P L D 1996 Quetta 9 (PLP)

This appeal is directed against order dated 5th June, 1995 passed by learned Civil Judge‑II‑cum‑Controller, Quetta.

2. Facts briefly mentioned are that towards 8th September, 1994 appellant instituted proceedings for the eviction of respondent from two shops bearing Nos. 9 and 10, Javed Book Depot, situated at Gurdat Singh Road, Quetta. The eviction was sought on personal bona fide requirement and default in payment of rent from June, 1993 onwards. Respondent filed written statement on 20th October, 1994 vehemently repudiating the claim of appellant. Mode regarding collection of rent was also duly explained.

3. It may be seen that on 20th October, 1994 Controller has passed an order under section 13(6), Balochistan Urban Rent Restriction 'Ordinance directing the appellant to deposit rent due and future rent. The order is reproduced below in extenso. Thereafter considering the pleadings learned Controller framed issues and gave parties opportunity for leading evidence in support of their respective claims. Admittedly substantial evidence has already been recorded in this matter, before the trial Court. However on 23rd April, 1995 appellant submitted an application praying for striking off the defence of respondent pleading non‑compliance with order dated 20th October 1994. Respondent opposed said application and filed rejoinder on 23rd May 1995. On hearing the arguments learned Controller, rejected above‑referred application by means of order dated 5th June, 1995 which is reproduced below: (Defence struck off) Last‑mentioned order has been challenged through present appeal

4. Mr. Imranul Haq, Advocate for appellant emphatically contended that respondent had failed to comply with order of Controller, dated 20th October 1994 because deposit in favour of appellant's father cannot be construed as valid tender. According to him Controller had acted illegally by ratifying above referred deposit. Reliance was placed on the reported judgments in cases: (i) Khawaja Ghulam Mustafa v. Mian Waqar Ahmad (PLD1980SC9). (ii) Mrs.Zubeda Begum, v. Mrs. S.T.Naqvi (1986 SCMR 261) (iii) Bahadur Khan and others v. Ch.Muhammad Hussain and others (1991 SCMR 429).

5. Whereas Mr. Muhammad Hashim Kakar, Advocate opposing the appeal argued that father of appellant had been collecting rent concerning demised‑premises from respondent, therefore, on his refusal the same was deposited with Controller. Learned counsel stressed that as per practice the rent had been validly tendered. He maintained that learned Controller himself had ratified said payment regarding arrears through order dated 20th October, 1994 therefore at least bona fide mistake was caused while interpreting it. Reliance was placed on cases: (i) Maj. (Retd.) A.S.K. Samad v. Lt. (Rted.) A. Hussain and others (1987 SCMR 1013). (ii) Agha Abdul Majeed v. Inam Waris (PLD 1994 Karachi 457).

6. Firstly question for consideration would be whether present appeal against order rejecting application for striking off defence is maintainable. Undisputedly appeal accepting application for striking off defence and directing ejectment of tenant is appealable. Section 15(j) enjoins that order passed by Controller finally disposing of application under section 13 of Balochistan Urban Rent Restriction Ordinance (hereinafter referred as the Ordinance) is challengeable by way of appeal. Relevant provision is reproduced below ‑‑ "

15. Appeal.‑‑(1) Any party aggrieved by an order of the Controller finally disposing of an application made under section 4, section 10, section 12, section 13 of this Ordinance may within thirty days of the date of such order prefer any appeal in writing to the High Court. Provided that no appeal shall lie against an order made by a Controller under subsection (6) of section 13 determining approximately the amount of rent due or the rate of rent and directing the tenant to deposit all the rent due: Provided further that no appeal shall lie from an interlocutory order passed by the Controller. (2) .. (3) . (4) .

7. It, is now settled. that mere tentative determination of rent and direction regarding its payment is not appealable under the law, because said order is of interlocutory nature and proviso to section 15(l) of the Ordinance constitutes clear bar concerning maintainability. Whereas dismissal of application for striking off the defence, indirectly operates as final disposal. Evidently instances would not be lacking where Controller may erroneously or arbitrarily reject said application. In such eventuality if no remedy is deemed available, primary object and spirit of law regulating striking off the defence would be frustrated. It is well known what cannot be done directly may not be achieved indirectly. Therefore, when acceptance of application regarding striking off defence is appealable the converse would be equally maintainable. Thus, it can be safety assumed, that whether an application for striking off defence is accepted or rejected, the appeal would be competent. In " view, I am supported by the observations in case Mrs. Zubaida Begum v. Mrs. S. T. Naqvi (1986 SCMR page 261).

8. Now adverting to main issue. It may be seen that learned Controller, while passing order regarding deposit of rent expressly observed that record had , disclosed proper deposit of rent in Court, by respondent from January 1994 till December, 1994. Factually rent for said period was deposited in the name of appellant's father (Haji Niaz Muhammad) who undisputedly prior to institution of eviction proceedings used to recover rent from respondent concerning demised premises.

