' This Second Appeal has been filed against the order of the Vth Additional District Judge, Karachi dated 10th March, 1979 dismissing the 1st Appeal and maintaining the order of the Rent Controller No, III, Karachi dated 16th July, 1978 in Rent Case No, 1000/76 on application under section 13(b) of the Sind Urban Rent Restriction Ordinance, 1959 striking off the defence of the appellant and directing him to hand over the vacant possession of the premises to the respondent within one month from the date of the order.
2. The facts of the case leading to the filing of the appeal are as under. The respondent is the owner and landlady of House No, A-I33, Block No, D, North Nazimabad, Karachi. The appellant is tenant of the respondent in respect of the premises at monthly rent of Rs, 250 p. m. On 26th February, 1976 the respondent filed an application under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959 stating that the house was reasonably in good faith required by her for bona fide use of herself, her husband and children. It was a case of the respondent that by notice dated 8th January, 1976 and 9th February, 1976 the appellant was called upon to vacate and hand over the premises but he did not care to reply. The application was made on the further ground that appellant had committed default in the payment of rent 't:or October, 1975.
3. The appellant in his written statement admitted the tenant)/ and the rate of rent but denied that he was habitual defaulter in the payment of rent. It was his case that he had tendered the rent for the month of October, 1975 by money order which was the previous practice but the respondent had refused to accept the money order and, therefore, the appellant had filed Miscellaneous Rent Case in the Court of XXI Civil Judge 1st Class and Rent Controller who had permitted him to deposit the rent in Court. He had been depositing the rent in Court eversince and was in possession of valid receipt issued by the Nazir of the Court.
4. With regerd to the plea of personal requirement the appellant in the written statement stated that the respondent had very good house in which she was living with her husband and children.
He, therefore, denied that the respondent had any need or bona fide requirement for the premises she sought to get vacated.
5. The learned Rent Controller settled the following issues :- "(1) Whether the opponent committed default in the payment of rent to the applicant ?
(2) Whether the applicant requires the premises in question in good faith for own bona fide occupation ?
(3) What should the order be ?".
6. On 2nd March, 1977 the learned Rent Controller passed tentative order which reads as under :- Advocates for the parties present. There is no dispute regarding rate of rent. There is dispute about the period of arrears of rent. The applicant claims rent from October, 1975 while the other side states that the rent has been deposited in Court from October, 1975 in Miscellaneous Application filed by the opponent. By consent it is ordered that the rent so deposited will be adjusted towards arrears of rent in this case. Further that from March, 1977 onwards the opponent will deposit the rent in Court in this case at the same rate i,e, Rs, 250 p. m. The opponent is directed to keep on depositing the future monthly rent on or before 14th of each calendar month."
7. The respondent made application under section 13 (6) of the West Pal.Istan Urban Rent Restriction Ordinance, 1959 dated 23rd May, 1978 sing that after passing of the tentative rent order by the Rent Controller they had been default in depositing the rent as ordered by the Court and, therefore, report may be called for from Nazir about the amount deposited and notice be issued to the appellant. The specific allegation was that the appellant had committed default in making compliance of the tentative order dated 2nd March, 1977 by depositing the rent for the month of April, 1978 on the 15th May, 1978. The learned Bird Rent Controller, Karachi by his order dated 16th July, 1978 after perusing the affidavit filed by the appellant explaining the position came to the conclusion that there had been default in compliance with the tentative order as the amount of the monthly rent of the month specified bad been deposited one day late i,e, on 15th May, 1978. It was the case of the appellant before the learned Rent Controller that he had not been able to deposit the rent on 14th May, 1978 as there was a long queue and the window of the Nazir was closed at 1 p. m. On that day. The learned Rent Controller repelled the plea by observing that the appellant knew about the importance of depositing the rent before the 15th of each month and implication of the failure to do so as he had earlier to face twice applications for striking off his defence which had been rejected considering the default to be of technical nature. In the second application which had been earlier rejected the appellant had almost taken similar plea that there was a long queue and he was suffering from Diahorrea and before his turn came the window of the Nazir was closed.
The learned Rent Controller further observed that the appellant had a period of 14 days for depositing the rent of the month which had fallen due. It was, therefore not necessary for him to wait till very last day for attempting to deposit the rent as he already knew the consequences of the failure to deposit the rent in time.
