' The present appeal is directed against the order of the learned Additional District Judge, Gujranwala, dated the 6th of May, 1976, upholding that of the learned Rent Controller dated the 10th of October 1974, ordering ejectment of the appellant for depositing the rent for the months of November 1972, February 1973 and December 1973, either on the fifteenth or the sixteenth day instead of "before the fifteenth day" of each succeeding month.
2. The facts relevant for purposes of this appeal, briefly stated, are that during the proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1969, for eviction of the appellant from the disputed shop, the learned Rent Controller, vide order dated 2-11-1972 directed him to deposit arrears of rent amounting to Rs, 975 by 30th November 1972, and also to deposit till the final decision of the case before the fifteenth day of each succeeding month the monthly rent due from him. The appellant deposited arrears of rent on 25-11-1972 and placed the treasury voucher on the file whereafter the learned Rent Controller framed issues and fixed a date for evidence of the respondent who produced his witnesses and closed evidence on 8-11-1973. The appellant examined his witnesses and closed his evidence on 13-6-1974 when the learned Rent Controller ordered the appellant to place on file treasury receipts and then adjourned the case for arguments to 19-6-1974. On this date the respondents filed an application complaining that the appellant had deposited the rent for the months of February 1973 and November 1972, on the 15th of March 1973 and 16th of December 1972, respectively, adding that the appellant had neither placed on record nor shown the other treasury receipts. It was, therefore, prayed that defence of the appellant be struck off and order for his eviction be passed forthwith. This application was contested by the appellant who through his reply submitted on 14-9-1974 conceded that the deposits were made in the treasury on the 15th of March and 16th of December, adding that he had paid the rent on "thirteenth" to the clerk of the Advocate who, on obtaining permission of the Court, deposited the rent with the treasury on the above dates. It was pleaded that late deposits were not deliberate and he was not a wilful defaulter. The case was adjourned for arguments to 7-10-1974 from which date, as per request, it was adjourned to 8-10-1974. Arguments were partly heard and the appellant was again asked to place on file the treasury receipts which he did on 10-10-1974 when arguments were heard and the case was fixed for orders the same day. Later, however. The appellant filed an application asserting that before striking off the defence it was necessary to frame the issue: "Whether the non-compliance of the order of the Court by the respondent is deliberate and for this reason the rent was not deposited". He, therefore, prayed that the issue be framed and the matter decided after recording evidence. The learned Rent Controller heard arguments on this application and fixed it for orders the same day, i,e, 10-10-1974 and later dismissed it in limine observing that the plea was without any legal substance inasmuch as it was not at all obligatory upon the Rent Controller to frame issues on such miscellaneous application.
On the application of the respondents, the learned Rent Controller observed :- "The respondent undoubtedly deposited future monthly rent for the months of November 1972, February 1973 and December 1973 either on the fifteenth day of the relevant month or on sixteenth day. It means that at least the monthly rent of these months was not deposited before the fifteenth day of requisite month."
' Consequently he accepted the application of the respondents, struck off the defence of the appellant and directed him to hand over vacant possession of the disputed premises to the respondents. This order was impugned by the appellant by way of an appeal before the learned Additional District Judge who dismissed the same on the 6th of May 1976. The appellant has now come up to this Court in second appeal.
3. Learned counsel for the appellant has vehemently argued that the evidence of both the parties had been recorded and the case was fixed for arguments when a belated application under section 13(6) of the Ordinance was moved although the respondents had waived their right and were consequently not entitled to move such an application. He relied on Syed Masood Hussain and others v. Muhammad Saeed Khan and others (0., He next contended that the defence of the appellant could not be struck of unless it was found, after framing of necessary issue and receiving evidence thereon, that the non-compliance of the order was wilful. According to the learned counsel, both the Courts below have failed to consider this aspect of the matter and their orders are, therefore, not sustainable. In support of his contention the learned counsel relied on Syed Muhammad Akram Shah v. Ch. Ghulam Nabi (2).
4. Learned counsel for the respondents, on the other hand, argued that it was established on record that the appellant did not deposit the rent for the months of November 1972, February and December 1973, in time and consequently it entailed the penalty provided by subsection (6) of section 13 in the shape of striking off the defence. He argued that the above provisions are mandatory and the learned Rent Controller had no alternative but to direct delivery of possession.
Reliance in this behalf was placed on Ghulam Muhammad Khan Lundkhor v. Safdar All (3) and Muhammad v. Syed Niaz Ali Shah (4).
