1. This appeal under section 15 (4) of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as the Ordinance) is directed against the order dated 24th -April, 1980 passed by the VIth Additional District Judge in First Appeal No. 345 of 1979 whereby the order of the Rent Controller dated 12th May, 1979 passed under section 13 (6) of the Ordinance striking of the defence of the appellant was confirmation--med and he was' directed to band over vacant possession of the premises to the respondent within 30 days.
2. The facts of the case briefly stated are as under The respondent who is owner of building constructed on Plot No. 2, Row No. 2, Sub-Block D, Block V, Nazimabad, Karachi had rented out the same to the appellant at the .Rate of: Its. 650 per month under a tenancy agreement dated Ist February; 1975.
3. On 5th November, 1976 the respondent filed application under section 13 of the Ordinance in the Court of the Second Rent Controller, Karachi on the grounds that the appellant was a habitual defaulter in the payment of rent, had without the consent of the respondent used the premises which had been taken on rent as a godown for a different purpose in breach of the conditions of the agreement as he had installed heavy machinery in it which was detrimental to the stability of the building; that the appellant had demolished the foundation wall of the kitchen on which rests the inside gallery of the building and had thereby materially impaired the value and utility of the building:. And finally that the respondent required the premises in good faith for the use of his sons, The appellant filed written statement dated 7th April, 1977 denying the alleged grounds and inter alia stating that he bad been paying rent at the rate of Rs. 650 per month and had also deposited the sum, of Rs. 1950 as security.
4. On 31st May,.1977 the learned'' Rent Controller passed the tentative" rent order which reads as under :- "The rate of 'rent is admitted by the parties. Learned advocate for opponent states that he is depositing rent in Miscellaneous Rent Application No. 4855/78 and has deposited rent upto May, 1977. I therefore direct the opponent to deposit the rent for the month of June, 1977 before the 15th July, 1977 and continue to deposit the rent of every month before- 15th of every calendar. Month in this case till the disposal of this case at the rate of Rs. 650."
5. It is obvious from a perusal of the record that the learned Rent- Controller had on the file the statement of the Advocate for the appellant dated 25th May, 1977 in which it was specifically stated that rent from August, 1976 upto 31st May, 1977 amounting to Rs. 6,500 had been deposited in Court in Rent Miscellaneous Application No. 4855/74. This statement was supported by photostat copies of the receipts obtained from the Court.
6. On 29th August, 1977 respondent filed application under section 13 (6) of the Ordinance praying for striking of the defence of the opponent (appellant) alleging therein that he had failed to comply with the tenta--tive rent order dated 31st May, 1977 under which he had been directed to deposit future monthly rent at. The. Rate of Rs. 650 commencing from the month of June,. 1977 before 15th of each succeeding month. The appellant filed his .Objections in which he totally denied the asser- -tion about failure to comply with the tentative. Rent order. The learned Rent Controller got the Nazir's report which showed that the appellant did not deposit rent of February, 1978 before 15th March, 1978 as the same was deposited on 21st March, 1978. The learned Rent Controller before who- the counsel for the appellant contended that the appellant remained under the impression that he was depositing the rent in advance and therefore the default was committed due to bona fide mistake and should not be considered as wilful default.; did not agree with the conten--tion and held that it was for the appellant to know as to the month of which he was depositing the rent in the Court, and further that such plea of bona fide. Mistake had not been taken by him in his objections. The appellant filed First Appeal in the District Court which was inci--dentally heard by the VIth Additional District and Sessions Judge, Karachi who, after going through the record and hearing the advocates of the parties, came to the conclusion that the contention of the counsel, for the appellant that the default was committed under bona fide mistake was not sound, acid that he did not know the position even at the time of filing objections. He further held that in any case the default was due to negli--gence and want of care on the part of the appellant to comply with the order of the Court and further that the appellant had failed to explain the delay of each day and there had been a delay of 7 days in this case which had to be explained by him. He therefore dismissed the appeal.
7. Mr. G. M. Salim, the learned counsel for the appellant, has repeated the contention that the default- in depositing the rent of the month of January, on 21st March, 1978 was owing to bona fide mistake and impres--sion that the appellant had been depositing scents in advance. He has raised the further contention that in view of the facts that Rs. 1950 haft been deposited as fixed deposits with the respondent under para 3 of the lease agreement which inter alfa provided that any dues, if not paid shall be deducted from the said deposit there could be no question of Rs. 650 for the month of February, 1978.
