P L D 1967 Supreme Court 530 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, arises out of a judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, in a second appeal under section 15(4) of the West Pakistan Urban Rent Restriction Ordinance No. VI of 1959 (hereinafter called the Ordinance). The said second appeal itself arose out of an application made by the respondent herein for the ejectment of the appellant from a flat on the first floor of a building, known as "Bright View", situated at Royal Park, McLeod Road, Lahore, on the ground that he was a habitual defaulter in the payment of rent. This application for eviction was filed on the 6th of April 1959. The appellant entered appearance and filed his written statement on the 14th April 1959, denying that he was a defaulter. The appellant's case was that the respondent being bent upon getting vacant possession of the premises was harassing him in many ways by cutting off the water connection and by refusing to repair the premises or to accept rents tendered. That there was some default was, however, indirectly admitted, as the appellant offered to pay whatever was due after deducting a sum of Rs. 240 which he had been compelled to spend for restoring the water connection. The appellant also admitted the tenancy and that the rent of the premises was Rs.50 per month. On this admission the Rent Controller on the 28th of November 1959, framed only two issues, namely, (i) as to whether the defendant has been paying or tendering rent according to the terms of his tenancy and (ii) to what relief, if any, is the plaintiff entitled ? Prior to this date the appellant had only been directed to deposit a sum of Rs. 500 by 16‑7‑59 on account of the arrears of rent from 1‑8‑58 to 31‑3‑59 but no order had been made for the deposit of future rents. Hence on the 28th November 1959, the Rent Controller also ordered the defendant as required by section 13(6) of the Ordinance to deposit month by month the rent at Rs. 50 per month before the fifth day of each month. The appellant had deposited Rs. 500 on 18‑7‑59 and made certain other deposits from time to time at his convenience but no further step was taken either by the respondent or the Court until the 27th of June 1960, when the Rent Controller demanded the production of the treasury vouchers to see whether the deposits ordered had been regularly made. The case was even thereafter not heard on various dates but when it came up for hearing on the 13th September 1960, an adjournment was again allowed for checking the vouchers and the case was finally fixed for hearing on the 7th of January 1961. Again on this date it could not be beard owing to the absence of the Presiding Officer on leave. It was then transferred to another Rent Controller and remained pending before him till the 19th of October 1961, when on the request of the parties the case was transferred to a third Rent Controller. The latter took up the matter on the 3rd of November 1961 and found that only the following payments have been made: Rs. (1) 8‑12‑59 300 (2) 5‑1‑60 50 (3) 5‑3‑60 100 (4) 5‑5‑60 100 (5) 2‑7‑60 50 (6) 1‑9‑60 100 No further treasury receipts for any period after this were available, hence at the request of the appellant the matter was again adjourned till the 6th of November 1961, to enable the appellant to produce treasury vouchers for further payments, if any. On this date the appellant filed 11 more treasury vouchers showing payments as follows:‑ Rs. (1) 5‑4‑60 50 (2) 3‑12‑60 50 (3) 4‑1‑61 50 (4) 4‑2‑61 50 (5) 3‑3‑61 50 (6) 4‑4‑61 50 (7) 4‑5‑61 100 (8) 4‑7‑61 50 (9) 4‑9‑61 50 (10) 3‑10‑61 50 (11) 4‑11‑61 50 On the evidence of these treasury vouchers the Rent Controller, after hearing the parties, took the view that the deposit of Rs. 300 made on the 8th of December 1.959, could not be heated as a deposit of future rent in terms of the order of the 28th of November 1959, but was a payment in respect of arrears from 1‑4‑59 to 31‑10‑59 for which no order had been made by any Rent Controller. As for the other payments since many of them were clearly not in terms of the order of the Court there had been persistent default and, therefore, in accordance with the provisions of section 13(6) of the Ordinance he had no other alternative but to strike off the defence of the appellant and put the landlord in possession of the property. The contention that there had in fact been no default at all on the part of the appellant, for, he had paid a total amount of Rs. 1,300 (including the sum of Rs. 300 paid on 8‑12‑59) as against Rs. 1,250 due and payable by him for the months of November 1959, to October 1961, found no favour with the Rent Controller who took the view that even the payment of Rs. 300 was not before the 5th December 1959 and was, therefore, not a payment in terms of the order of 28‑11‑

