2003 PLP 1580 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

These petitions are directed against judgment, dated 20-1-2003 passed by the Lahore High Court, Lahore, whereby S.A.O. Nos.89 and 90 of 2001 of the petitioners were dismissed.

2. The respondent moved separate applications against the petitioners seeking their eviction from two shops on the grounds of wilful default in payment of rent and personal need. The Rent Controller, Lahore, by order, dated 11-3-2000, under section 13(6) of the Punjab Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) directed each of the petitioners to deposit the arrears of rent of Rs.46,530 within one month by deducting the amount of rent already paid by them and also to deposit future monthly rent @ Rs.1,220 before the 15th day of each subsequent month. The respondent made another application before the Rent Controller for striking off the defence of the petitioners on the ground that they had deposited rent of Rs.1,220 for the month of April, 2000 after due date on 27-5-2000. The Rent Controller, by order, dated 14-9-2000, struck off the defence of the petitioners and directed their eviction from the property. However, Additional District Judge, by judgment, dated 6-10-2001, accepted the appeals of the petitioners and remanded the cases to the Rent Controller with a direction to decide the controversy of default alongwith other issues after recording evidence. The respondent filed separate appeals S.A.O. No. 89 and 90 of 2001 which were allowed by the Lahore High Court, Lahore, by impugned judgment, dated 20-1-2003 whereby the judgment, dated 6-10-2001 of the Additional District Judge was set aside and order, dated 14-9-2000 of the Rent Controller was restored. Hence these petitions for leave to appeal.

3. The learned counsel for the petitioners argued that the Rent Controller was not legally justified in passing the order, dated 11-3-2000 for the deposit of arrears of rent of Rs.46,530 for the period from 17-9-1996 to 31-3-2000 by calculating the same by reference to periodic increase of rent with effect from 1-7-1989 onward in terms of section 5-A of the Ordinance. The petitioners deposited a sum of Rs.19,334, instead of Rs.12,117, on 1-4-2000 after deducting the amount of rent already paid by them. The petitioners having overpaid an amount of Rs.7,217 were under no legal obligation to deposit further monthly rent until the over-payment was adjusted. -Therefore, the delay in the deposit of rent by them for the month of April, 2000, did not constitute any default in compliance of the order of Rent Controller. It was next contended that sufficient amount of security already stood deposited with the respondent which could be utilized towards the payment of monthly rent. The learned counsel relied oil the cases of Muhammad Yousuf v. Abdullah (PLD 1980 SC 298), Nisar Ahmed Khawaja v. Edoo Begum (1987 MLD 3200 (Karachi), Muhammad Amin v. Mst. Nasim Begum and 2 others (1984 CLC 1745), Muhammad Younas v. Iqbal Begum (PLD 1980 Lahore 577) and Salahuddin Butt v. Khawaja Muhammad Tariq (PLD 1981 Lahore 132) in support of his submissions.

4. On the other hand, the learned counsel for the respondent submitted that the order, dated 11-3-2000 passed by the learned Rent Controller was not complied by the petitioners. The provisions of subsection (6) of section 13 of the Ordinance were mandatory providing for the consequences of striking off defence and eviction in case of non compliance of order of the Rent Controller. Reliance was placed on the cases of Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 SC 190), Syed Muhammad Zaman v. Abdul Khaliq (1991 SCMR 1982) and Muhammad Yousaf v. Muhammad Bashir and others (1990 SCMR 577).

5. We have heard the learned counsel for the parties at length. The petitioners had deposited the arrears of rent on 1-4-2000. However, they failed to comply with the order of the Rent Controller under section 13(6) of the Ordinance to deposit the rent for the month of April, 2000 by the due date and deposited the same on 27-5-2000. The provisions of subsection (6) of section 43 of the Ordinance are reproduced below for facility of reference:-- "(6) In proceedings under this section on the first date of hearing or as soon as possible after that 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 fifteenth day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without laking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant." It is clear that, ordinarily, once the default in the compliance of order (it Rent Controller under section 13(6) of the Ordinance is established, the penal consequences of the defence of the tenant being struck off and the landlord being put into possession of the property by order of the Rent Controller are to follow without taking any further proceedings. It is in a very exceptional case, where a non-compliance of the order of the Rent Controller is made for reasons beyond the control of a tenant or for other sufficient cause, that the time for such a deposit of rent 'may be extended by the Rent Controller.

