1988 PLP 1018 (MLD)

I propose to dispose of F.RA. No.385/86 and F.RA. No. 386/86 by this judgment as the same involve common questions of law and the facts of the two cases are also more or less similar. The appellants who were tenants in respect of the separate tenements situated in the premises known as Ghousia Manzil, situated on Plot No.26/168, Drigh Road, Karachi are aggrieved by the two orders, separately passed by the learned Rent Controller Cantonments, Karachi, dated 29‑4‑1986, under section 17(9) of the Cantonments Rent Restriction Act, 1963, striking off the appellants' defence and directing them to handover vacant possession of the demised premises to the respondent/landlord within sixty days of the passing of the impugned order. Admittedly the two appellants who are mother and daughter inter se had failed to comply with the tentative Rent orders earlier passed by the learned Controller on 10‑10‑1980, separately ordering the appellants to deposit arrears of rent and also future monthly rent before the fifth of each succeeding month. Admittedly, default had been committed by the two appellants as rent for the months of July, August and September, 1981 had been deposited by them on fifth August, fifth September and sixth October, 1981 respectively. The respondent then filed applications seeking orders under section 17(9) of the aforesaid Act against which the appellants separately filed their objections. In the objections filed on behalf of the appellant Mst. Khurshid Begum, it was stated by her that she had been suffering from high blood pressure and therefore, she could not deposit the rent in time as directed by the learned Controller. She had also produced two medical certificates issued by one Doctor Mushtaq Ahmed according to which she was found to be suffering from the aforesaid ailment on 4 8‑1981 and 5‑10‑1981. The allegations in respect of the default allegedly committed by her during the month of September, 1981, were also denied as according to her the 4th of September, which was the last day for compliance with the order of the learned Controller, had fallen on a Friday which was a holiday, therefore, the rent was deposited on 5th September which was the next opening day of the Court. According to the case of appellant Mst. Zeenat in F.RA. No.386/86, she was a pardanasheen lady and the rent for the demised premises was being deposited on her behalf in the Court by her mother, the appellant in F.R.A. No.385/86. The other reasons given by her in respect of the alleged default are the same. On the basis of the aforesaid facts, although the commission of a technical default has not been denied by Mr. Abdul Majid, but according to him, there was no failure on the part of the appellants to comply with tentative rent order. The contentions of Mr. Abdul Majeed are not without force. The two certificates issued by Doctor Mushtaq Ahmed, dated 4‑8‑1981 and 5‑10‑1981 respectively, were placed on record of the case by the appellant which clearly support the learned counsel's contention. Reference to the two certificates can also be found in the written arguments filed on behalf of the appellants before the learned Controller. The other contention of Mr. Abdul Majeed that the fourth of September, 1981 had fallen on a Friday also appears to be correct as the same has been verified from the calendar. Failure to do something imports element of negligence and default and means something more than a mere non‑compliance as it was held in the case of Visumal Chetumal Khilnani v. Ali Bakhsh P L D 1968 Kar.

521. Reliance in this case was placed on the case Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 S C 530 wherein similar observations have p been made by the Supreme Court. In the instant appeal, admittedly, appellant Khurshid Begum was depositing rent on behalf of the other appellant Mst. Zeenat and according to the medical certificate referred to above the former was suffering from high blood pressure at the relevant time. Under the circumstances, the explanation offered by the appellants in their respective affidavits was sufficient to save them from the penal consequences of default as provided in section 17(9) of the aforesaid Act. Consequently, the findings of the learned Controller in this respect do not appear to be correct. Mr. Mirza A. Rasheed has, however, pointed out that Doctor Mushtaq Ahmed had not been examined as a witness by the appellants in support of the aforesaid certificates issued by him. After considering the circumstances as pointed out above, I find it necessary that this case should be remanded to the learned Controller for fresh finding on the aforesaid issue on the basis of the evidence already brought or which may be brought by the parties on the record of the case. As a result these two appeals are allowed and the two cases are remanded to the learned Controller for fresh decision. Both the parties will be at liberty to lead fresh evidence before the learned Controller after which he may ' pass an order as expeditiously as possible and in no case later than three months after receiving the record of the case. Mr. Abdul Majeed and Mr. Mirza A. Rashid, learned counsel for the parties, undertake that both the appellants as well as the respondent will appear before the learned Controller on 4‑1‑1988. There will be no order as to costs. AA./K‑66/K Cases remanded.