9. Normally rent deposited in favour of stranger or persons other than landlord, is not deemed valid tender. This aspect has been eluciated by observation in judgment reported as (i) 1991 SCMR 429 (Bahadur Khan and others v. Ch. Muhammad Hussain and others) and (ii) Malik Manzoor Ahmad v. Sardar Muhammad'(1991 CLC 877). Nevertheless before penalizing a tenant it is obligatory for Controller to ascertain whether alleged default was 18 deliberate, contumacious grossly negligent or alternatively for circumstances which were beyond the control of tenant. Following observations in this behalf are sufficiently instructive:‑‑ (i) Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 Supreme Court 530): "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 to the word "default" should mean an act done in breach of a duty or in disregard of/`an order or direction. (ii) Amir Ali v. Mrs. Alima Ahmad (PLD 1981 Karachi 150): "In this regard it may be observed that there is a mark difference between the provisions of section 13(2) and section 13(6) of the Ordinance, whereas in the former case Rent Controller has been given discretion not to grant ejectment application on the ground of non payment of rent within the statutory period if the facts of the case warrant such a conclusion. The words "the Controller may make an order directing the tenant to put the landlord in possession of the building ... .... ... ... ... . have been used in section 13 (2) whereas in section 13(6), it has been provided that if a tenant makes default of a rent order passed under the above subsection his defence shall be struck off and the landlord be put into the possession of the property. The use of the word 'shall' in subsection (6) of section 13 in contrast to the word 'may' in subsection (2) of section 13 clearly indicates that the word 'may' used in the latter subsection is to be construed as 'may' and not as 'shall' and, therefore, Rent Controller has discretion in the matter. Furthermore even while interpreting section 13(6) the High Courts and the Supreme Court of Pakistan have consistently held that in considering the question of default under section 13(6) if Rent Controller is satisfied that the default has occurred for a reason beyond the tenant's control, he may decline to strike off the tenant's defence."

10. Now considering next aspect, it is noteworthy that Controller, while making directions for depositing rent had perused challans placed on record. The deposit made in favour of appellant's father during January, 1994 to December, 1994 was deemed valid. Therefore, said expression could cause at least bona fide mistake for interpreting or complying with above‑referred directions of the Court. Obviously respondent could not be penalized for an Act of Court and would certainly be entitled to benefit of bona fide mistake. Bare order dated 20‑10‑1994 passed by learned Controller indicates that rent till passing of said order stood validly deposited however further liability had commenced from January, 1995 onwards. Record clearly reveals that, respondent has deposited rent from September, 1994 onwards in favour of appellant, which suggests that non‑payment of previous rent was not dishonest, deliberate or contumacious. Even in the rejoinder to application for striking off the defence appellant made categoric offer to deposit afresh, entire amount if so required by the Court. Accordingly I am persuaded to hold the glaring doubt concerning exact term of order for depositing rent existed causing bona fide‑mistake protecting tenant from penal consequences. Observation of following reports provide tremendous guidance for said views: (i) Hashim. Khan v. Ghulam Nabi and others (1973 SCMR 112): 'We have heard the learned counsel for the parties at a considerable length, and we have formed the view that this is not a case of wilful default on the part of the appellant in depositing the rent for the month of May, 1966, within time as directed by the learned Rent Controller. It is correct that the learned counsel for the appellant had interpreted the order of the Rent Controller in his own light and advised the appellant to deposit the entire rent including that for May 1966 before the 15th of July, 1966. The appellant acted on the advice given to him by the learned 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 willful default on his part." (H) Saeedan Bibi v. Ali Hussain (1975 SCMR 261 at 262):. "Mr. M.G. Dastgir learned counsel for the petitioner has contended that it was a case of wilful default and the High Court should not have condoned the delay. He further contended that the case of the petitioner was distinguishable from the case decided by the Supreme Court in Hashim Khan v. Ghulam. Nabi. We have gone through the order of the learned Single Judge and are satisfied that he applied correct principles in this case. It is quite clear from the facts of the case that the respondent acted on the advice given to him by his counsel and in such circumstances he could not be penalized merely because the advice given to him proceeded on a misinterpretation of the Rent Controller's order. We, therefore do not see any reason to interfere with the impugned order. The petition is dismissed. (iii) Sarfaraz Khan v. Muhammad Abdul Rauf (PLD 1969 Karachi 176). (iv) Visumal Chatumal Khilnani v. Ali Bakhsh and others (PLD 1968 Karachi 521). (v) Akhtar Hussain v. Kabir Hussain (1982 CLC 702). (vi) Maj.(Retd.) A.S.K. Samad v. Lt. (Retd.) A. Hussain etc. (1987 SCMR 1013). Additionally principle of law discussed in reported judgments relied upon by learned counsel for respondent supplement above conclusions for resolving the controversy. For the foregoing reasons, I am inclined to hold that order of trial Court refusing to strike off defence of respondent does not suffer from any D infirmity or legal defect. Resultantly appeal is dismissed. Parties are left to bear their own costs. AA./564/Q Appeal dismissed.