ALI AKBAR QURESHI, J.- Facts giving rise to the filing of FAO 10 of 2008 are that respondent filed an ejectment petition against the father of the appellants with reference to property No. M/44 H Haidar Road, Rawalpindi on the basis of agreement dated 16-9-2003, reiterating that premises was required for his personal need. Ejectment petition was resisted and contested by late father of the appellants on factual as well as legal grounds. Unfortunately, the original tenant Sh. Muhammad Iqbal, father of appellants expired on 29-5-2007, and thus, the appellants alone were impleaded as respondents being the legal heirs of the original tenant.
2. That in terms of order dated 29-5-2007, the learned Additional Rent Controller directed the appellants in terms of Section 17(8) of the Cantonment Rent Restriction Act, 1963, hereinafter to be referred as the Act, to deposit the arrears as also the monthly rent of the premises in question @ Rs.34,250/- per month from March 2007 to May 2007 totaling to Rs. 1,02,750/- before 20-6-2007 and also to deposit the future monthly rent before the 5th day of each succeeding month, and the appellants deposited the same on 9-6-2007.
3. It was the case of the appellants that whole family was under shock and grief on account of the demise of the original tenant/father of the appellants, and his Chehlum was to be held on 4th of July 2007 at Attock. And in connection with the preparation of the aforesaid Chehlum. of their late father, the appellants forgot to deposit the monthly rent for the month of June 2007 before 5th day of July 2007 Viz. 4-7-2007. However, the same was deposited following day i.e. On 5th of June 2007.
4. On account of the aforesaid default, respondents filed an application under Section 17(9) of the Cantonment Rent Restriction Ordinance seeking striking off appellants' defence on account of default of one day, in depositing the rent for June 2007, which was replied to by the appellants reiterating that on 4th of July 2007 being preoccupied in the Chehlum of their father at Attock, they could not deposit the rent on the said date. And the learned Judge by accepting the aforesaid application of the respondent struck off appellants' defence and directed them to hand over the vacant possession of the premises to the respondent, vide the order- impugned dated 9-1-2008.
5. Learned counsel for the appellants contends that the appellants are not the wilful defaulters, that no inquiry whatsoever was conducted by the learned Additional Rent Controller before passing the eviction order of the appellants from the premises in question, that the application, filed by the respondents as duly replied to by the appellants has not been disposed of in accordance with law. That towards the compliance of the order of the learned Additional Rent Controller, the appellants did deposit the arrears of rent within the time stipulated by the Additional Rent Controller. And that the monthly rent for the month of , June 2007 could not be deposited before 5th day of July 2007 i.e. On 4-7-2007 on account of the Chehlum of the father of appellants, which was neither intentional nor deliberate lapse, rather a bona fide mistake, whereas, it is reiterated that respondents complied with the order of the learned Additional Rent Controller by depositing the arrears of rent in letter and spirit It was also asserted on behalf of the appellants that their late father was survived by as many as 12 legal heirs, whereas, only the appellants four in number, were impleaded and in absence of rest of the legal heirs even otherwise, the order impugned is not sustainable in law. To substantiate his contentions learned counsel relied on PLD 1968 Karachi 521 (Visumal Chatumal Khilnan v. Ali Bakhsh and others), 1980 CLC 848, NLR 1981 AC .327, 1988 CLC 245, 1984 CLC 2196, NLR 1989 AC 820 and 1993 SCMR 1584.
6. Whereas, conversely learned counsel for the respondent contends that it is manifest from the record that the appellants committed default in the payment of rent as directed by the learned Additional Rent Controller, and hence, precluded from seeking any relief from this Court. Adds that under the law,, the learned Additional Rent. Controller is not authorized to extend the time as the order impugned was totally valid and unambiguous and for non- compliance, thereof, the appellants have become defaulter, so they cannot be granted any relief. To support his contentions, learned counsel has relies on 2004 SCMR 1453, PLD 2006 Lahore D'Andre PLD 2005 SC 34.