59. The Rent Controller then relying upon certain decisions of the High Court of West Pakistan went on to hold that where there was default he had no jurisdiction to extend the time for the deposit of the rent or to condone the default. Against this order the appellant went up in appeal to the District Judge, Lahore. The learned District Judge also found that the appellant had been guilty of persistent default of the order for the deposit of rent. He too agreed that the deposit of Rs. 300 made on the 8th of December 1959, was for the period from June to November 1959, because the sum of Rs. 500 paid earlier covered the period up to May 1959. The appellant was thus held to be a defaulter not only in respect of the total amount due but also in respect of almost every deposit made in 1960. The opinion of the Rent Controller that he had no alternative but to strike out the written statement in terms of the provisions of section 13(6) of the Ordinance was also upheld. In second appeal a learned Single Judge of the High Court took the view that even if the appellant's contention that he had deposited Rs. 300 as advance payment in December 1959, to guard against future lapses were to prevail, the non compliance with the direction of the Court for payment of future monthly rent in respect of the month of November was still there, because, the rent for that month had to be deposited before the 5th December 1959 and this was clearly not done. He too was satisfied that the appellant had persistently failed to comply with the directions of the Rent Controller for the payment of future rent and held that the appellant had in fact been paying rent according to his own "convenience and choice regardless of the directions of the Court". Regarding the legal argument that "default" under section 13(6) of the Ordinance should be interpreted as meaning "wilful default" and that, in any event, the Court is not powerless in granting relief upon the equitable principles embodied in section 114 of the Transfer of Property Act even in a case falling within the mischief of the Ordinance, the learned Judge held that the argument was wholly irrelevant, for, the case had to be decided under the provisions of a special law and the directions thereof were clearly mandatory leaving no scope for the exercise of any discretion by the Court, or for the importation of the equitable principles of section 114 of the Transfer of Property Act. The appeal was, accordingly, dismissed but the appellant was given two months' time to vacate the premises provided he deposited all arrears of rent due from him by the 15th of May 1964. Leave was granted in this case to consider whether the interpretations placed by the Courts below upon the provisions'' of section 13(6) of the Ordinance were correct and as to whether the Court had really no discretion left in the matter. Learned counsel appearing in support of this appeal has not attempted to show that he had complied with the directions of the Court for the payment of future rent but has contended that the first deposit made on the 8th December 1959, was really an advance payment in terms of the order of the 28th of November 1959, and not, as held by the Courts below, a payment in respect of arrears from April or June 1959, to October 1959, for, there yeas no direction of any Court with respect to this period, Whatever payments he had made should, therefore, have been adjusted against payments which ought to have been made under the order of the Court. He could not, it is urged, be penalised for a default of something in respect of which there was no order of the Court. But even if this argument is accepted it cannot be disputed that the amounts thus paid were not in full compliance with the order in so far as for several months in the year 1960 the appellant did not deposit before the 5th of the succeeding month and did not make any deposit at all in the months of June, August, September, October and November 1960. He was thus patently in breach of the order passed by the Rent Controller on the 28th of November 1960. The question then arises as to whether if in fact the tenant has paid up all the rents due, although not in strict compliance with the directions of the Court, the Court has any discretion left in the matter of condoning the irregularity as is now sought to be contended by the appellant. Subsection (6) of section 13 of the Ordinance is in these terms:‑ (6) 1n proceedings under this section on the first date of hearing or as soon as possible after that date 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 fifth 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 taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord subject to adjustment of the approximate amount deposited by the tenant." This shows that the law casts a duty upon the Controller to direct the tenant to deposit not only the arrears but also future rents before the date specified in the section itself and then goes on to provide the consequence of the default in language which is clearly mandatory in nature but it is urged that since the object of the section is merely to ensure the payment of rent to the landlord without his having to resort to litigation its provisions ought not to be treated as penal provisions. The intention of the Legislature, it is strenuously argued, could clearly not have been to penalise the tenant for any and every kind of non‑compliance with the order. If the non‑payment is due to reasons beyond the control of the tenant can it be held that his defence must nonetheless be struck out? Such an unreasonable and harsh intention should not, it is said, be ascribed to the Legislature. The