8. Against the aforesaid order of the learned Rent Controller the appellant filed his 1st Appeal which was heard by Vth Additional District Judge, Karachi and was dismissed with costs by Judgment dated 10th March, 1979. The explanation of the appellant was not found satisfactory also by the 1st Appellate Court and, therefore, the order of the learned Rent Controller dated 16th July, 1978 ordering the striking off the defence of the appellant was maintained. The earlier two failures to deposit the rent in accordance with the order of the Rent Controller which had been excused, were taken into account while considering the 3rd and final default and it was observed by the learned Additional District Judge that the appellant should have been mindful of his liability and should have been more vigilant.
9. The only contention which is to be considered in this appeal is whether the Rent Controller was not obliged to grant ejectment application and whether deliberate default on the part of the tenant was proved.
10. In Ghulam Muhammad Khan Lundkhor v. Safdar Ali decision of the Supreme Court, it was observed that, the word 'default' in legal terminology necessarily imports an element of negligence or default and means something more than mere non-compliance. It was further observed as under :- "To establish de fault 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 to the word 'default' should mean an act done in breach of a duty or in disregard of an order of direction."
11. In the instant case there was default in the payment of rent as it was not made in accordance with the tentative rent order on or before 14th of the calendar month. It is admitted position that the same was made on 15th of the month, thus there was delay in depositing the future monthly rent, of one day. However, as already stated while discussing the impugned orders of the Controller and the Additional District Judge it is apparent that the appellant was aware of the fact that payment could be made in time upto the 14th of the month but not thereafter.
12. It has been argued by the learned counsel for the appellant that previous defaults should not have been considered in coming to the conclusion that the 3rd one was deliberate as the previous two defaults were for reasons given by the Controller considered as not deliberate. This contention cannot be accepted as the learned Controller only mentioned previous two defaults to indicate that the appellant knew very well the implications of the tentative rent order. It is true that 'default' as appearing in section 13(6) of the Sind Urban Rent Restriction, Ordinance, 1959 is to be considered on the circumstances of each case and the Controller is not bound to strike off the tenant's defence in every case. The learned counsel for the appellant on this point relied upon the decision of erstwhile High Court of West Pakistan (Karachi Bench) reported in PLD 1963 (W. P.) Kar. 777).
However, in the instant case it is quite clear that the appellant fully knew implications of the tentative rent order that payment had to be made on or before 14th of every calendar month. This is specially to be considered as established because of the previous two instances of default for which applications under section 13(6) of the Sind Urban Rent Restriction Ordinance, 1959 had been made against him. There was no reason whatsoever for appellant to wait till the last moment for depositing the rent. As a matter of fact because of the previous experience if he really wanted to comply with the order he could have deposited the rent during the month long before the last date i,e, 14th. Having already experienced the long queue and the closing of the window of the Nazir's office previously, if he had in mind to obey the directive he should have been careful enough to deposit the rent earlier which he failed to do. There is another aspect of this matter that in case he had been standing in queue and right up to one o'clock when window was closed he could have gone to the Court of the Controller and sought permission for depositing the rent on the next day.
There is no explanation at all as to why he did not do so. In the Supreme Court decision in Muhammad Jan v. Khadim Hussain where tenant sought permission from the Court for depositing the rent late in the day but by the time he reached the Bank to deposit the amount, banking hours were over, it was held that default was committed due to negligence and, therefore, defence was rightly struck off. It was further observed that he could easily have avoided the default if he had1 2 gone to the Court and obtained the permission in time. In another decision of the Supreme Court in Zafar Qureshi and others v. Khawaja Maqsoodul Hassan, where it was contended by the counsel of the petitioner that there was only one day's delay in deposit of rent which should be condoned, it was observed as under :- "This contention overlooks the fact that in reality, the petitioner was given one full month or at least 15 days to deposit the amount of the previous months. As such if the petitioners deposited the rent one day after the time fixed, the delay in fact is much more than one day. In any case it was matter of discretion with the learned Rent Controller and we did not consider it fit case with his exercise thereon."
In the instant case for similar reasons I would not interfere with the exercise of the discretion by the Controller whose order was upheld in the 1st Appeal. There is, therefore, no merit in the appeal which is dismissed. The appellant is ordered to hand over vacant possession within one month of the date of this order. PLD 1976 SC 530 1973 SCM R 243 1982 SCM R 392