Mian Shakirullah Jan, J.--During the pendency of an ejectment/eviction application filed by the respondent/landlord under Section 15(2)(H) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the 'Ordinance, 79') on the ground of default, the respondent filed an application under Section 16(1) of the Ordinance praying therein for striking of the defence of the appellant/tenant on the ground that he has not complied with the order of the Court with regard to the (i) deposit of the rent for the month of May, 2001 and (ii) with a delay in the deposit of monthly rent for the months of November and December, 2002 with a further prayer that he may be put into possession of the premises. The learned Rent Controller found that the appellant has not deposited the rent for the month of May, 2001 and has also made a delay of one day in each of the two months of November and December, 2002 in depositing of the rent and his defence was struck off by passing an order on 01.11.2004. The respondent instead of availing a statutory remedy, by filing an appeal before the appellate forum, has filed an application under Section 12(2) of the CPC before the Rent Controller challenging the order of striking of defence passed by the Rent Controller, which was dismissed on 29.04.2005. After the dismissal of his application under Section 12(2) of the CPC, the appellant then filed an appeal before the Additional District Judge. The appellate Court accepted the appeal, set aside both the orders dated 01.11.2004 passed on the application of the respondent filed under Section 16(2) of the Ordinance and the order of dismissal of application under Section 12(2) CPC and the case was sent back to the learned Rent Controller to decide the application of ejectment on merits. This order was challenged by the respondent before the High Court in Constitution Petition which was accepted and the order of the appellate Court was set aside and that of the Rent Controller was restored and it is now this order which has been challenged through the instant appeal, by leave of the Court.
2. The learned counsel for the appellant has contended that the same Rent Controller in respect of the similar properties in the same premises between the same parties and on the same day with similar circumstances has dismissed the application of the respondent landlord by condoning the delay with a warning to the appellant to be careful in future by depositing the rent in time, but in the instant case altogether a different order was passed by accepting the application of the respondent landlord and passing an ejectment order. He has also referred to an earlier similar order passed by the Rent Controller in the instant case which order of ejectment for the delay in depositing of the rent was set aside by this Court in C.P. No. 1171/2003 (Safeer Travels (Put) Ltd. through its Chief Executive Safeerul Islam v. Muhammad Khalid Shafi (deceased) through L.Rs), the copy of the judgment has been placed on file. He has also contended that in any case the delay of one day of each month of November and December, 2002 was not a wilful and negligent default but on account of inevitable circumstances which have been explained by the appellant. On the other hand, the learned counsel for the respondent, while supporting the impugned judgment of the High Court, has vehemently contended that the facts of the cited cases which were quite independent cases are different from the instant one and even the case decided by this Court in the earlier round of litigation on similar plea was also different and having distinguishing features, are of no help to the appellant.
3. We have gone through the record of the case, the impugned judgments and that of the Courts below. Though there is a controversy with regard to the payment of the rent for the month of May, 2001 as on one hand there is a report of the COC (Clerk of Court) with regard to the non depositing of the rent for the said month but on the other hand the appellant had produced receipts bearing the date of 10.05.2001 before the Courts below which was not believed by the High Court. However, the default for, the month of November and December, 2005 by one day each has been admitted but on the pretext, by explaining, that the delay relating tope month of November, 2002 as given in the judgment of the appellate forum was "due to reasons that 9th November was Iqbal Day as holiday and 10th November was Sunday holiday and due to rush in the bank the representative of the appellant waited in the row for deposit of rent for the above months but could not succeed due to rush and long queue of customers before the bank'. The rent for the month of December, 2002 was delayed for one day due to the reasons that the representative of the appellant, who was given rent amount on 09.12.2002 by the appellant for deposit in the bank failed to deposit the same due to hospitalization of his mother and the rent was paid on 11.12.2002 instead of 10.12.2002. The aforesaid reasons advanced by the appellant for the delay in deposit of the rent for two months did not find favour with the High Court and while accepting the writ petition filed by the respondent landlord, the order of the appellate forum was set aside and that of the Rent Controller was restored.
4. By going through the relevant provisions of the Ordinance contained inn Section 16(2), it is quite evident that once the default has been committed, the Rent Controller has got no discretion and has been left with no option but to strike off the defence of the tenant, which Section 16(2) reads as under:-- "16(2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under sub- section (1) his defence shall be struck off and the landlord -shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf."
