Striking off defence
Striking off defence legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Petitioners / tenants claimed to be owners in possession of premises on the basis of agreement to sell executed by respondent / landlord and suit for specific performance of that agreement to sell was pending adjudication
Validity
Ownership of the property was claimed and civil suits were pending
Only course available to petitioners / tenants was to pursue the civil suits and they had to vacate the premises in question
In case of any favourable judgment, petitioners / tenants could claim possession of the property afterwards but could not be allowed to continue possession of property
Respondent / landlord was successful in establishing relationship of landlord and tenant between the parties and that there was a default in complying with tentative rent order
Supreme Court declined to interfere in eviction order passed by all three Courts below, who were justified in striking off the defence of petitioners / tenants and directing them to vacate the premises and hand over peaceful possession to respondent / landlord
Petition for leave to appeal was dismissed and leave to appeal was refused.
Briefly, respondent-mother instituted a suit before the family court seeking maintenance from her sons on the ground of dependency and lack of independent income
During pendency of the proceedings, the family court fixed interim maintenance and directed payment by the 14th of each month
Upon alleged non-payment, the family court struck off the defence under S.17-A of the Family Courts Act, 1964 while decreeing the suit and initiating coercive proceedings
The appeal against said orders was dismissed by the district court leading to the filing of the constitutional petition
Pivotal questions requiring determination before the High Court were as to "whether a parent could institute a suit for maintenance against children before the family court"?; and, "whether S.17A of the Family Courts Act, 1964 was applicable to maintenance claims filed by parents"?
Held: Claim of maintenance by dependent parents against their sons, being a family dispute rooted in familial obligations, squarely fell within the domain of "family affairs" and was, therefore, well within the jurisdiction of the family court
As statutory provisions did not expressly define the nature of relationship between the person claiming maintenance and the party against whom maintenance was sought; principles of Islamic law which were the primary source governing family relations had to be applied
Under Islamic jurisprudence, the obligation of sons to maintain their dependent parents squarely fell within the scope of maintenance
Family Court possessed jurisdiction to decide all ancillary issues necessary for complete and effective adjudication of disputes within its domain
The 'Schedule' to the Family Courts Act, 1964 was inclusive and had to be interpreted purposively to advance the true spirit and objective of the statute
A mother or father, if left dependent and without means, could competently invoke jurisdiction of the family court to seek maintenance from their sons
Section 17-A was not attracted to the present dispute wherein a mother had sought maintenance from her sons
However, the authority to pass a final decree for maintenance inherently included the power to grant interim relief pendente lite as an ancillary or necessary measure to prevent destitution during litigation, therefore, the family court was fully empowered to fix and direct the payment of interim maintenance during the pendency of a suit filed by any parent and enforce such judicial orders
Impugned orders of the courts below were set aside and the matter was remanded to the family court to decide the same afresh
Constitutional petition was allowed, in circumstances.
Petitioner/ landlord was aggrieved of judgment passed by High Court setting aside eviction order passed against respondent/tenant to vacate rented premises
Validity
Oral testimonies and documentary evidence produced by petitioner/landlord remained unchallenged, as right of respondent/tenant to cross-examine petitioner's/landlord's witnesses was struck off and that order attained finality, having remained unchallenged by respondent/tenant
In absence of any rebuttal or cross-examination, evidence led by petitioner/landlord stood uncontro-verted
Material on record conclusively established that petitioner/ landlord was lawful owner of the property
Rent proceedings, by their very nature, are summary in character and are intended to ensure swift and efficient resolution of landlord-tenant disputes, particularly in cases of default, so as to safeguard landlord's Constitutionally protected right to property
Petitioner/landlord remained embroiled in litigation for over seven years merely to recover possession of his property
Course of delay ran counter to the foundational objectives of rent legislation and summary adjudication
Such undue delays not only eroded Constitutional rights of property owners but had also given rise to broader economic and social justice concerns
For landlords, prolonged litigation entails financial strain, loss of rental income, and an inability to utilize their property for productive purposes, which can hinder economic growth
Conversely, tenants facing eviction proceedings often live in uncertainty, which can affect their social and economic stability
A just legal system must, therefore, ensure an equitable balance between rights of landlords and tenants, a balance that is fundamentally disrupted when cases are permitted to stagnate in judicial pipeline
Supreme Court set aside judgment passed by High Court and restored that of Lower Appellate Court, which had rightly upheld the claim of petitioner/landlord
Supreme Court directed respondent/tenant to vacate property in question within two months
Appeal was allowed.
