P L D 1968 Karachi 521 (PLP)

Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530 rel. (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959), Ss. 13(61 & 15‑Deposit of monthly rent in compliance of ‑order of Rent Controller‑Question whether default was negligent or otherwise‑Question of fact‑Standi concluded by order of first appellate Court‑Cannot be disturbed in second appeal‑Civil Procedure Code (V of 1908), S.

100. A. Gha, far v. State P L D 1965 Kar. 367 and Muhammad ‑Shaft v. Allah Dino P L D 1966 Kar. 523 rel. Iqbal Ahmad Ansari for Appellant. Naimuddin for Respondents. Date of hearing : 26th January 1968. The dispute relates to a flat in building known as Narinder Nivas, opposite Regal Cinema, Karachi. The three respondents, who are brother and sisters, are joint tenants of this flat. The appellant brought the eviction proceedings against them, principally on the ground of his personal requirements. An order was made by the Rent Controller for deposit of arrears of rent and current rent. There is no dispute that arrears of rent were deposited within the prescribed time, but it is contended that the rent for the month of May 1964, was not deposited before the 5th of June, and the explanation given was that June was a month of vacation in the District Court, and accordingly the respondents were under the impression that deposits would not be accepted during vacation. However, the respondents had deposited the rent for the month of May and June, on the 4th July 1964. Another ground for failure to deposit the rent in June was that the respondent No. 1 himself was out of Karachi and his wife, who was entrusted with the work of deposit of rent, could not attend the Court due to the illness of her young child. This ground was supported by a medical certificate. Notwithstanding these pleas, the Rent Controller struck off the respondents' defence and directed them to vacate the premises in dispute. This order was, however, reversed in appeal by the Additional District Judge, who took the view that there was no wilful default on the tenants' part. The question of defence being struck off on the ground of default in payment of rent has been considered by their Lordships of the Supreme Court, in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (P L D 1967 S C 530), where Hamoodur Rehman, J., stated that the word "default" imports an element of negligence or fault and means something more than mere non‑compliance, and, further, to establish default one must show that the non‑compliance has been due to some avoidable cause. It was further observed that it is not lightly to be presumed that the law intends to cause injustice or hardship. In view of this decision, it cannot be said that the default of the respondents is attributable to their negligence or fault. There is no doubt that during the month of June, which is a vacation month for Civil Courts in Karachi, no civil work is at all transacted except urgent work. The respondents were justified in presuming that deposit of rent will not be accepted during the vacation. Their bona fides ca also be judged from the further fact that they deposited the rent for May and June 1964, on 4th July. The contention that the deposit should have been made on 1st July, when the District Court re‑opened after vacation, loses force in view o the medical certificate on record that the child of the respondent No. 1 was very ill then and consequently, respondent No. I being out of Karachi, his wife could not attend the District Court for this purpose. In the circumstances, it cannot be held Y that the respondents were negligent in depositing rent in compliance with the order of the Rent Controller. Moreover, v. the question whether the default was negligent or otherwise, is a question of fact and stands concluded by the order of the First Appellate Authority, as held in the case of A. Ghafar v. N State (P L D 1965 Kar; 367) and Muhammad Shafi v. Allah Dino (P L D 1966 Kar. 523). In the Circumstances the appeal is dismissed. However, the parties are left to bear their own costs. A. E./K. B. A. Appeal dismissed.