1. ' AZIZULLAH M. MEMON, J.- Applicant filed ejectment case bearing No.2758 of 2000 against the tenant/ respondent Pakistan Security Printing Corporation Limited, stating that applicants are owner and landlord of the Rooms bearing Nos.9 and 10, situated on the first floor of Hotel Metroploe Building, Club Road, Karachi, on the monthly rent of Rs. 1,074, exclusive of electricity of consumption charges. In the year 1983 applicant had filed (previous) Rent Case bearing No. 1076 of 1983 in the Court of XVth Senior Civil Judge and Rent Controller, Karachi South, for ejectment on the ground of default which rent case was compromised by the' parties and the rate of rent was enhanced from Rs.500 per month to Rs. 1,074 per month.
2. ' It was further contended that the opponent/respondent had shifted its head office to 116 Avenue Centre, Sretchon Road, Karachi and abandoned the said premises; further that they impaired the value and entity of-the said premises and thereby violated the terms and conditions of the tenancy agreement. Further' that the opponent/tenant proved .To be a habitual defaulter in payment of the monthly rent and committed default in payment of rent for the months of August, 2000 till filing of the said Ejectment Case No.2758 of 2000, hence they filed the said ejectment case.
3. ' The tenant/respondents contested the said ejectment application by filing their written statement.
4. ' During the course of the proceedings the Rent Controller passed tentative rent order dated 26-2- 2001 thereby directing the tenant/respondent tq deposit arrears of monthly rent in the Court with effect from January, 2001 till the month of February, .2001, in the Court of Rent Controller within 15 days from the date of the said order and also continue to deposit future monthly rent at the said rate on or before 10th of each Calendar month.
5. ' The tenant/respondent committed default in payment deposit of the rent and therefore, the applicant filed an application under section 16(2) of Sindh Rented Premises Ordinance, 1979, notice whereof was given to the tenant.
6. ' Vide order dated 24th December, 2001 the said application for striking of the defence of the tenant was allowed by the Ilnd Senior Civil Judge and Rent Controller Karachi South; hence he directed for striking of the defence of the tenant and further directed them to vacate the said premises and to hand over its possession to the petitioner/landlord within a period of 90 days from the date of the said order viz. 24-12-2001.
7. ' The tenant filed rent appeal bearing No.51 of 2002 against the said order of the learned Rent Controller which was heard by Illrd Additional District Judge, Karachi South, who vide order dated 23-5-2002 allowed the said appeal and set aside the said order passed by the Rent Controller and remanded the rent case to the Rent Controller to proceed with it and to decide the dispute between the parties on merits.
8. ' Hence the landlord has filed the present constitutional petition.
9. ' Heard learned counsel for the parties.
10. ' Learned counsel for the petitioner has cited State Life Insurance Corporation of Pakistan v. Kotri Textile Mills (Pvt.) Ltd. (2001 SCM R 1401), wherein the .Honourable Supreme Court was pleased to hold that on non-compliance of the tentative rent order at the hands of the tenant without explaining the circumstances causing such failure the tenant deserves no concession and is to be ejected from the disputed premises involved in the particular case.
11. ' In Reckitt and Colman v. Saifuddin Lotia and others (2000 SCM R 1924), Honourable Supreme Court was pleased to, hold that rent sent by the tenant to the landlord by issuance of a cheque is not a valid tender and would not wash out the effect of the default at the hands of the tenant and further that mere fact that during long period of tenancy, tenant defaulted in payment of rent of few days only will not warrant exercise of discretion in his favour unless default was due to reason beyond his control. It was further held therein that the contention that default committed by the tenant was "technical" in circumstances has no force, for the simple reason that word "default" connotes an act done in breach of a duty or in disregard of an order or direction cannot be persuasive, and further that most liberal interpretation that could be given to the words "technical default" covered only such defaults which were unavoidable or due t% the cause for which defaulter was in no way responsible.
