1. ' This Second Rent Appeal is filed against the judgment dated 24th September, 1977 of learned IVth Additional District Judge Karachi whereby appeal against the rejection of application under section 13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959 for striking off defence by the learned Rent Controller, has been dismissed.
2. ' Briefly stated facts are that in the course of ejectment proceedings filed by appellant landlord against respondent tenant, tentative rent order was passed on 16th September, 1975 after hearing the counsel for parties and perusing the rent accounts and pleadings by the Rent Controller. Apart from arrears, the tenant was directed to ,deposit future monthly rent at the rate of Rs, 40 before 15th of every following calendar month till the disposal of the matter. An application for striking off defence was filed on behalf of landlord on 11th December, 1976 stating therein that tenant had failed to deposit rent from January, 1976 upto the date of filing application i. e. 11th December, 1976.
3. Notice of this application was issued to the tenant, who filed objections and after hearing Advocates for both parties, the learned Rent Controller held that the default was not deliberate and was due to circumstances which were beyond the control of tenant as the agent of tenant was sick and could not come to Karachi to deposit the rent in the Court, hence the application for striking off defence was rejected, against which appeal was filed before learned Addl. District Judge which was also dismissed.
4. I have heard the learned Advocate for both the parties. Initial objection was raised on behalf of the respondent that the question whether there is default or not is one of the fact and since both Courts below have given concurrent findings of fact that the default is not deliberate as such interfere is not called for in second appeal. This objection is patently untenable for the reason that there is plethora of case law on the point that finding on the question whether there was default in the payment of rent is one of a mixed question of law and fact, hence concurrent findings of the Courts below could be displaced by the High Court in second appeal. Reference can be made to the .Case of Muhammad Aslam v. Noor Muhammad (1).
5. ' It was next contended on behalf of the respondent that the word "default" in section 13 (6) of the said Ordinance does not have the same connotation as non-compliance of the order of Rent Controller to deposit the rent is such mere non-compliance is not sufficient reason but the Court has to see whether there has been default or not. Default as defined in Stroud's Judicial Dictionary embraces every failure by the defendant to perform his contract unless prevented by superior force over which he had no control. For this proposition reliance was placed on the case of Mst.
6. Shah Jehan v. Mst. Mukti (2). On this premises it was further contended that the Rent Controller has discretion to conclude whether default is deliberate or not and since both the Courts below have found that the default was not deliberate, such proper exercise of discretion should not be interfered with in second appeal. No doubt both the Courts below have relied upon this ruling noted above. There is also no cavil about the legal position enunciated therein on this particular point stated above. There are two important factors which are to be kept in consideration. Firstly discretion is to be exercised judicially and not arbitrarily and sound reasons are to be stated for such exercise. Secondly if the default is to be condoned as not deliberate and beyond the control of the party then also cogent reasons are to be given to justify such conclusion and it is imperative for the party alleging that default is not deliberate to give sufficient reasons of convincing . Nature to prove that default was beyond his control and unintentional. This will depend largely on the circumstances of each case.
7. ' In the instant case the tenant has failed to deposit monthly rent in the Court for a period of about 12 months after the tentative rent order was passed on 16th September, 1975. Application for striking off defence was made on 1 1 the December, 1976. The learned Rent Controller in his order dated 18th February, 1977 dismissing application of the landlord has stated that tenant had not deposited rent in compliance of the order of the Court, which is supported by the report of the Nazir (1) 1973 SCM R 606 (2) PLD 1963 Kar. 777 however, the learned Rent Controller was further impressed by the fact that tenant had deposited rent on 11 th December, 1976 in lump sum and further deposited two months rent in advance, which reflected his bona fide intention. Now the question is that default has been committed continuously for 12 months when rent was not deposited from January 76 to December 76 as against the direction in the tentative rent order that the rent is to be deposited before 15th of every following calendar moth regularly. This shows that default has been committed on at least eleven occasions. The reason given by the Rent Controller to condone the default is that it was argued on behalf of the tenant that one Mr. Zaki who pursued the case in the Court was out of station and could not come to Karachi due to illness, hence deposit could not be made, which was not deliberate and was due to circumstances which were beyond the control of the tenant. This reason is not supported by the record and no evidence has been produced in this context when default of nearly one year is sought to be condoned. In the written objections filed against the application for striking off defence it is not stated that Mr. Zaki was sick for one year. On the contrary it is only mentioned in the objections that Mr. Zaki was 2 out of Karachi and could not come earlier to deposit the rent. Even this particular assertion that Mr. Zaki was out of Karachi for such a long time is not supported by any evidence produced by the tenant. It is not the case of the respondent that no opportunity was given by the Court because application for striking off defence was filed on 1lth December, 1976 and notice was issued to the tenant and thereafter four dates were given by the Court and objections were filed on the second date i. e. 12th January, 1976, still no evidence was, produced that Mr. Zaki was away for one year or was sick as it is alleged. It is interesting to note that respondent/ tenant is Chemical Company which is a running concern and the rent could be deposited in the Court by any person on behalf of the company. Another striking feature of the case is that after the date of alleged default that is January 1976 the case was adjourned on eight occasions and from then on three such dates i. e. 26th May, 1976, 2nd August, 1976 and 19th October, 1976 the order sheet of the record of the Rent Controller shows that parties and their advocate's were present. From this an inference can be drawn that Mr. Zaki, who is stated to be the only person who pursued the case was present, but still rent could not be deposited for nearly one year. In these circumstances it cannot be said that the respondent/tenant has produced any convincing evidence to claim entitlement to the condonation of default of eleven months in depositing rent regularly in accordance with the tentative rent order and no justifiable reasons are assigned for dismissing the application of the appellant for striking off defence. For the facts and reasons mentioned above the impugned judgment of learned Addl. District Judge affirming the order of Rent Controller dismissing the application under section 13 (6) of the said Ordinance is set aside and consequently the defence of the respondent is struck off. Appeal is allowed with costs. Respondent/tenant is directed to handover vacant possession of the demised premises to the appellant/landlord within four months from the date of this judgment and he has to deposit rent regularly for these four months in accordance with the tentative rent order, failing which he would be of liable to ejectment if default is committed by him before the expiry of time allowed hereinbefore.