'Since the word 'shall' has made it obligatory for the Court that in case of default, the defence will have to be struck off. Similar mandatory provisions, with a little variation, are also found in other rent laws i.e., Section 13(6) of the West Pakistan (Punjab/NWFP) Urban Rent Restriction Ordinance, 1959 (hereinatter referred as 'Ordinance, 59') and Section 17(9) of the Cantonment Rent Restriction Act, 1963 (hereinafter to be referred to as 'Act, 63'). However, such stringent conditions have been relaxed under certain circumstances by the superior Courts in some cases. This question relating to the mandatory nature and the circumstances under which it can be excused has come under consideration before this Court time and again after the enforcement of the Ordinance, 59 of which one of the illustrious judgment, first of its kind on the subject, was given by this Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530), which has laid down the principle while interpreting the said provisions. In this case the tenant has committed default by not depositing both the arrears and the rent for the month of February before the 5th as directed by the Rent Controller but instead deposited it on the 6th as the 4th was a public holiday and which could have been deposited on the 5th, the next day of the due date. The learned High Court while interpreting the word default was of the view that the legislature has intentionally employed the word 'default' instead of, 'not complied with' the order of the Rent Controller, as to give an edge to the tenant that if the non-compliance of the order as occurred on account of unavoidable circumstances, which is beyond his control for example while he on his way for deposit of the rent met an accident. However, such a circumstance was not found in the case and the order of striking off defence passed by the Rent Controller was upheld. It was ruled that:-- "Having regard to the language of Section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1959, one finds it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause.
The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this sub-section is not so' much to afford the landlord an expeditious method of realizing the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions therefore purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co- relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the Privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law.
But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this sub-section. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default.
'Non-compliance which is avoidable cannot possibly bt excused. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for, which the defaulter is, in no way, responsible.
The word 'default', it is urged, necessarily implies an element of negligence and it is pointed out that even in Stroud's Judicial Dictionary it has been recognized that the word default "would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather or unless hindered by the plaintiff's non-performance of some condition precedent, or unless there has been a waiver of performance." This, it is submitted, clearly indicates that it is a purely relative term just like negligence."
'The above principle laid down qua the mandatory nature of the Court's order and the circumstance under which and to the extent which can be condoned, has been followed by a number of judgments, in some, by making a direct reference to it, some of them are referred herein below.
5. In the case of Muhammad Jan v. Khadim Hussain (1973 .SCMR 243), the deposit of the rent was made on the day following the last date and the plea was taken that the default was due to the fact that by the time the petitioner got the necessary permission from the Rent Controller to deposit the rent in the State Bank of Pakistan and when he reached the bank, the banking hours had expired and the bank was not prepared to accept the deposit on that day. It was found that the Court hours commenced from 7:30 a.m. and the petitioner reached the Court at about 10 or 11 a.m. It was held that the delay in obtaining the permission of the Court for making the deposit with the State Bank was thus due entirely to his own carelessness and was not due to unavoidable cause. He could well have avoided the default if he had come early and obtained the permission of the Court in time to enable him to make the deposit with the State Bank. His failure to do so entirely to his own negligence and, therefore, it was held that he cannot claim to come within the principle laid down by this Court in the case of Ghulam Muhammad Khan Lundkhor (supra).
6. In the case of Ghulam Ahmad Pirzada v. Additional District Judge, Lahore and 2 others (1982 SCM R 616), the plea of the tenant that the delay of only one day in each of a few months due to misunderstanding on the part of the petitioner who thought that he was required to deposit the rent on the 15th of each month, not accepted and the order of striking off defence was upheld.
7. In the case of Abdul Qayyum Paracha v. Ghulam Hussain and others (1985 SCM R 580), it was held that in ease of default in the payment of the arrears of rent or the future rent, the Rent Controller is empowered to strike off defence and ordered his ejectment without taking any further proceeding in the case.
8. In the case of Fazalur Rahman v. Mst. Sarwari Begum and others (1986 SCM R 1156), the delay of one day as the, directions were for the deposit of the rent before the 5th of next month was not complied with and it was deposited, instead, on 5th of the month and which delay was not condoned and it was observed that:-- "3. The learned Rent Controller was competent to strike off the defence of the appellant as there was no other option left for him. Appellant himself took the risk of depositing the rent on the last date and urged that the Clerk of the learned Court, who prepared deposit challans, was not present and, therefore, the rent could not be deposited in time. We are not impressed with this argument. The appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him. Appeal is, therefore, dismissed with no order as to costs."
