' This appeal has been filed under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance. 1959 against the order of the District Judge dismissing the appeal and confirming the order passed by the Rent, Controller directing ejectment of the appellant. The appellant is a statutory tenant of a small room. It is an admitted position that the respondents bad first filed a Rent Application No, 202/74 for ejectment on the ground of default but the same was dismissed on 31st July, 1978 as no notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 had been served on the appellant. The respondents have alleged that a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 dated 31st August, 1975! Was served on the appellants but he refused to accept the delivery. The appellant, therefore, again on 5th July, 1976 filed rent application for ejectment of the appellant on the ground of default. The appellant raised objections that as the respondents have not served notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 the rent application was not maintainable. He also denied that any default has been committed by him.
The appellant pleaded that in the previous Rent Application No, 202/74 an order for deposit of rent at Rs, 5 p.m. Was passed and up to the date of filing of the second application he continued to deposit the rent in the Court. In these circumstances while denying the default in payment of rent he also applied to the Controller for adjustment of the rent which had been deposited in Court in the prior proceeding. The Controller called for the Nazir's report which is on the record of the Controller. The report of the Nazir confirmed that from 111 21st December, 1974 till 25th September, 1977 the appellant had been depositing the rent regularly. The Controller passed an order that the amount deposited by the appellants in the Rent Application No, 202/74 be adjusted towards the Arrears in the second application. The Controller, however, treated the appellant as a wilful defaulter and ordered his ejectment.
2. In appeal the order of the Controller was maintained.
13. Mr, Hassan Mahmood Baig the learned counsel for the appellant has contended that the appellant had not made any default within the meaning of section 13 of the West Pakistan Urban Rent Restriction Ordinance 1959 as he had been making payment by depositing the rent in the office of the Controller. In these circumstances he contended that it was a sufficient tender as contemplated under law. He has further submitted that as the relationship between the parties is governed by section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which requires a tenant to tender the rent and not necessarily to physically pay the same to the landlord, the deposit of rent in Court is a sufficient compliance. He has further relied on section 30
(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and submitted that the relationship between the appellants and responde 's should be governed in accordance with the provisions of the Urban Rent Restriction Ordinance.
' Mr. Hatim All Siddiqui the learned counsel for the respondent has contended that there is a concurrent finding of fact holding that the default has been committed by the appellant and, therefore, it cannot be disturbed second appeal. He further contended that after service of notice under ection 30 of the Displaced Persons (Compensation and Rehabilitation) Act 958, in view of the provisions of section 30 of the said Act, which should construed strictly, the appellant was bound to pay the rent physically to he respondents and any deposit of rent in Court would not amount to ayment or tender of rent as contemplated under the provision of the Act.
4. At the outset it may be stated that reliance placed by both the arties on section 30 of the Displaced Persons (Compensation and Rehabiitation) Act 1958 is completely irrelevant for the present controversy. It is dmitted by the respondents that after the first ejectment application was ismissed the respondents sent a notice under section 30 dated 31st ugust 1975. It is to be noted that the entire controversy and dispute ietween the parties started after that date and ejectment application was led on 5th July, 1976. The Displaced Persons (Compensation and ehabilitation) Act, 1958 was repealed by Act XIV of 1975 with effect rom 28th January, 1975. In view of this repeal no notice under section 30 as required in August, 1975 or thereafter and the relationship between he parties could not be regulated by section 30 of Displaced Persons Compensation and Rehabilitation) Act, 1958. In the circumstances it has o be considered whether the appellants committed any default as conemplated by section 13 of the Urban Rent Restriction Ordinance.
5. Before entering into the merits it is convenient to dispose of the first objection of the learned counsel for the respondents. It is correct that both the Courts have held that the respondent has committed default. It as therefore to be seen whether such finding was based purely on appreciaion of evidence or on the basis of interpretation of law. The finding of oth the lower Courts on point of default cannot be said to be a finding purely on question of fact. There is hardly any controversy on the subtance of evidence that the appellants had been depositing the rent and in fact continued to deposit the rent even after the second ejectment application was filed by the respondent. In these facts the determination i.Vhether a default has been committed by a tenant within the meaning of .8 section 13 of the West Pakistan Urban Rent Restriction Ordinance relates to the interpretation of the said provision which, if not purely a question of law, is undoubtedly a mixed question of fact and law. The controversy does not require determination of facts. It only involves interpretation or law. In these circumstances the High Court is competent to interfer with the concurrent finding of the lower Courts. The word "default" has been the subject matter of judicial consideration in the case of Ghulam Muhammad Lundkhor v. Safdar All (1) where the following observation was made:-- "The word 'default' in legal terminology necessarily imports an element of negligence of default and means something more than mere non-compliance. 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 way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the legislative made bar its intention clear that construction must be preferred which will {{FOOT NOTE}}
(1) PLD 1967 SC 530 {{FOOT NOTE}} prevent manifest injustice and obviate hardship. On this princip too the word "default" should mean an act done in breach of a dut or in disregard of an order or directio n."
' Applying the above observation to the undisputed facts of the prese case it seems that the appellant had not wilfully made any default. I fact he had every intention to make payment and the fact that he h been depositing the rent in the Court demonstrates that the appella has acted bona fide without any intention to delay or in any mann harass the respondents.
' The learned counsel for the respondents has submitted that on receipt notice under section 30 of the Displaced Persons (Compensation and Reh bilitation) Act, 1958 the appellant should have paid the rent to the respo dents directly. The respondents however seem to ignore that they h demanded rent at the rate of Rs, 20 p.m. Instead of Rs, 5 p.m. Which h been ordered by the Controller in previous proceedings to be deposited Court. In these circumstances the appellant apprehending a dispute on t quantum of rent bona fide continued to deposit with the Controller.
Takin all these factors into consideration I am of the view that the appellant h not committed any default. The orders of both the learned lower Cour are set aside and the appeal is allowed with no order as to costs.