Contention of the tenant was that he had been evicted by playing fraud with the Court, as there was no relationship of landlord and tenant between the parties, therefore, the possession of the tenement was liable to be restored to the tenant for the reason that tentative rent order was ambiguous and the deposit of rent in MRC instead of in the rent case was neither willful nor deliberate rather the same was a mere technical defect
Validity
High Court while relying on judgments of Supreme Court held that plea of non-compliance of an unambiguous orderwas unjustified, thus, the default was willful and deliberate and not a technical one
Once the tentative rent order is passed, whether it is considered as just, valid and fair, or not,the same is to be complied with, subject to a right to challenge the same before the forum provided under the law
There was no dispute about the relationship of landlord and tenant between the parties, nor, any fraud was played upon the Court by the landlords while filing the two applications, resulting in the eviction of the tenant
Besides, couple of years had already passed since handing over the possession to the landlords
Tenant had committed a will ful default
Constitutional petition was dismissed accordingly.
Trial Court struck off the defence of appellant and directed appellant to vacate the shop and deliver its possession to respondents
Held, that Trial Court in the presence of both the parties passed the order for payment of monthly rent, by which appellant was directed to deposit the monthly rent at the rate of Rs. 10000/- per month before 5th day of each month
Record further transpired that the order under S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959 was not complied with, as such, Trial Court vide order struck off the defense of appellant/tenant and directed him to vacate the rented premises and hand over the vacant possession to respondent/applicant
Appellant placed on record receipts regarding deposit of rent which contained the details of rent deposited by him, which showed that in the month of April 2021, he deposited the rent amount of Rs.8000/ on 12th April instead of Rs.10000/-and deposited an amount of Rs.20000/- for the months of May and June 2021 on 15th June 2021,meaning thereby that appellant did not deposit the monthly rent of May 2021 within time
Further appellant deposited the rent amount of July 2021 on 15th July 2021, and for the month of August 2021, appellant deposited the rent on 26th August, 2021 and lastly for the month of September 2021, the amount of rent was deposited on 15th September, 2021
Appellant was not complying with the order passed by Trial Court
Plain, unambiguous and clear wording of S.13(6) Balochistan Urban Rent Restriction Ordinance, 1959 was open only to one interpretation that whenever the tenant was directed to pay the monthly rent before the 15th day of each month, the tenant must comply with the directions
Penal clause of S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959 had also been provided by the Legislature that in case of default ,not only his defence should be struck off, but possession of the rented premises should be ordered to be taken from him
Provisions of S.13(6) of Balochistan Urban Rent Restriction Ordinance, 1959, ibid were mandatory in nature
Once the Rent Controller directed the appellant to deposit tentative rent before the 15th of every month, then it was mandatory upon the appellant to deposit the said rent as per the direction of Rent Controller
Appellant had brought himself within the mischief of subsection (6) of S.13 of Balochistan Urban Rent Restriction Ordinance, 1959
Appeal was dismissed.
Family Court had warned the defendant that in case of failure to pay interim maintenance the suit of plaintiff would be decreed without recording of evidence
Defendant did not pay interim maintenance nor complied with the order of the Family Court
Father was bound to provide maintenance to his minor children
Order of Family Court directing the father to pay maintenance to the minor during pendency of suit was according to law
Conduct of defendant did not entitle him to discretionary relief
Defendant had not challenged the order of Family Court whereby he was ordered to pay interim maintenance
Impugned judgments and decrees passed by the Courts below could not be declared to have been passed without jurisdiction and lawful authority
Family Court had jurisdiction to strike off defence of defendant who had failed to pay interim maintenance and to decree the suit without recording evidence
No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below
Constitutional petition was dismissed, in circumstances.
