P L D 1984 Karachi 168 (PLP)

This Appeal is directed against the Order, dated 14-2-1980 passed by the IInd Rent Controller, Karachi in Rent Case No. 1464/77 whereby the defence of the appellant was struck off.

1. The brief facts of the case are that the respondent filed above mentioned case on 9-5-1977, amongst others on the ground that the appellants failed to pay the rent from 1st August, 1976 till the filing of the case in respect of Quarter No. 403, 1st Floor, Block No. 4 Liaquatabad, Karachi. It was also stated that the monthly rent of the premises is Rs. 180 per month. The appellants defended the case and inter alia pleaded that the rent of the premises is Rs. 140 per month inclusive of electricity charges etc. and that he paid the rent for the period upto February, 1977 and for the months of March and April, 1977 rent was sent through money order but was refused by the respondent.

2. During the proceedings the parties as directed by Rent Controller filed their respective rent accounts to enable him to pass order under section 13(6) of the then West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance, 1959). The respondent/landlord in his statement of rent account stated that a total sum of Rs. 3,420 was due as for the period from 1-8-1976 at the rate of Rs. 180 per month till 28-2-1978 out of which according to the respondent, the appellants had deposited Rs. 1,200 in Small Causes Court Karachi in D. W. No. 312/77. On the other band the appellant disputed the rate of rent and the period for which the rent was due. He further pleaded that he had paid Rs. 1,757 as rent in Distress Warrant Case No. 312/77 in the Small Causes Court Karachi and bad deposited Rs. 1,305 in Miscellaneous Rent Case No 2426 of 1978, is view of the fact that the respondent had refused to accept the rent sent to him by money order. Certain other payments by the appellants were also claimed to have been made to the respondent. The learned Rent Controller after hearing the Advocates for the parties directed the appellants to deposit the arrears of rent and future rent by order passed on 3-8-1978 the material portion whereof reads as follows:- "I pass this rent order tentatively and direct the opponent to deposit Rs. 825 in Court being the arrears of rent from August. 1976 to July, 1978 at the rate of Rs. 145 per month (After deduction of Rs. 1,740 already recovered through D. W.) before 15th December, 1978. The opponent will be entitled for the adjustment of the amount if he has already deposited in Court. The opponent is further directed to deposit future monthly rent commen cing from the month of August, 1978 at same rate of Rs. 145 per month in Court before 15th of each succeeding month."

3. On 18-10-1979 an application was filed by the respondent under section 13(6) of the Ordinance, 1959 praying therein that the defence of the appellants be struck off as they had failed to deposit the rent for the months of July, August and September, 1979 as per orders, dated 3-8-1978. The application was contested and a plea was taken that no default had been committed. Briefly the case of the appellants was that they had deposited Rs. 1,757 in D.W. No. 312/77, Rs. 1,420 in Miscellaneous Rent Case No. 2426/78 and a total sum of Rs. 1,160 on various dates in the ejectment case. The appellants accordingly contended that as against Rs. 825 directed to be deposited as arrears of rent upto July, 1978 vide order, dated 3-8-1978 after adjusting Rs. 1,4_'0 already deposited in Miscellaneous Case No. 2726/78, they would be found to have deposited a sum of Rs. 595 in excess which remained unadiusted and would be sufficient to cover another period of 4 months and thus the rent shall be deemed to have been paid till July, 1979. For the period thereafter, they stated that monthly rent was deposited regularly. On behalf of the appellants it was thus argued that they had not committed any default in compliance of the order, dated 3-8-1978 passed by the learned Rent Controller.

4. The above plea did not find favour with the learned Rent Controller who by order passed on 14-2-1980 held that the appellants had committed wilful default and that no plausible explanation was given by them and consequently their defence was struck off.

5. The above order of the learned Rent Controller had been challenged in this appeal.

6. Mr. Chaudhry Nazir Ahmad, the learned counsel for the appellants in the first place submitted that the appellants/tenants had not committed breach of the order, date, 3-8-1978, passed by the learned Rent Controller directing them to deposit arrears of rent and future rent. According to the learned counsel, the learned Rent Controller by the order, dated 3-8-1978 in view of the disputes as to the rate of rent, period of rent, and various amounts claimed to have been paid by the appellant determined approximate amount of arrears of rent at Rs. 825 which amount they were, in express terms, directed to deposit as arrears of rent from August, 1976 to July, 1978 though the rate of rent was treated at Rs. 145 per month. The learned counsel submitted that as per orders, dated 3-8-1978 though the appellants had been directed to deposit Rs. 825 in Court as arrears of rent before 15-12-1978 the appellants in fact had deposited Rs. 525 in excess which was sufficient to clear rent for the period upto July, 1979, and on 10-7-1979 they deposited Rs. 150 which would cover rent for August, 1979 while rent for September, was deposited on 6-10-1979 and thereafter also no default in deposit of rents was committed.

7. The learned counsel for the respondent conceded that if it is held that as per directions of the Rent Controller contained in order of 3-8-1979, the appellants were required to deposit Rs. 825 only for period upto July, 1978 then they would be deemed to have committed no default in deposit of the rent. He however submitted that the learned Rent Controller has mistakenly mentioned the figure of "Rs. 825" as arrears of rent from -August, 1976 to July, 1978, to be deposited before 15-12-1978. According to the learned counsel, the Rent Controller had directed the appellants to deposit in Court the arrears of rent from August, 1976 to July, 1978 at the rate of Rs. 145 per month which would amount to Rs. 3,480 and not Rs.

825. According to learned counsel the last figure mentioned was obviously due to some mistake on the part of the Controller of which appellants could not be allowed to take any advantage, as they could have ascertained the correct amount of arrears themselves.

