not one which may have been unavoidable, it becomes incumbent on the Rent Controller to decide the issue whether there had been any default as contemplated by section 13, subsection (6) of the Ordinance and for that purpose he is under obligation to allow the parties to lead such evidence as they may wish to produce in support of their respective claims. In the instant case the learned Rent Controller did not allow the appellant to lead evidence in support of the claim that the failure to deposit the rent was unavoidable. This being the position, the order of the learned Rent Controller that there had been no default is vitiated, I accordingly accept the appeal, and remit the case to the Rent Controller to decide the question whether there had been default within the meaning of section 13, subsection (6) of the Ordinance, after allowing the parties to lead such evidence as they may wish to produce. Costs to follow the event. S. Q. Appeal accepted.