Rent Controller accepted eviction petition on the ground of default and personal need and tenant was directed to deposit defaulted rent
Validity
Tenant did not comply with the order passed by the Rent Controller for deposit of rent before 15th of each month
Delay of single day in deposit of rent without any explanation was sufficient to strike-off defence of tenant
Tenant was provided opportunity to cross-examine the witnesses of landlord but he intentionally opted not to cross-examine them on the ground that he had filed constitutional petition before High Court
Tenant was afforded opportunity to produce evidence but he failed and his defence was struck-off
Conduct of tenant remained contumacious and he had been delaying the matter on one or the other pretext
Defence of tenant had rightly been struck-off in circumstances
Section 13 of Khyber Pakhtunkhwa Urban Rent Restriction Ordinance, 1959 did not authorize the Rent Controller for passing final order/ decree against tenant for recovery of defaulted rent
Rent Controller could pass order for deposit of arrears of rent and in case of default could strike-off defence of tenant but had no jurisdiction to pass a decree for recovery of defaulted rent
Landlord could file a suit for recovery of said rent before Court of competent jurisdiction
Impugned judgments passed by the Courts below were set aside to the extent of direction for payment of rent
Constitutional petition was disposed of in circumstances.
Period of thirty days for filing written statement had been provided but Court had discretion to enlarge the time according to circumstances of each case
Provisions of O. VIII, R. 1, C.P.C. were directory in nature and not mandatory
Time provided for filing written statement was not absolute and Court had discretion to grant more time if it was satisfied that the explanation offered by the defendant was reasonable
If Court had directed the defendant to file written statement and same was not filed within the period fixed by the Court then defence could be struck off and judgment could be passed against the defendant
Trial Court, in the present case had exercised its discretion on sufficient cause by giving defendants permission to file the written statement
Penal consequences provided in O. VIII, R. 10, C.P.C. were only available when Court had directed the defendant to file written statement by a speaking order
Simple permission by the Court and adjournment to file written statement would not be a ground to strike off the defence of defendant
Court should pass a speaking order with a direction to the defendant to file written statement and if direction was not complied with then defence should be struck off
Power to announce judgment did not imply decreeing the suit ipse dexit without calling for proof
Said power was discretionary in nature and if suit was suffering from any legal infirmity then same could not be decreed
Court could direct the plaintiff to produce evidence in support of his claim though written statement had not been filed
Court in appropriate cases could pronounce judgment at once against the defendant by striking off his defence without recording any evidence in the light of material evidence on file
No more than two adjournments were to be granted for presenting written statement
Defendant had been granted adjournments in routine without realizing the consequences
Court had power to enlarge time to do the complete justice and pass an order for the ends of justice or to prevent the abuse of the process of law
No illegality or perversity had been committed by the Court below while passing the impugned order
Revision was dismissed, in circumstances.
Revision was filed within time which was entertained but was returned when it was fixed for final argument being beyond pecuniary jurisdiction of the Court
Validity
District Judge was contributory to the delay for presentation of revision before High Court; had he objected at the very first point of time while realizing that Court lacked jurisdiction to entertain the revision petition, revision might have been filed within time before the High Court
Suit was instituted by the plaintiffs without fixation of court-fee on the plaint
Suit was not competent to be proceeded any further without fixation of court-fee
Suit was adjourned in routine without specifically requiring the filing of written statement and delivery of copy of plaint
Only four days time was provided to the defendant to file written statement which was not sufficient
Trial Court while delivering copy of plaint had not specifically required to do the needful
Period of ten months was allowed to the plaintiffs to furnish court fee to make their suit competent
One chance was to be afforded to the defendant to submit written statement
Law favoured adjudication on merits
Impugned order was set aside subject to payment of costs of Rs. 15,000/
Trial Court was directed to proceed with the suit from the stage when defence was struck off
Revision was allowed in circumstances.
