1999 PLP 795 (CLC)

Mst. Fatimun Nisa and others v. Mrs. Zubaida 1990 SCMR 750 distinguished. Messrs Crescent Publicity Service v. S.M. Younus and others 1980 SCMR 779; Muhammad Jan v. Khadim Hussain 1973 SCMR 243; Muhammad Yousuf v. Muhammad Bashir and others 1990 SCMR 557; Ziaullah Shah v. Syed Riaz Ahmad 1981 SCMR 538; M. Nazir v. S. Shaukat Ali 1982 SCMR 985; Messrs Platinum Insurance Co. Limited v. Messrs State Life Insurance Corporation of Pakistan 1991 MLD 1256; Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others 1987. SCMR 25; Raja Auranzeb v. Additional Rent Controller, Lahore 1985 SCMR 876; Hussain Trading Company v. Jalal Brothers (Pvt.) Limited 1994 SCMR 159; Messrs Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700; Malik Mehmood v. Muhammad Yousaf Khan 1988 CLC 675; Tanveer Ahmad v. Mst. Abida Yasmin Butt 1996 CLC 1068; Islam Raffat Siddiqui v. Mahmood Abid Rizvi 1984 CLC 1341; Mst. Nasira Sultana v. Sultan M. Ahmad and another 1991 CLC 527; Sher Ali v. Mst. Hashmat Aziz 1990 MLD 1869; S.M. Hamid Ali and 2 others v. C.R. Machado PLD 1976 Kar. 817; Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1; Maqbool Elahi v. S. Anwar Tauheed 1984 CLC 626; Abdul Malik Shamsi v. Muhammad Shamim 1986 CLC 540; Ramz Ali Sangi v. Kamal Ahmad Nomani 1987 CLC 563; Dr. Shafique Ahmad v. Mst. Surraya Sultana 1996 CLC 399 and Habib Bank Limited v. Amanullah 1986 CLC 2917 ref. Hashmat Ali Habib for Appellant. Iftikhar Javaid Qazi for Respondent Date of hearing: 10th November, 1998 This is an appeal under section 24 of Cantonments Rent Restriction Act, 1963, (hereinafter called the Rent Act) directed against an order, dated 25‑8‑1996 passed by Additional Controller of Rents Clifton, Karachi in Rent Case No. 106 of 1995 (Rafiq Ahmad v. Muhammad Ali Tauqir) whereby an application under section 17(9) of the said Act was allowed and the appellant/tenant was ordered to vacate the premises within thirty days from the date of impugned order. I have heard learned counsel for the parties and perused the record and proceedings of the case. The facts in brief of the case are that as per terms of tentative rent order, dated 5‑6‑1996 the appellant was directed to deposit arrears of rent from September, 1995 to May, 1996 (nine months) at the rate of Rs.5,500 per month amounting to Rs.49,500 within fifteen days with further directions to deposit rent for the month of June, 1996 before 5th July, 1996 and rent for subsequent months to be deposited before 5th of each succeeding calendar month. It is stated that the arrears of rent amount to Rs.49,500 was not deposited within fifteen days but only part of amount of Rs.19,500 was deposited on 19‑6‑1996 and further remaining arrears of amount of Rs.30,000 was deposited on 3‑7‑1996 making total of Rs.49,500 and rent for the month of June, 1996 which was to be deposited on or. before 5th July, 1996 was deposited on 9thIJuly, 1996. As the deposit of arrears of rent was not made by 20th of June, 1996 and rent for the month of June, 1996 was not deposited on or before 5th July, 1996, therefore, for non‑compliance of the order passed under subsection (8) of section 17 of Rent Act, the impugned order under subsection (9) of section 17 of said Act was passed. The contention of learned counsel for the appellant is that the appellant was not knowing the contents of rent order till 12‑6‑1996 and further he suffered huge losses in his business consequently he made an application for extension of time so as to make compliance of the tentative rent order, hence the alleged default cannot be said to be wilful and due to negligence on the part of the appellant. He has placed reliance upon Mst. Fatimun Nisa and others v. Mrs. Zubaida 1990 SCMR 750 in support of his contention. He further stated that if he had no intention to deposit the rent he would not have deposited the full amount of arrears and rent for the month of June, 1995 subsequently. Learned counsel for respondent has argued that there has been wilful default in the compliance of the order, dated 5‑6‑1996 passed by the Rent Controller in respect of arrears as well as in respect of future rent for the month of June, 1996 and the appellant has been negligent in making compliance of order of the Court. He has further