7. Arguments heard. Record perused Record reveals that order impugned was passed in absence of the learned counsel for the appellants on 9-6-2007 directing the appellants to deposit the arrears of rent as well as the monthly rent, which was compiled with by appellants by depositing the arrears of rent amounting to Rs. 1,02,7501- whereas, the monthly rent was deposited on 5th of June with the delay of one day. Appellants appear to have complied with the impugned order partly in letter and spirit, whereas, because of the Chehlum of their late father, they could not deposit the monthly rent on 4th of June 2007 because of the reasons disclosed in their reply to the application filed by respondent. In this view of the matter, it is to be seen whether the appellants in the facts and circumstances emerging from the instant case, could the appellants be considered as wilful defaulters in absence of any inquiry to this regard by the learned Additional Rent Controller. Admittedly, an .Application was filed on behalf of the respondent to initiate proceedings for the eviction of the appellants from the premises in question obviously on the ground of having committed default by them in the payment of rent for the month of June 2007 due on '4th of June 2007. The. Appellants furnished their reply to the aforesaid application disclosing their bona tides and reasons, but the learned Additional Rent Controller disposed of the same in a very casual manner, even without holding a summary in inquiry so as to ascertain whether the appellants had in fact become wilful defaulter, and no finding to this effect was recorded by the learned Additional Rent Controller in the case reported as PLD 1968 Karachi 521 (supra) while dealing with similar situation that failure in deposit on mothly rent, it has been observed that the Court has to see whether "default imports element of negligence or fault and means something more than mere non-compliance." Whereas, in this case the learned Additional Rent Controller has not exercised the jurisdiction vested with him by withholding even the summary inquiry. In another case reported as NLR 1981 AC 327, the High Court under similar situation as prevalent in the instant case, remanded the case to the learned Rent Controller so as to establish the default in the payment of rent after providing fair opportunity to the parties. The intention of the Legislature and the interpretation of the term "default and wilful default", the first and foremost consideration is to ascertain after conducting at least summary inquiry as to whether a tenant in fact is a wilful defaulter in the payment of monthly rent. Admittedly,, in this case no such inquiry even the summary inquiry was conducted.
8. Judgments cited at the bar by the learned counsel for the respondent are distinguishable on facts. In the case reported as 2004 SCMR 1453, tenant deposited the rent after delay of three days for the first month and with a delay of 10 days for the subsequent month, so in that case, the Rent Controller rightly struck off tenants defence and passed the eviction order because of the fact that the tenant committed successive default in the payment of rent, whereas, in this case, tenant admittedly deposited arrears of rent within the. Stipulated period of time and could not deposit the monthly rent on 4th of July 2007 for the reasons disclosed in their application. In another case cited by learned counsel for the respondent reported as PLD 2005 SC 34, the facts of that case are altogether different as in that case the learned Rent Controller directed to deposit the rent to the original. Tenant and not her son, whereas, the original tenant taking the plea, that during the relevant period her son met with an accident, hence, could not deposit the rent in time as given by the Court. In the aforesaid judgment, the learned Rent Controller also conducted summary inquiry by calling upon the tenant and also granted opportunity of hearing, whereas, in the present case, learned Additional Rent Controller did not conduct the summary inquiry.
9. Dealing with the second limb of the arguments raised by the learned counsel for the appellants that ejectment proceedings and consequently the eviction order passed by the learned Additional Rent Controller is untenable in law as the respondent did not implead all the legal heirs of deceased tenant Sh. Muhammad Iqbal. Record show and it is not denied by the respondent that original tenant is survived by as many as 12 legal heirs whereas, respondent, only impleaded the appellants four in number, so on fact of it, the eviction orders suffers from illegality and irregularity by the Additional Rent Controller. Dictum of law as laid down in the case reported as 1984 CLC 2196 and PLJ 1992 Karachi 424 is fairly applicable the facts and circumstances of the present case.
10. On 22-4-2008, both the learned counsels for the parties sought adjournment to seek instructions from, their respective clients for the remand of the case to the learned Additional Rent Controller to decide the controversy as to whether the appellants were in fact wilful defaulters keeping In view the contents of the application filed by the respondent and reply thereto furnished by the appellants. And on 23-4-2008 both the learned counsels for the parties stated that the case be decided on its own merit.
11 For the foregoing facts arid reasons, it becomes clear and obvious that the appellants partly complied with the order of the learned Additional and Rent Controller and deposited the arrears of rent and also deposited the monthly rent with a delay of one day and thus the default does not appear to be chronic and incurable. And that admittedly, no inquiry was conducted by learned Additional Rent Controller so as to ascertain with exactitude whether the appellants were in fact willful defaulter and that only the appellants have been arrayed as respondents of the original deceased tenant and the remaining have not been impleaded as party. In these circumstances and to ensure safe dispensation of justice, I am of the considered view that it is a fit case for interference with the result that impugned order is set aside, case is remanded to the learned Additional Rent Controller fo decide the aforesaid application of the respondent afresh by providing fair opportunity, of hearing to the parties within's period of 15 days of the receipt of this order, and thereafter to pass the final order strictly in accordance with law. Compliance report be transmitted to this Court through the Deputy Registrar, Judicial of this Court.