8. The important question which, therefore, arises in this appeal for consideration is whether the appellants are guilty of committing default in compliance of the order dated 3-8-1978. In order to appreciate the arguments of the learned counsel for the appellant we may first refer to subsection (6) of section 13 of the above mentioned Ordinance which requires the Controller to "direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case before 15th day of each calendar month the monthly rent due from him". It is further provided that in case there is any dispute about the amount of rent due or the rate of rent then 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. The said subsection (6) then proceeds to lay down the consequences of default, in the following mandatory terms ; "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 respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case:

9. A perusal of the provisions of subsection (6) would show that the same are of drastic and serious nature, a disobedience whereof lead to penal l consequences and, therefore, need to be construed strictly. The object underlying as laid down by the Honourable Supreme Court in' the case Ghulam Muhammad Khan Lundkhor v. Sardar Ali (P L D 1967 S C 530), 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. It was further observed in the above case while interpreting the word "default" that :- "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 not, in any 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."

10. In the light of the above-accepted principles we now proceed to examine if the appellants committed any default in compliance of the order dated 3-8-1978, which could lead to striking off their defence and con sequent eviction from the property in their possession. The question which assumes importance is whether the appellants committed default on the order passed by Controller under section 13(6). A reading of the above-mentioned order dated 3-8-1978 leaves no doubt that the appellants were directed to deposit Rs. 825 as arrears of rent. We cannot lose sight of the fact that not only there were disputes, as to rate of rent and the period for which rent was claimed but there were serious differences between the parties as to what amount had already been paid to the respondent by the appellants. Thus, it cannot be said, as contended, by the learned counsel for the respondent that on the facts and circumstances of the case the only conclusion possible is that the Rent Controller intended to direct the tenants to deposit Rs. 3,480 instead of Rs. 825 as mentioned in the order, as the arrears of rent. Such an inference obviously cannot be drawn in view of the different versions of the parties, without going into disputed questions of fact. On the other hand, there is force in the contention of the learned counsel for the appellants, that they legitimately believed that they were required to deposit only Rs. 825 as the arrears of rent with right to make adjustment as provided in the order itself. It is not disputed that each and every non-payment of rent is not to be meted out with the consequence of striking off the defence. It is only the default in compliance of the "order" of the Controller under section 13(6) which attracts the penal action. For the reason that such order was substantially complied with and in fact excess is found to have been deposited the appellants cannot be penalised for non-deposit of an assumed amount of arrears of rent, to be calculated by the tenant, which would amount to clothe a tenant with authority to determine for himself earnestly the amount due which otherwise under section 13(6) is the exclusive jurisdiction conferred upon the Rent Controller. Thus, I do not find myself in agreement with the learned counsel for the respondent with the proposition advanced by him.

11. The case can be looked from yet another aspect as well namely that even if it be assumed (for the sake of argument) that the Controller by mistake mentioned the figure of Rs. 825 as the arrears of rent to be deposited by the appellants who acting bona fide upon the said order complied with the same, they certainly cannot be penalised for a mistake committed by the Court. The learned counsel for the appellants rightly referred to the case of Inshahah Begum v. Shamim Akhtar (P L D 1983 Lab. 610), where a learned Single Judge of the High Court of Lahore while holding that the tenant could not be penalised for his default when there was a clear direction issued to the tenant by the Controller, observed as follows :- "Learned counsel for the tenant has also submitted that on 1-I1-1975 only the parties appeared in Court and not their Advocates, and the tenant was misled by the orders that were passed on that date. There was no intention on her part to commit any default. He also relies on the maxim actus curiae neminem gravablt, an act of Court shall prejudice no man, which was noticed and applied in Mian Irshad Ali v. Government of Pakistan P L D 1975 Lah.

7. In this judgment the case of Nallini Kanta Ray v. Kamaraddi and others A I R 1.933 Cal. 239 is cited, the facts of which case were that a decree was by mistake dated the 16th of February, 1929, instead of 11th February, and the decree-holder being misled thereby applied for execution beyond three years on the 15th February, 1939, and it was held that the maxim applied and the decree ought to be regarded as having been passed on the 16th of February, 1929. I hold that the maxim applies to the circumstances of the present as well."

12. I may also refer here with advantage to the judgment in the case of Ghulam Nabi v. Hashim Khan (1973 S C M R 112) where the honourable Supreme Court in a case of default committed by the tenant on account of misinterpretation of the order of the Rent Controller regarding the date of deposit of rent on the counsel's advice resulting in mistake, observed as follows :- "The appellant acted on the advice given to him by the counsel and he could not be penalised merely because the counsel's advice proceeded on a misinterpretation of the Rent Controller's order. In any event, we feel that it was a case of a bona fide mistake both on the part of the counsel and the appellant in the construction of the order of the learned Rent Controller and there was thus no case of wilful default on his part."

13. The upshot of the above discussion is that the appellants could not be deemed to be defaulters as they did not fail to comply with the order passed by the Controller under section 13(6) on 3-8-1978 and that the drastic. action of striking off their defence would not be called for as it has been shown that the alleged non-compliance was due to unavoidable circumstances and that they could not be penalised for mistake (if any) on the part of the Controller, though the case of the appellants is that the amount mentioned in the order was the correct amount, in view of disputes between the parties and I am refraining myself from going into these disputed questions as 1 find that the appeal could be disposed :.f otherwise for the reasons discussed above.

14. The appeal accordingly succeeds and the impugned order, dated 14-2-1980 is set aside, and the case is remanded to the concerned Rent Controller with direction to dispose of the same on merits according to law. In the circumstances, there shall be no order as to costs. M. B. A. Appeal accepted.