Petitioner was father of minor who did not comply with the order passed by Family Court regarding payment of interim maintenance allowance
Family Court struck off the defence of petitioner and decreed the suit against petitioner
Judgment and decree passed by Family Court was maintained by Lower Appellate Court
Plea raised by petitioner father was that quantum of maintenance was to be based upon income and capacity of petitioner and not upon any other factor
Validity
Inadequacy of financial means of petitioner was duly rebutted by local commissioner's report, which was available on record before High Court and was also relied upon by the Family Court
Means of a person were to be factored in when apportionment of maintenance was taking place
Same was undertaken judiciously by Family Court while determining quantum of maintenance payable by petitioner
High Court in exercise of Constitutional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as the same was in due consonance with law
Constitutional petition was dismissed in circumstances.
Once a person acknowledged himself to be a tenant of a landlord the principle of estoppel would come into play in circumstances
Order for deposit of rent should have been complied with by the tenant to qualify him to be heard in support of his defence plea raised in the written statement
Tenant had not complied with the rent order in letter and spirit but committed default in depositing the same
Provisions of S. 16(2) of Sindh Rented Premises Ordinance, 1979 were mandatory in nature and even one day's delay in depositing rent would be default within its meanings
Rent Controller had no power either to extend the time or to condone the default
Both the courts below had correctly appreciated the pleadings and applied the law in deciding the present case
Constitutional petition was dismissed in limine.
Tenant was directed to deposit arrears of rent in the Court who failed to deposit the same and eviction petition was allowed
Contention of tenant was that rent had been paid to the previous landlord as he was not aware of change of ownership of rented premises
Validity
Rent for the month of January 2016 had been deposited in the Court in the name of landlord
Tenant should not have been non-suited in circumstances
Change in the ownership of rented premises was a dispute which was to be resolved after recording of evidence
Rent Controller could not take penal measure of striking off his defence and accept landlord's eviction petition simply because tenant did not deposit rent of the period which was disputed between the parties
Landlord could not claim rent for the period when he had not even become the owner of rented premises
Impugned orders passed by the courts below were set aside
Eviction petition was directed to be decided by the Rent Controller within the period stipulated in S. 25(3) of Islamabad Rent Restriction Ordinance, 2001
Constitutional petition was allowed in circumstances.
No one could be permitted to assume inconsistent positions in the Court by approbating and reprobating to the detriment of opposite
Tenant was party to the lease agreement
Once a tenant always a tenant
Respondent was not owner of the rented premises
Tenant was estopped by his own conduct to deny the relationship of landlord and tenant
Appellate Court had all the powers which the original forum had
Rent for the months of April and May, 2016 was deposited by the tenant on 31-05-2016
Delayed deposit of rent for the said months was not just in default of tentative rent order but also the terms of lease agreement
Tenant could have deposited the rent for the said months prior to the 15th of each month
Deposit of rent after disposal of eviction petition could not be said to be in compliance with the tentative rent order passed by the Rent Controller
Tentative rent order passed by the Rent Controller was in field
Tenant was supposed to show compliance with the said order in order to avoid adverse consequences
Constitutional petition of tenant was dismissed in circumstances.
When tenant failed to deposit the amount of rent before specified date or before 5th of each month, under S.17 (9) of Cantonments Rent Restriction Act, 1963 his defence would be struck off
Even one day's delay making the deposit would be 'default' within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1963--When default was established Rent Controller had to struck off right to defend and put landlord in possession of suit premises
Appeal was allowed in circumstances by setting aside order of Rent Controller.
Monthly rent was deposited by tenant with the delay of one day from the last date fixed by Rent Controller on account of the circumstances beyond his control as it was holiday on the said date
Effect
Petitioner/tenant was not at fault, so as to penalize for not depositing the rent on last day being Sunday
Last day was public holiday and the petitioner had deposited the rent on the next day on Monday, which could not be treated as a default
Deposit made on the date next after public holiday was valid
Extreme penalty of striking off tenants defence/eviction would not be called for when non-compliance with order was a technical default and not wilful
Unintentional and bona fide act on tenant's part in depositing rent strictly in observance of letter and spirit could not be equated with non-compliance with order, making tenant liable to eviction
Before passing the tentative rent order, it was incumbent upon Rent Controller to determine whether deliberate default had been committed in respect of rent of demised premises by the tenant or not
Impugned order was set aside, matter was remanded to Rent Controller for decision afresh on merit
Constitutional petition was allowed.
