1988 PLP 245 (CLC)

This appeal has been brought under section 24 of the Cantonment Rent Restriction Act, 1963 from an order dated 13‑11‑1986 of the learned Additional Rent Controller, Lahore Cantt. whereby he has struck off the defence of the appellant and ordered his ejectment.

2. The respondents filed an application on 19‑3‑1984 under Section 17 of the Cantonment Rent Restriction Act, 1963 for eviction of the appellant from a shop comprising in Property No. 178 situated in Shutter Mohallah, Sadar Bazar, Lahore Cantonment at the monthly rent of Rs.300. The eviction of the appellant was sought on the ground of default from January 1983 to February 1984 and personal requirement of the shop.

3. The learned Additional Rent Controller passed an order on 5‑6‑1984 directing the appellant to deposit in Court the arrears of rent coming to Rs.5,100 for the period from 1‑1‑1983 to 31‑5‑1984 at the rate of Rs.300 per month on or before 16‑7‑1984 and to deposit the future rent before the 5th of the following month. The case was adjourned to 17‑7‑1984 requiring the appellant to produce the receipts of deposit on that day. On the said date the receipts produced by the appellant showed the deposit to the extent of Rs.5,

100. The learned Additional Rent Controller observed that the appellant had not deposited the rent pertaining to the month of June (as according to the order passed the rent was to be deposited .........upto 4th July). In view of the learned Additional Rent Controller as such the appellant was in breach of the order passed on 5‑6‑1984. He struck off the defence of the appellant under section 17(9) of the Cantonment Rent Restriction Act, 1963. At the same time he ordered the ejectment of the appellant vide order dated 17‑7‑1984.

4. The appellant filed an appeal according to the law, then obtaining, in the Court of District Judge, Lahore which came to be decided by the learned Additional District Judge, Lahore. The learned Additional District Judge observed that the order of the learned Additional Rent Controller was not sustainable for the reasons firstly that no issue was framed by him, secondly the appellant was nut afforded an opportunity to explain the delay in the deposit of the rent or failure to do so and thirdly the respondents did not move any application for bringing to the notice of the Court the alleged default of rent. The learned Judge relied upon Din Mohammad and another v. Umar Hayat and others 1981 S C M R 326, allowed the appeal, set aside the order for eviction and remanded the case to the learned Additional Rent Controller for a decision afresh after framing the relevant issues and recording the evidence of the parties. This is vide judgment dated 6‑6‑1985.

5. The learned Additional Rent Controller on remand framed an issue that whether there was sufficient cause for condonation of rent default for the month of June, 1984. The appellant produced Malik Zafar lqbal son of Kifayat Ali, Deputy Officer Personnel Department Ravi Rayon Mills Kala Shah Kaku, Sheikhupura who stated that in connection with other cases he was sitting in the office of Mr. Javed Altaf, the counsel for the appellant who was a Legal Advisor in the said Mills, during his stay the appellant turned up and asked his counsel as to what order precisely was passed in his case. Mr. Javed Altaf told him that the rent was to be deposited to the extent of Rs.5,100 by 16‑7‑1984. Mr. Javed Altaf, Advocate as witness stated that his instruction to his client was that he was to deposit Rs.5,100 and then later on the rent of every month regularly, that was the rent of July before the 5th and so for every subsequent month. The appellant himself as his own witness stated that according to the instruction Rs.5,100 as rent were to be deposited by 17‑7‑1984 and subsequent thereto for every month before 5th. He further stated that he did so.

6. The learned Additional Rent Controller opined that the appellant and his witnesses had vainly tried to explain that the non‑payment of the rent for the month of June 1984 before the 5th of July, 1984 was a result of miscalculation and misunderstanding and that the order was orally announced. The order was passed in the presence of the counsel for the parties whereby the appellant was directed to deposit in Court the arrears of rent amounting to Rs.5,100 for the period from 1‑1‑1983 to 31‑5‑1984 at the rate of Rs.300 per month on or before 16th July, 1984 and was to continue to deposit the future rent before the 5th of following month. The order was clear and suffered from no ambiguity. The rent for the month of June, 1984 was to be deposited before the 5th of July, 1984 which was actually deposited on 18‑7‑1986 after an objection by the counsel for the landlord, no application was filed by the appellant explaining the reasons for not filing the rent in time. An application for condonation of default was submitted for the first time on 19‑11‑1985 after the case was remanded which was clearly an afterthought and could not be accepted. The assertion of the appellant that he and his counsel were misled by the oral order of the Court was not true as there was a recorded order to that effect. He rejected the plea of the appellant, so he struck off the defence of the appellant and ordered his eviction giving him a month's time. This is vide order dated 13‑11‑1::86.