9. In the case of Province of Punjab and others v. Muhammad Jalil-ur-Rehman (1986 SCM R 1705), the plea of the learned counsel for the petitioner that the Rent Controller should have extended the time for deposit of the rent as the departmental representative got delayed in making deposit on account of departmental procedure, was not accepted by observing that unless the reasons for non-deposit shows objective unavoidability, the Rent Controller had no power to ignore the delay in making the deposit under Section 13(6) of the Ordinance.
10. In the case of Muhammad Yousaf v. Muhammad Bashir and others (1990 SCM R 557), the contention of the learned counsel for the petitioner/tenant was that it was a delay only of one day, the High Court should not have taken a strict view of the so called default as the petitioner was compelled by the circumstances (illness of his father) in his failure to make deposit on due date and that in any case it was not a case of several defaults spread over a period of time, the defence could not be struck off, was repelled by this Court and it was held that the default under Section 13(6) is of peculiar nature and the Rent Controller has no discretion to condone it, as distinguishable from the default in payment and rent relatable to other provisions of Section 13. The plea of the appellant that the delay was due to the compelling and/or unavoidable/beyond control circumstances, was not accepted and the findings of the High Court were not interfered.
11.In the case of Muhammad Amin v. Ghulam Nabi and 2 others (PLD 1990 SC 1201), this Court while dealing with the proposition in question has held that once a default is established the Rent Controller has no jurisdiction not to pass an order for striking off of defence unless a type of exception visualized in the case namely, a situation beyond control is established by the tenant or certain payment from the tenant side. The contention of the learned counsel for the tenant that the tenant after having succeeded on merits, the defence should not have been struck off on account of failure to obey the order of the learned Rent Controller passed under Section 13(6) of the Ordinance, 59, was repelled while referring to a judgment of this Court in the case of Ghulam Muhammad Khan Lundkhor (supra).
12.In the case of Syed Muhammad Zaman v. Abdul Khaliq (1991 SCM R 1982), a review petition was filed for review of the judgment in which the contention of the petitioner was not accepted with regard to the striking of defence by the Rent Controller under Section 13(6) of the Ordinance, 59, on the ground of not complying with the order of the Court by not making the deposit in time. By laying emphasis on the fact that the petitioner failed to explain the delay and seek the condonation, but instead he left it to be pointed out by the respondent/landlord and came out with an explanation and documentation about three months after the default had been committed. It was held that once it was found that a default had been committed, the Rent Controller had no discretion in the matter but had to strike off the defence.
13.In the case of Misbahullah Khan v. Mst. Memoona Taskinuddin (1995 SCM R 287), this Court while interpreting the scope of Section 17 of the Act, has held that tentative rent order can be passed by the Rent Controller even if ground of default is not alleged for seeking eviction.
14.In the case of Asif Chughtai v. Mrs. Zile Huma and others (1995 SCM R 741), pertaining to Section 13(6) of the Ordinance, 59, it was held that the petitioner having failed to deposit the arrears of rent and future rent as directed on 9-3-1993, by the learned Rent Controller, ven till today, cannot successfully seek interference in the order of his ejectment passed in consequence thereof, from the premises in question.
15.In the case of Zikar Muhammad u. Mrs. Arifa Sabir and another (2000 SCM R 1328), when no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant was offered, the order of the Rent Controller of striking off defence was upheld.
16.In the case of The State Life Insurance Corporation of Pakistan u. Kotri Textiles Mills (Put) Ltd (2001 SCM R 605), on which a heavy reliance was placed by the learned counsel for the appellant, a delay of one day in depositing the rent in compliance of the order of the Rent Controller under Section 16(2) of the Ordinance, 79 was condoned by the High Court and which order was upheld by this Court but under different circumstances. In that case the Rent Controller directed the tenant to deposit the arrears of rent in the sum of Rs. 7,290/- with the Naazir of the Court before the 25th of the same month. Since the order was not complied with by the tenant and instead he moved an application for extension of time and deposit the rent as ordered on the very next day. The Rent Controller struck off the defence of the tenant. The matter went before the High Court and the learned High Court accepted the plea of the tenant by observing that the facts on record admittedly indicate that the amount of arrears was deposited on 26.05.1991 with a delay of only one day with a plea of the tenant that his counsel had left for abroad and the entire record was held by him. It was observed:-- "No doubt a party can be made to suffer for negligence of counsel, but generally Court has also to examine conduct of the party and where a party is not at all fault and not guilty of any carelessness or negligence in view of special circumstances of case and to save party from great injustice or hardship Court may not penalize party for negligence of his counsel."