Contention of the tenant was that the order had been passed in hasty and mechanical manner and the Rent Controller had no jurisdiction to pass an order for arrears of rent beyond three years
Plea of landlord was that once the tentative rent order was passed by the Rent Controller the tenant was bound to comply with the same or challenge the same before the competent forum, which was not done by the tenant
Validity
Only summary inquiry had to be made by the Rent Controller to determine the arrears of rent due, which had been done in the present case
Once the tentative rent order was passed by the Rent Controller, the tenant was bound to comply with the order and if he was not satisfied with said order he should have challenged the same before the competent forum which was not done by the tenant
Default on the part of the tenant stood established and his defence was rightly struck off
Delay of even a single day in the payment of the rent/deposit of the rent in the court created valuable right in favour of the landlord and the delay could not be condoned in the absence of reliable and cogent reasons for the same
Present case was even on the worse side so far as the tenant was concerned, as he had not deposited the rental amount and failed to comply with the order of the Rent Controller
Tentative rent order passed in the case was apparently a restrictive order whereby the landlord was restrained from withdrawing the amount of rent till final decision of the rent cases and the rate of rent and question of actual arrears of rent was yet to be determined on the basis of evidence of the parties but the tenant failed to comply with the tentative rent order, therefore, the Rent Controller had no option but to pass the order
Appeal was dismissed in limine.
Provisions of S.17(9) of the Cantonments Rent Restriction Act, 1963, was mandatory in nature and even one day's delay in making the deposit would come within the meaning of default and the Rent Controller had no power to extend the time or condone the same
Tenant did not adhere to the direction of the Rent Controller and failed to deposit the rent within the prescribed time, Rent Controller had no option but to invoke the penal provisions as contained in S.17(9).
"Striking off defence", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124942271
Precedents & Case Laws citing "Striking off defence"
2001 S C M R 844
TANVEER ZIA and another — Appellants Versus Sh. MUHAMMAD BASHIR and another — Respondents
Court: Supreme Court of PakistanP L D 1992 Peshawar 173
MANAGER, FOREST OPERATION (MALAKAND CIRCLE)‑‑Petitioner Versus MUHAMMAD ZAMAN and others‑‑Respondents
Court:1987 C L C 971
Mst. SHAH JEHAN BEGUM‑‑Petitioner Versus RENT CONTROLLER, KARACHI, WEST and another‑‑Respondents
Court: Karachi1980 S C M R 779
MESSRS CRESCENT PUBLICITY SERVICE-Petitioner Versus S. M. YOUNUS AND others-Respondents
Court: S. 13(6)-Striking off defence-High Court, held, competent to strike off defence of tenant on his failure to comply with High Court's order in second appeal to deposit rent.-Second appeal.P L D 1996 Quetta 9
ABDUL MALIK ‑‑‑ Landlord/Appellant Versus SADARUDIN ‑‑‑ Tenant/Respondent
Court:1984 C L C 642
MUHAMMAD TAQI ALVI‑Appellant Versus ABDUL HAKIM‑Respondent
Court: Karachi2006 C L C 1655
DIRECTOR, EXCISE AND TAXATION — Petitioner Versus MUHAMMAD AMIN WAQF — Respondent
Court: Karachi1986 C L C 120
RAZA MOHYUDDIN‑‑Appellant Versus Mst. TASNEEM SAGHIR‑‑Respondent
Court: Karachi1994 C L C 1210
Mst. MUKHTAR BEGUM‑‑‑Appellant Versus DILDAR AHMED ‑‑‑Respondent
Court: Karachi1989 C L C 1658
SALAHUDDIN and 4 others‑‑Petitioners Versus ADDITIONAL DISTRICT JUDGE, KOHAT and 2 others‑‑Respondents Writ Petition No.53 of 1989, decided on 30th April, 1989.
Court: Peshawar