7. The learned counsel for the appellant has contended that there was a dereliction as to the payment of the rent for the month of June, 1984. The appellant was misled as to the deposit of rent for the month of June by the suggestion of his counsel (R.W.2). The learned counsel has also referred to Section 17(8)(9) of the Cantonment Rent Restriction Act, 1963 in order to argue that in the expression in clause (9) if the tenant fails to deposit the amount of rent before the specified date . . . . . . . . . . the legislature contemplates a deliberate failure to deposit and not mere failure. He has relied in support thereof on Ghulam Muhammad Khan Lundkhor v . Safdar Ali P L D 1967 S C 530, wherein the august Supreme Court has observed, "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 learned counsel for the respondents in reply has submitted that the plea that the appellant was misled as to the deposit of the month of June by the suggestion of his counsel was not raised at the proper time. That was raised after the case was remanded by the appellate Court. He has further maintained that there is much difference as to fail and default. The appellant was made aware on 5‑6‑1984, when the date of hearing was fixed for the production of the receipts (17‑7‑1984) . He has relied upon Haji Fazal Karim v . Additional District Judge, Lahore and others P L D 1982 S C 306, in this case it was observed, "There was enough time and opportunity to the petitioner to make an explanation, if he so desired and to substantiate it by any material other than his own verbal or written statement. If as stated now by the learned counsel, the petitioner was misled by his own counsel (who appeared before the Rent Controller) regarding the language of the order passed under section 13(6), the counsel could have made a statement in this behalf provided he wanted to support his client." Fazalur Rahman v. Mst. Sarwari Begum and others 1986 S C M R 1156, in this case it was observed, "The learned Rent Controller was competent to strike off the defence of the appellant as there was no other option left for him. Appellant himself took the risk of depositing the rent on the last date and urged that the Clerk of the learned counsel who prepared deposit challans, was not present, and, therefore, the rent could not be deposited in time. We are not impressed with this argument. The appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him." Malik Aman v. Khawaja Abdul Aziz 1987 C L C 425 (Kar.), in this case in the matter of striking off the defence in a rent case due to non‑deposit of the arrears of rent and the future rent it has been observed, "If his Advocate had not informed him of the proceedings or the passing of the tentative order and he had grievance against his previous Advocate he would have sought his remedy against him. The appellant would not escape the consequences of the negligence of the counsel. The appellant had not explained the reason for the non‑compliance of the order." Muhammad Shabbir v. Haji Ghulam Sabir 1987 C L C 1189 in this case in respect with the plea that the tenant was misled by the advice of his counsel in the matter of making a deposit as to the rent in accordance with the tentative order no weight was given since that was neither raised before the Rent Controller in reply to an application of the landlord for striking off the defence nor was raised before the appellate Authority so the tenant could not be permitted to raise such a plea for the first time in a second appeal before the High Court. Khizar Abbas v. Shahid Hussain 1987 C L C 674 in which it has been held as to the application of Ghulam Mohammad Khan Lundkhor v Safdar Ali P L D 1867 S C 530. "'The present case, according to me is clearly distinguishable because the appellant in the first instance has pleaded miscalculation on his part, which in my opinion, could only occur due to his negligence and not for reasons unavoidable or beyond his control".

9. The original order as passed on 5‑6‑1984 by the learned Additional Rent Controller is being reproduced here. The order is in vernacular which is to the effect that the respondent (appellant) is directed to deposit the rent in Court from 1st of January, 1983 upto May, 1984 at the rate of Rs.300 per month, the total amounting to Rs.5,100 by 16th July, 1984 and in future the rent of every month at the rate of Rs.300 before the 5th of each month. The order as passed is not clear in its terms. It gives the impression that the direction as to the future rent co‑relates with 16th July, 1984 unless one goes deep into that deposit the period of arrears having been fixed since the appellant was required to deposit the arrears by 16th July, 1984 and before that the rent for the month of June was to fall as due, therefore, the learned Additional Rent Controller ought to have said after saying that the tenant was to pay the arrears by 16‑7‑1984 and the future rent from the month of June onward was to be paid before the 5th of every month so as to make the order more clear regarding its term. Even if such an order after recording is read out to a party or its counsel the mention of the date 16‑7‑1984 with the latter direction is likely to confuse unless a concentrated view of the recorded order is taken. One thing which distinctly goes to the credit of the appellant is that he deposited Rs.5,100 within time and such a person would ordinarily not omit to deposit the rent of one month (i.e. for the month of June) which had also become due before the said date. It appears to be case of mis-conception as to the direction generated by the order itself, therefore, the position taken .up by the appellant cannot be brushed aside simply by observing that the plea so raised was an afterthought because the learned Additional District Judge had remanded the case for the matter to be decided afresh after framing the issues and recording the evidence of the parties. This appeal is accepted, the impugned order is set aside and the case is remanded to the learned Additional Rent Controller, Cantonment to decide it on merits. In the circumstances there is no order as to costs. A.A./F.‑43/L Appeal accepted.