'The appellant filed an appeal, by leave of the Court, before this Court, which was dismissed. It was observed that the tenant before the expiry of the stipulated period has moved an application for extension of time mentioned therein the reasons for not complying with the order within time, and those may be the one referred to by the High Court and noted above, as by that time no violation has been committed by the tenant, therefore, it was incumbent upon the Controller to have considered the request of the respondent for extension of time sympathetically and in exercise of its inherent jurisdiction and in the larger interest of justice the application may have been allowed because the respondent had approached the Rent Controller well in time before the deadline fixed by it and this conduct of the tenant goes to prove his bonafide and interest to comply with the order, which bonafide also gets confirmation from his conduct by depositing the rent on the following day. It is not the case where the tenant after non-compliance of the order of deposit of arrears of rent had kept silent unless the landlord had not prayed for striking off his defence due to non-depositing of rent which case is distinguishable from the one where the tenant himself approached the Court for extension of the period. This case is distinguishable from the one in hand and also it is in line with the observation made, in this respect, in the case of Muhammad Zaman (supra) i.e., qua the distinguishing features of the two types of cases.
17.In the case of Khawaja Muhammad Mughees v. Mrs. Sughra Dadi (2001 SCM R 2020) even one day delay in depositing of the arrears of rent with a plea that the last date was a gazetted holiday, which was not found correct, so not condoned.
18.In the case of M. H. Mussadaq v. Muhammad Zafar Iqbal and another (2004 SCM R 1453), it was held that:-- "10. According to sub-section (9) of Section 17 of the Act, if the tenant fails to deposit the amount of rent before specified date, or, as the case may be before 5th of the month, his defence shall be struck off. On its bare perusal, it is manifest that the above provisions are mandatory in nature and even one day's delay in making the deposit would be default within its meaning and Rent Controller has no power to extend time and condoned the same."
Reliance was also placed on the cases of Misbahullah Khan (supra) and Province of Punjab and others (supra).
19.In the case of Asif Chughtai (supra) the tenant, after passing of the order by the Rent Controller under Section 13(6) of the Ordinance, 59 for the deposit of rent, has moved an application for the extension of time which was not accepted and on appeal the District Judge while accepting the appeal set aside the order of the Rent Controller, and the case was remanded to him but the High Court in the exercise of its Constitutional Jurisdiction while allowing the petition set aside the order of the appellate forum and restored that of the Rent Controller, which judgment of the High Court was maintained by this Court.
20.In the case of Zikar Muhammad (supra) when there is no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant, the defence could rightly be struck off.
21.Learned counsel for the appellant has contended that the conclusion arrived at by the appellate Court, a statutory forum, having exclusive and final jurisdiction to correct the error made by the forums below that is the Rent Controller and interference by the High Court in its Constitutional Jurisdiction was not justified.
22.We examined the judgments of all the three forums below and particularly that of the appellate Court and in order to see if there is any flaw or illegality in the judgment which justified the upsetting of the finding of the appellate Court by the High Court.
23.The Rent Controller passed the order of striking off defence of the appellant on 01.11.2004 and the appellant did not file an appeal against the aforesaid order, but rather opted to file an application under Section 12(2) CPC before the Rent Controller, which was adjudicated upon and ultimately the same was dismissed on 29.04.2005 by holding that "Since the ingredients of Section 12(2) CPC has not been established in the present application. Moreover the order was passed on merits after considering all the material available on record, the opponent have remedy of appeal, therefore, present application merits no consideration, same stands dismissed with no order as to costs." The appellant challenged the aforesaid order before the District Judge in appeal, however, in the prayer clause a prayer for setting aside of the previous order of striking off defence dated 01.11.2004 was also made. The learned appellate Court while disposing of the appeal did not accept the plea of the appellant qua the maintainability of application under Section 12(2) CPC and upheld the order of the Rent Controller by reproducing the following relevant para of the order of the Rent Controller:-- "Since the ingredients of Section 12(2) CPC has not been established in the press application.
Moreover the order was passed on merits after considering all the material available on record, the opponent have remedy of appeal, therefore, present application merits no consideration, same stands dismissed, with no order as to costs."
'The learned appellate Court then proceeded as follows:-- "The appellant in the entire appeal utterly failed to pin point the essential ingredients of Section 12(2) CPC as to establish his case and in the impugned order dated 29.4.2004 the learned III Sr. Civil Judge has rightly observed at page 2 as under: "In the affidavit, the opponent have not taken, the plea that fraud is made or there is any mis- representation of facts. Neither the jurisdiction of this Court is touched in the affidavit. Therefore, the requirements of Section 12(2) CPC is not established."