submitted that after the passing of the tentative rent order, no extension in the period of deposit of rent. could be made under the law so also no condonation with regard to delay in deposit could be allowed by the learned Rent Controller. In support he has placed reliance upon (i) Messrs Crescent Publicity Service v. S.M. Younus and others 1980 SCMR 779, (ii) Muhammad Jan v. Khadim Hussain 1973 SCMR 243, (iii) Muhammad Yousuf v. Muhammad Bashir and others 1990 SCMR 557, (iv) Ziaullah Shah v. Syed Riaz.Ahmad 1981 SCMR 538, (v) M. Nazir v. S. Shaukat Ali 1982 SCMR 985, (vi) Messrs Platinum Insurance Co. Limited v. Messrs State Life Insurance Corporation of Pakistan 1991 MLD 1256, (vii) Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others 1987 SCMR 25, (viii) Raja Aurangzeb v. Additional Rent Controller, Lahore 1985 SCMR' 876, (ix) Hussain Trading Company v. Jalal Brother (Pvt.) Limited 1994 SCMR 159, (x) Messrs Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700, (xi) Malik Mehmood v. Muhammad Yousaf Khan 1988 CLC 675, (xii) Tanveer Ahmad v. Mst. Abida Yasmin Butt 1996 CLC 1068, (xiii) Islam Raffat Siddiqui v. Mahmood Abid Rizvi 1984 CLC 1341, (xiv) Mst. Nasira Sultana v. Sultan M. Ahmad and another 1991 CLC 527, (xv) Sher Ali v. Mst. Hashmat Aziz 1990 MLD 1869, (xvi) S.M. Hamid Ali and 2 others v. C.R. Machado PLD 1976 Kar. 817, (xvii) Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan PLD 1983 SC 1, (xviii) Maqbool Elahi v. S. Anwar Tauheed 1984 CLC 626, (xix) Abdul Malik Shamsi v. Muhammad Shamim 1986 CLC 540, (xx) Ramz Ali Sangi v. Kamal Ahmad Nomani 1987 CLC 563, (xxi) Dr. Shafique Ahmad v. Mst. Surraya Sultana 1996 CLC 399 and (xxii) Habib Bank Limited v. Amanullah 1986 CLC 2917. In the cited case of Mst. Fatimun Nisa 1990 SCMR 750 the appellant was not aware of the order of tentative deposit as the appellant/tenant had failed to attend the Court on that day due to his illness and in support he has submitted medical certificate of his ailment on 28‑10‑1981, therefore, delay in deposit of rent was condoned in the exercise of discretionary jurisdiction of the High Court. The facts of instant case are quite different. In the instant case, the appellant came to know about the tentative rent order on 12‑6‑1996 whereas he had to make compliance of the tentative order by 20‑6‑1996, therefore, he had sufficient time to make compliance and further there was no medical certificate that the appellant was ill on the date when the order was passed, therefore, the principle applied in the said cited case would not be applicable in the instant case. Admitted position in the instant case is that the full amount of arrears amount of Rs.49,500 was not deposited by 20‑6‑1996 but the only part of the amount viz. a sum of Rs.19,500 was deposited on 19‑6‑1996 and the remaining amount was deposited on 3‑7‑1996, thus, there was default in making compliance of the terms of tentative rent order. So far rent for the month of .tune, 1996 which was to be deposited before 5th July, 1996 was deposited on 9‑7‑1996, no justification has been shown as to why there was delay in making deposit for the said month. Under the law even one day's delay in making deposit of rent has been held to be default within the meaning of subsection (9) of section 17 of Rent Act. The case‑law cited by the counsel for the respondent fully supports the contention of learned counsel for the respondent that there was wilful default in respect of deposit of arrears and future rent in terms of tentative rent order. In the instant case, nothing has been shown whereby the said default could be said to be unavoidable and beyond the control of the appellant/tenant. Admittedly there is an element of negligence on the part of the appellant in 8 making compliance of the tentative rent order. The Rent Controller under the law had no power to extend the time or condone the default, therefore, no exception could be taken to the finding of Rent Controller, consequently appeal has no merit which is hereby dismissed. However, two months period is given to the appellant to vacate the premises subject to condition that the appellant would deposit rent in the office of Additional Controller of Rents. Q.M.H./M.A.K./M‑393/K?????? Appeal dismissed.