6. The cases of Nisar Ahmed Khawaja, Muhammad Yousaf and Muhammad Younas (supra) relied on by the learned counsel for the petitioner are not relevant to the controversy involved in the present case. In Muhammad Amin (supra) the deposit of rent on 15th of a month was treated by the Lahore High Court to be a valid deposit. In Salahuddin Butt (supra) the deposit, by a tenant, of arrears of rent for each month separately by a tenant was held to be sufficient compliance of the order of the Rent Controller.

7. The question of legal effect of non-compliance of an order under section 13(6) of the Ordinance was considered by this Court in the cases referred to by the learned counsel for the respondent. In Syed Muhammad Zaman (supra) it was held that the Rent Controller, on I coming to know that default had been committed, had no discretion in the matter but to strike off defence when the tenant had failed to explain the default in compliance of the order of the Rent Controller. In Muhammad Yousaf v. Muhammad Bashir and others (supra). This Court took the view that a default under subsection (6) of section 13 of the Ordinance was of a peculiar nature which distinguished it from the default in payment of rent relatable to other provisions of section 13 of the Ordinance. In Mst. Zarina Khawaja (supra), it was observed that the security amount could not be used by the Court for absolving the tenant from liability of eviction for non-compliance with the order of deposit and the default remained intact notwithstanding the security amount.

7. The scope of subsection (6) of section 13 of the Ordinance, 1959, was also examined by this Court in some other cases. In the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530) the following observations were made:-- "Having regard to the language of section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, one finds 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 and expeditious method of realizing 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 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 serving upon him a notice to quit but also to co-relatively give special benefits and protections to tenants under a certain conditions. Upon general principles, therefore, where 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. 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 fox the Court to decide in each case as to whether there has, in fact, been a default. Non-compliance which is avoidable cannot possibly be excused. 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. 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." The same view taken in the case of Hayat Ali v. Miss Aziza Mahmood (1980 SCMR 298). In another case of Mst. Akhtar Jehan Begum v. Muhammad Azam Khan (PLD 1983 SC 1), it was held that the Rent Controller, for the purpose of passing the order under section 13(6) of the Ordinance, 1959, was not required to determine quantum or rate of rent finally if same was in dispute. It was further observed that the consequence of non-compliance of order under section 13(6) of the Ordinance, 1959, was the summary disposal of case, without taking any further proceedings, by striking off defence and passing order of eviction. Similar view was taken in subsequent cases of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCMR 580), Muhammad Amin v. Ghulam Nabi and 2 others (PLD 1990 SC 1202), Asif Chughtai v. Mrs. Zila Huma and others (1995 SCMR 741) and Zikar Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328). In the case of Muhammad Siddique v. Muhammad Rashid (1985 SCMR 21) the words "before fifteenth" day of each month in section 13(6) of the Ordinance were interpreted to mean "exclusive of the last day of fifteenth of the month". It was further held that the deposit of rent on fifteenth of calendar month constituted non-compliance with Controller's order under section 13(6) of the Ordinance.

8. We find that the delay by petitioners in the deposit of rent for the month of April, 2000 was not justifiable. It was only after the ejectment order had passed against them on the application of the respondent that they took a fallacious plea, for the purpose of re-opening the whole case, that they had already over-paid the rent. The learned counsel for the petitioners failed to offer any reasonable explanation for disregarding the order of the Rent Controller for the deposit of monthly rent of April, 2000 before 15th May, 2000. We are, of the view that there were no justifiable grounds or unavoidable circumstances preventing the petitioners from complying with the order, dated 11-3-2000 of the Rent Controller under section 13(6) of the Ordinance. The impugned judgment of the Lahore High Court, does not suffer from any legal infirmity so as to warrant interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan. This is not a fit case for grant of leave to appeal.

9. For the foregoing reasons, we do not find any merit in these petitions and the same are dismissed accordingly. M.B.A./K-89/S Petition dismissed.