'And the appeal against the order dated 29.04.2005 was dismissed:-- 'As in the appeal no fraud and mis-representation has been raised, the appeal filed by the appellant against the impugned order dated 29.4.2004 deserves to be dismissed in limine."
24.After observing, as noted above, then the appellate Court proceeded to discuss the default which resulted in the striking off defence, and while making comparison with a similar case on which the defence was not struck off by the Rent Controller, and also making a reference to a former such like application whereby this Court allowed the deposit of rent, allowed the appeal and set aside both the orders dated 29.04.2005 and 01.11.2004 and remanded the case back to the trial Court with directions to decide the impugned rent case on merits. The decision in another case with a different conclusion by the Rent Controller, which is not valid, cannot be made the basis for arriving at a similar conclusion in the instant case as in this case the decision will be made keeping in view the facts and circumstances of the case and also the legal provisions irrespective of the decision by the same Rent Controller in a similar case with a different decision. In the light of arguments of learned counsel for the appellant, we have also perused the judgment of this Court in the earlier round of litigation and found that the delay was condoned for sufficient and good reasons as the last day i.e., 10.12.1999 was the first day of Ramadan, which was declared to be a bank holiday for the purpose of deduction of Zakat and 10.01.2000 was Eid holiday.
25.The perusal of the judgment of the appellate Court indicates that on one hand, as noted above, it arrived at a conclusion that no fraud or mis-representation has been raised and the appeal against the impugned order dated 29.04.2005 was dismissed, but on the other hand at the end while accepting the appeal both the orders dated 29.04.2005 and 01.11.2004 were set aside. The judgment of the appellate Court is not clear and ambiguous one and also has proceeded on wrong premises. The orders passed by the Rent Controller are in consonance with the law and their setting aside was not proper and legal.
26. This Court, on several occasions, has held that the High Court in its constitutional jurisdiction can interfere with the judgment and order of the appellate Court if the view taken by the appellate Court was not only contrary to the established principles of law, but also contrary to evidence on record or had flouted the provisions of statutes or failed to follow the law relating thereto as held in the case of Lal Din Masih v. Mst. Sakina Jan and another (1985 SCM R 1972).
27.The High Court in its Constitutional Jurisdiction will not only to see that the inferior tribunals keep within their jurisdiction but also to see that they observed law, as held in the case of Rahim Shah v.
The Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24).
28.In the case of Messrs A C.E. Enterprises through Khalid Pervez v. Additional District Judge, Lahore and others (1987 SCM R 1174), this Court while dismissing the petition filed against the judgment of the High Court whereby in its constitutional jurisdiction it has set aside the order of the appellate forum, it was observed that where the forums below fail to act in accordance with the enunciation of law made by the superior Courts, such an error can be corrected in the exercise of writ jurisdiction. Reliance was placed on the case of Muhammad Sharif v. Muhammad Afzal Sohail (PLD 1981 SC 246).
29.In the case of Muhammad Hayat 4). Sh. Bashir Ahmed and others (1988 SCM R 193), this Court, in a rent case, the plea raised that findings of the appellate Court were final and could not be interfered within writ jurisdiction, repelled and it was held that the appellate Court having misread evidence on record, his findings which were based on misreading of evidence, stood vitiated and such order, held, was not immune from interference in writ jurisdiction.
30.In the case of Abdul Hamid v. Ghulam Rasul and others (1988 SCM R 401), when the findings of the District Judge in a rent appeal were found conjectural, based on misreading of record and on evidence taken out of context, by the High Court, were set aside by the High Court in constitutional jurisdiction, and it was held by this Court that the High Court was justified in circumstances in interfering with the appellate order.
31.In the case of Muhammad Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others (2001 SCM R 338), it was observed that where the District Court, which is the appellate Court, and it reversed the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with such finding by issuing writ of certiorari to correct the wrong committed by the appellate authority and the High Court can justifiably exercise its Constitutional Jurisdiction as the same is supervisory as well as in aid to subserve the cause of justice and to correct a wrong wherever the Court finds to have been committed being contrary to evidence and the law on the subject.
32.For what has been discussed above and while maintaining the judgment of the High Court vide which the judgment/order of the Additional District Judge was set aside and that of the Rent Controller was restored, the appeal is dismissed with no order as to costs.