5. There can be no dispute with the proposition that the consequences provided by subsection (6) of section 13 of the Ordinance for non-compliance with the order passed by the Rent Controller are mandatory in nature and the Rent Controller has no discretion to decide whether or not he would enforce the default clause. The moment he finds that the tenant has mad default in compliance of his order directing him (tenant) to deposit the rent, then if he be the respondent his defence is to be struck off and the landlord put into possession of the property without taking further proceedings in the matter. The word "default" has not been defined in the Ordinance but at
(1) PLD 1965 Lah. 11 (2) PLD 1967 Lah. 957
(3) PLD 1967 SC 530 (4) 1972 SCM R 30 the same time its scope and meaning have already been enunciated by their Lordships of the Supreme Court in the case of Ghulam Muhammad Khan Lundkhor, relevant portion whereof, with some advantage, is reproduced below :- "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere noncompliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no say, responsible or which was beyond his control."
' It will thus be seen that in cases where the failure to comply with the order is due to some avoidable cause, the Rent Controller has no option but to invoke the second Part of the provision of subsection (6) of section 13 ibi and to strike off the defence, but where the non-compliance is beyond the tenant's control then he has got no power to apply the penal provision. Faced with the question involving non-compliance of his order, the Rent Controller has to take it as a case of default and to strike off the defence. But where the tenant soon after non-complianct or within a reasonable time, give B some explanation the Rent Controller is duty bound to consider it and if for reasons to be recorded he feels the plea raised to be due to some avoidable cause he need not.Frame an issue and record evidence. In cases, however, where he prima facie, feels that the explanation has some substance, he is t give notice to the opposite-party and in the event of contest to frame an issue and decide the controversy after receiving evidence, and if after holding a due inquiry he reaches the conclusion that the tenant was a defaulter he ha no other alternative but to direct him to put the landlord in possession of the disputed premises. This is the statutory duty cast on the Rent Controller and he is expected to discharge it vigilantly.
6. In the case in hand it has been noticed that on a number of dates the learned Rent Controller did not require the tenant to place on file the treasury receipts and it was only on 13-6-1974 that he acted accordingly. This was a stage when both parties had closed their evidence. If the learned Rent Controller had required the appellant on earlier dates to place the treasury receipts on the file he could have noticed, much earlier, the non-compliance of his order and in the absence of any explanation based on unadvoidable cause, he could have proceeded to implement the mandatory provisions mentioned above. It is well settled that law must be given effect to the moment an eventuality requiring its application occurs and any failure on his (Controller's) part cannot be permitted to frustrate the legal provisions. In failing t notice for a long time, that the tenant had not deposited rent for the months of November, 1972 and February and December, 1973 the learned Rent Controller kept in abeyance the will of the Legislature. This, I say so because finally the learned Rent Controller found the appellant to be a defaulter.
7. This appeal, however, was admitted to regular hearing to consider if the respondents had waived their right to have the appellant's defence struck off. Relying on the case of Syed Masood Hussain, the learned counsel for the appellant contended that the respondents' delay in filing the application for striking off the defence was barred by waiver. Before dealing with this question I would like to point out that by order dated 13-6-1974 the Rent Controller required the appellant to place on file the treasury receipts but this was not done till 10-10-1974 when the appellant placed on file fourteen receipts. The rent deposited under these receipts was for fifteen months (one receipt is for deposit of rent for two months). Up to the date of filing these vouchers, the appellant should have deposited rent for 23 months, i,e, from November, 1972 to September, 1974. The fourteen receipts were appended with a form prescribed under Order XIII, rules 1 and 2, C. P. C., wherein a type of note is given that the other rent had also been deposited but the receipts had been misplaced and would be produced when found. The learned Rent Controller does not appear to have either required the appellant to produce the other receipts in original or any other authentic proof about the deposits having been made. This aspect of the matter has escaped the attention of both the Courts below. From this it can reasonably be deduced that the question involving non-compliance has not been decided in its entirety and in these circumstances, I am not inclined to examine the point of waiver, which otherwise has been raised for the first time in this appeal. In order to avoid protected litigation, I may observe that if the appellant fails to establish that he in fact strictly complied with the order of the Rent Controller by depositing the rent for other eight months, it should be taken that the appellant is a wilful defaulter. This I am saying because for these months the only plea taken is that receipts had been misplaced.
8. As pointed out in the preceding paragraph, there is no proof on the file to show whether or not the appellant in fact deposited the rent for the other eight months. 1, therefore, deem it proper to remand the case to the trial Court with a direction that it should require the appellant to produce other treasury receipts or in lieu thereof certificate from the treasury/bank showing the deposits made for these, months, and to decide the case afresh, within a period of three months. The trial Court shall further attend to the question of waiver and, if need be, to decide the case on merits as well.
9. For the foregoing reasons, I accept the appeal, set aside the orders passed by the Courts below and remand the case to the trial Court with the , direction as indicated in the last paragraph. Costs of this appeal would follow the event.