The facts forming background of this Constitutional petition is that on an application for ejectment of the respondent from the premises in dispute, the learned Rent Controller vide his order dated 18th June, 1978, directed the petitioner to deposit Rs. 8,1000 before 13th September, 1978 as arrears of rent for 27-months commencing from March. 1976 to May. 1978, and to deposit the further monthly rent before 15th of each succeeding month. Then, on account of non-compliance of the afore--said order passed under Section 13(6) of the Ordinance, the learned Rent Controller struck of the defence and ordered ejectment of the petitioner vide order dated 23rd October, 1978. The appeal of the petitioner was also dismissed by the, Additional District Judge, Faisalabad on 24th September, 1980. These orders of eviction are under challenge in this petition.
2. At the time of preliminary hearing the learned counsel con--tended that both the Courts below have not given an opportunity to the petitioner to shoal that the petitioner has failed to Company with the order passed under section 13(6) of the Ordinance on account of bona fide mistaken advice of the counsel, though an affidavit of cite counsel was placed on the file of the Appellate Court on this point. The record was called for in order to verify whether inquiry had been made or not in this respect. The learned counsel has during arguments supported the above-noted plea by placing reliance on Din Muhammad and another v. Umar Hayar and others (1981 S CM R 326).
3. On the question whether inquiry was held or not, the learned counsel for the respondent-landlord pointed out that on 18th June, 1978, the tenant was ordered to deposit arrears of rent. For 27 months amount--ing to Rs. 8,1C0 before 13th September, 1978. But as rent for 24 months only was deposited instead of 27 months, an application was sub--mitted on 1st October, 1978 by the respondent- landlord for striking of the defence of the tenant. This application was replied vide reply dated 10th October, 1978, in which the plea taken was of wrong advice. The affidavit of the counsel who had allegedly give wrong advice was not filed at that time. Thereafter on 19th October, 1978, the amount repre--senting three months rent was deposited and then on 21st October, 1978, petitioner-tenant submitted an application for condonation of delay. Again this application was not accompanied with any affidavit of the counsel. This was replied to by the landlord and the alleged wrong advice plea was contested in view of above the learned counsel for the respondent submitted that proper inquiry was held by the Rent Controller and sufficient opportunity was given to the petitioner for substantiating the circumstances due to which the full amount of arrears of rent could not be deposited and for not complying with the order under section 13(6) of the Ordinance. He further contended that even the question whether the non-compliance/default was wilful or not, was gone into by the learned Rent Controller as well as the lower Appellate Court because the attention of both the Courts was specifically invited to this question through an application submitted by the respondent/landlord praying for striking of the defence and the petitioner-tenant had through another application prayed for the condonation of default committed. The learned Rent Controller, it was pointed out, dismissed this application of the petitioner while striking of the defence and ordering ejectment vide order dated 23rd October, 1978..
5. I agree with the argument of the learned counsel for the respon--dent and repel the plea of the petitioner that inquiry was not held before ordering eviction in respect of the alleged cause on account) of which non-compliance occurred.
6. The learned counsel next contended that in any case the default committed was not wilful as neither there was any negligence or fault in making short deposit and that in fact, the short deposit was on account of wrong advice of the counsel. To advance this submission support was sought from Supreme Court judgment referred to above as well as from Hashim Khan v. Ghulam Nabi and 7 others (1973 SCMR 112) Muhammad Ali v. Fazal Hussain and others (1975 SCMR 261) and PLD 1978 Kar. 898.
7. On the other hand the learned counsel for the respondent argued that reason of short deposit is the wrong advice of the counsel, but this plea is a false plea and in any case uptil the date, i.e. 13th September, 1978, by which the deposit was ordered to be made, there was admittedly no such wrong advice given. He referred to the affidavit of the counsel relied upon by the petitioner. This affidavit was filed before the lower Appellate Court in support of the plea of bona fide mistaken advice. Relevant para of the affidavit (Annex. `G' with the petition) reads as under :-
8. A perusal of the advice-quoted para clearly establishes that the alleged advice was given in December, 1978, whereas the deposit of the arrears of rent was required to be made before 13th of September, 1978. It may be added that the petitioner relied on this affidavit throughout, but it is of no avail to him as any advice given in the month of December is inconsequential. The giving of alleged advice in the said month was not controverted before me and it was not even suggested that month of December in the affidavit is incorrectly mention--ed. The plea of bona fide mistaken advice, therefore, fails.
9. Even if any such advice as is alleged was in fact given by a counsel, the same having been given recklessly and irresponsibly the same would not furnish a ground to contend that the advice so given was mistaken or bona fide. Reference may be made to the case of David Iqbal v. Rana Muzafar Khan (1979 SCMR 229). It was held in this case that opportunity to adduce evidence before striking of the defence need not necessarily always be given to a tenant as the basic requirement is to allow fair opportunity to a defaulting tenant to explain default on his part. In this case as indicated above, fair opportunity was given to the tenant to explain the default by the Rent Controller. The affidavit of the counsel was not filed then as it was filed before the Appellate Court.
The affidavit however, failed to show that at the relevant time any such advice had been given. In the above referred precedent case with reference to a similar plea that the default was not wilful as the counsel had not correctly apprised the tenant of the order of deposit of future rent, it was observed that "the petitioner was negligent in pro--secution of his defence in his failure to keep himself fully informed of the order passed by the Rent Controller. It cannot, therefore, be held that the default in the deposit of money rent was unavoidable and beyond the control of the petitioner."
It is clear from these observations that the order striking of the defence despite such a plea was upheld. The learned Judges in this very case referred to Hashim Khan v. Ghulam Nabi and 7 others and Saeedan Bibi v. Ali Hussain (1975 SCMR 261), which have also been cited by the learned counsel for the petitioner and these were held to be inapplicable by observing that as per facts of this case, there was no question of any wrong or negligent advice having been given by the counsel to the petitioner. In the instant case similar is the position a, was in case of Javid lqbal and I respectfully following the same reasoning hold that firstly in this case there is no question of any mistaken advice, secondly, assuming there was any such advice, the same cannot absolve the petitioner of the consequences as the advice given irrespon--sibly and without due care, cannot be treated as bona fide.
10. Be that as it may, no interference in the impugned orders of constitutional jurisdiction, as this Court cannot substitute its view as against the one adopted by the Courts below.
The petition, therefore, fails and is dismissed with costs.
M. Y. H. Petitioner dismissed.