word `default', it is urged, necessarily implies an element of negligence and it is pointed out that even in Stroud's the word default seem by the defendant to superior force over which he or unless hindered non‑performance of some condition precedent, or unless there has been a waiver of performance." This, it is submitted, clearly indicates that it is a purely relative term just like negligence. In support of this contention learned counsel has also relied on several decisions of the West Pakistan High Court itself. In Mst. Shah Jahan v. Mst. Mukti (P L D 1963 Kar. 777), a Division Bench accepted the meaning given to the word `default' in Stroud's Judicial Dictionary. To the same effect is the decision in the case of Abdul Majid v. Saadullah (P L D 1963 Quetta 16), where the learned Judge,, who has decided the case out of which the present appeal arises, himself took the same view of the meaning of the word default in subsection (6) of section 13 of the ordinance. These conditions were followed by a learned Single Judge of the Peshawar Bench in the case of Syed Toghan Shah v. Shah Muhammad Maduni, Abbas.( P L 1) 1961 Pesh. 101) On the other hand the rent Controller has relied on the decisions of the same High Court in the cases of Muhammad Sharif v. Muhammad Sharif (P L D 1.960 Lah. 1015) Muhammad Ilyas Dobash v. Muhammad Iqbal (P L D 1960 Lah. 1112) and Bakhshi Muhammad Ali v. Aurang Zaib Khan (P L D 196J Lah. 12 10), in support of the view that die provisions of section 148 of the Code of Civil Procedure do not apply to proceedings under the Ordinance and therefore, the Rent Controller has no power either to extend the time fixed by subsection (6) of section 13 of the Ordinance or to give any relief to a defaulting tenant. Learned counsel for the appellant has also contended that, in any event, the Rent Controller should have given the defaulting tenant an opportunity to explain his default before striking out his defence. This latter question can only arise if it is accepted that the word `default' in this section has a narrow connotation and does not embrace any and every kind of default. In the present case, however, it appears to us that this opportunity was not denied to the appellant, for, both on the 3rd and on the 6th of November 1961, the tenant was heard. Indeed on the 3rd of November 1961, further time was at his request given to him to produce treasury vouchers far further payments, if any made, and 11 such vouchers ware actually produced on the 3rd of November 1931. His lawyers were also heard on this date. There was thus no denial of opportunity to the tenant to explain his default if he had any reasonable explanation to offer. None was, however, given either at this stage or at even the appellate stages. Even in the petition before this Court no explanation of the delay has been given. All that is contended is that since the tenant has in fact paid up all the amounts due up‑to‑date relief should be given to him on principles of equity, justice and good conscience as embodied in section 114 of the Transfer of Property Act. The latter section does not, of course, in terms apply but the question is whether even so there is any discretion left with the Court to grant relief in suitable cases. 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 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 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 sub section (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. 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. Now 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 unavoid able or are due to causes for which the defaulter is, in no way, responsible. Applying these tests in the present case we find that the only excuse put forward by the appellant is that since he was living in a village of the Mardan District and had very often to go to his village home to look after his affairs he could not, in spite of his best intentions, fully comply with the order of the Court regarding the deposit of future rent. His default, it is contended, was in no case wilful or contumacious, for, whenever he was in Lahore he made deposits and had in fact in this way cleared up all the dues of the landlord This, however, is clearly not sufficient. 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 be 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. Even in this sense of the term, however, the appellant has in the facts of the present case been shown to be in default. There is no further scope, therefore, of granting him any relief. The provisions of the Transfer of Property Act do not in terms apply nor can the principles of section 114 thereof be invoked on equitable principles, for, equity cannot override the law. This is not a case of forfeiture at all but of granting to a tenant a relief which goes beyond what the meaning of the words in the statute strictly import. This obviously cannot be done. For the reasons given above, we have come to the conclusion that this appeal must fail and we accordingly dismiss the same. But having regard to the fact that the appellant has paid up all arrears of rent we make no order as to costs. The appellant will have one month's time to vacate the premises. A. H. Appeal dismissed.