12. ' In Municipal Committee, Gujranwala v. Barkat Bibi and others (1979 SCM R 264), the Honourable Supreme Court recorded the following observations at page 265:- "The petitioner committed default in the payment of rent for the months of July and. August, whereupon, after holding necessary inquiry, his defence was ordered to be struck off. The plea taken up by the petitioner to avoid the penalty envisaged by section 13(6) of the Rent Restriction Ordinance for non-compliance of the order of the Court dated 8-7-1976 was that certain audit objections had prevented the petitioner from making the deposit in time and, as such, the default was not wilful. In passing the order striking off the defence of the petitioner of Rent Controller also found that the petitioner committed default for the months of August to February because he had paid the rent for this period in lump sum on 18th March, 1977."
13. ' In appeal, the District Judge agreed with the finding recorded by the Rent Controller and held that the default on the part of the petitioner was wilful and his defence had been rightly struck off.
14. ' Before the High Court, it was argued that the default could not be said to be wilful and that in any case the petitioner was not given adequate opportunity before his defence was ordered to be struck off. The learned Judge in the High Court held that in so far as the petitioner was allowed to submit a reply to the respondent's application for striking of the defence, it could not be said that he had not been afforded any opportunity as detailed inquiry was not called for, as held by this Court in Ghulam Muhammad Lundkhor v. Safdar Ali (1). It was so held that merely because there were audit objections the petitioner was not absolved of the obligation of complying with the order of the Court under section 13(6) of the Ordinance. The conclusien arrived at was that it could not be said that the default was not wilful.
15. ' The petitioner has reiterated the same points that were argued before the High Court. From the reply to the application of the respondents praying for the striking of the defence of the petitioner, which has been placed before us, it appears that the audit objection was only to the effect that the petitioner should produce a copy of the order of the Court in regard to the payment of rent, i.e., the order.Under section 13(6) of the Rent Restriction Ordinance. This was not such a formidable objection which could, not be rectified without loss of time and, therefore, non- compliance of the order of the Rent Controller in regard to payment of rent on account of which the petitioner's defence was struck off was owing to their own negligence which could have been avoided if the petitioner had acted with due diligence. In this view of the matter the default committed by the petitioner was wilful and invited the penalty of striking off his defence under section 13(6) of the Rent Restriction Ordinance. We are also in agreement with the learned Judge of the High Court that the petitioner had been afforded an opportunity to explain the non- compliance .Of the order for the deposit of rent in Court and. No separate trial of the plea raised in excuse of the said non- compliance was necessary and that his defence was rightly struck off.
16. ' The result 'is that this petition fails and is accordingly dismissed.
17. ' In Muhammad Jan v. Khadim Hussain (1973 SCM R 243), Honourable Supreme Court was pleased to record observation to the effect that where the tenant seeks permission from the Court for depositing rent late in the day with consequence that by time'he reached Bank to deposit amount, banking hours were over, it was held, thereby the tenant committed default due to negligence on his part and his defence was therefore, rightly struck off.
18. ' In M/s Crescent Publicity Service v. S.M. Younus and others (1980 SCM R 779), Honourable Supreme Court was pleased to hold that, even a single default is sufficient to bring the case within mischief of striking of the defence of the tenant.
19. As stated above, it is a settled principle of law that deposit of rental amount by issuance of cheque is not a valid tender and will not wash out the effect of the default at the hands of the tenant.
20. ' Thus, the Rent Controller had rightly recorded a finding that the tenant failed to comply with the order of the Rent Controller for depositing the monthly rent and rightly directed for striking of his defence and in consequence whereof to direct for ejectment of the tenant; the Appellate Court did not properly appreciate the above quoted settled principles of law.
21. ' Hence vide a short order dated 9-4-2007 this constitutional petition was allowed in the following terms:- "Arguments heard.
22. ' For the reasons to follow in the detailed judgment, this constitutional petition is hereby allowed, order passed by the Appellate Court is hereby set aside and that passed -by the Rent Controller against the tenant/ respondent is restored,, whereby the tenant is ejected from the disputed premises. The tenants/respondents are granted time of four months from this date to peacefully vacant and handover possession of the disputed tenement to the petitioner, provided that they pay the rent of the premises to the petitioner, and in the case of failure to do so, the Rent Controller shall by means of execution application, put the applicant/petitioner into vacant possession of the disputed tenement and may also direct for police aid for the said purpose, if the need be."
23. ' Above are the reasons for the said short order.