8. A preliminary objection has been raised by Mr. Amjad Hussain for the respondent that since there is concurrent finding the First Appellate Court on the point of default the aforesaid finding cannot be upset in second appeal. Such contention however had been raised and was inter alts decided by this Court in Zahid Hussain Khan v. Muhammad Abdullah (1) in which relying on the decision of the Supreme Court in Mohammad Aleem v. Noor Mohammad (2) it was held that the finding on the question that there was default by the tenant in payment of rent was a finding on a fixed question of law and fact and such concurrent findings of the Courts below could be displaced, by the High Court in Second Appeal.
9. A perusal of the record of the Rent Controller would show that in the tentative rent order which has been reproduced above the version on behalf of the appellant that rent amount of Rs. 650 had been deposited in the Court in Rent Miscellaneous Application No. 74855 of 1976 had been accepted by the Controller. The position that emerges therefore is that in the tentative rent order direction was made that the rent for the month of June, 1977 was to be deposited before 15th July, 1977. About this order therefore there could be no possible mistake that the future rent was to be deposited in advance. In actual fact the current rent of each month after June, 1977 was correctly deposited by the 15th of every calendar month as directed by the learned Controller and no mistake was made in depositing the monthly rent for the months of June, July, August, September, October, November, December, 1977, and the month of January, 1978. The appellant should therefore have got used even to the idea of depositing rent correctly and the assertion that while depositing the rent for February, 1978 on 21st March instead of 15th March the appellant was under the innocent mistake cannot be accepted as correct, The concurrent finding of the Courts below, therefore, cannot be considered to be based on misrepresentation, misreading of evidence or misstatement of facts. The only conclusion to be drawn from the. Facts is that the default was committed due to negligence.
10. It has been contended by Mr. G. M. Salim, the learned counsel for the appellant that mere failure to deposit the rent on the specified date does not amount to wilful default and that looking to the short period of
(1) PLD 1979 Kar. 628.(2) 1973 SCMR 606 i only 7 days after, which the rent was deposited, the penalty by way of striking of the defence under section 13 (6) of the Ordinance is too severe. ~~ The leading case on the point is that of Ghulam Muhammad Khan Lundkhor "The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpre--ting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the, rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice.
11. To quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those condi--tions are strictly fulfilled the privilege 'will not be available or the other party deprived of his rights under the law. Applying this principle in the present case the only interpretation that can be given to the provisions of subsection (6) of section I 3, of the Ordinance is that its words are mandatory and the Court has no further discre--tion left in the matter, for, the tenant cannot be entitled to - more than what the meaning of the words clearly import. But this does not mean that the Court is powerless to give a corrcet meaning to the word 'default' used in this subsection. It. Will still be neces--sary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Courts have purported to do in cases of this nature is to determine the true scope and meaning of the word `default' and to see whether such default has in fact been committed.
12. The Supreme Court in the same decision further observed :.- "The word `default' in legal terminology necessarily imports an element of negligence or 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 Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word 'default' should mean an act done in breach of a duty or in disregard of an order or-direction."
13. 1980 SCMR 298) the Supreme Court inter alia held that in every case of non compliance with the order of the Controller the question arose as to whether default is avoidable or not, and if it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows which is that of striking of the defence. It is only in cases in which the default is unavoidable that non- compliance is excusable, and in such cases that Rent Controller can condone non-performance of the direction.
14. With regard to the only other contention, namely, that since the security deposit had been made of Rs. 1950 the rent due for the month of February, 1978 could have been deducted therefore, the contention cannot be accepted.
15. Para. 3 of the tenancy agreement reads as under :- That the landlord also acknowledges to have received a sum of Rs. 1950 (rupees one thousand nine hundred and fifty only) as a fixed deposit without any interest towards the security for keeping the said premises in good condition, without causing any damage to The amount shall be refunded by the landlord to the tenant on receiving vacant possession of the premises in good condition.
16. Any dues if not paid and the cost of any damage caused to the premises shall be deducted from the said deposit. This amount shall not be used for any other purpose except as fixed deposit."
17. The first two sentences of the paragraph make it very clear that the deposit was towards security for keeping the premises in good condition and that it was only to be refunded or adjusted by the landlord to the tenant on receiving of vacant possession of the premises The words "any dues" used in the paragraph could hardly be considered to mean dues in respect of rent and the last sentence makes it clear that the amount is to be used for no other purpose except as fixed deposit.
18. PLD 1978 Kar. 149) was relied upon, and it was held that amount deposited by tenant with landlord by way of security to enforce compliance with contractual obligation cannot be adjusted towards rent.