SYED ARSHAD ALI, J. This consolidated judgment is directed to dispose of the instant petition as well as the connected W.P No.4329-P/2019 as common question of law and facts are involved in both the petitions.
2. Irfan Ullah the petitioner is admittedly landlord in respect of the demised premises (fully described in petition) under Section 13 of the West Pakistan Rent Restriction Ordinance, 1959 ("Ordinance") and respondents No.1 and 2 are his tenants.
3. On 20.02.2017 the petitioner had filed an application under Section 13 of the Ordinance against the respondents wherein he claims that he is a landlord of the demised premises, the agreed rent between the parties was Rs.3700/- per month and the defendants/tenants had failed to pay the rent in time and he also needed the suit premises for his personal need/reconstruction of the plaza.
4. The petition was contested by the respondents by filing a detailed written reply. When the matter came up for hearing on 04.10.2017, the learned trial court/Rent Controller had disposed of an application which was filed by the respondents for depositing the monthly rent in the court.
According to this order, the learned Rent Controller has confirmed that the rent till January, 2017 was paid hence directed the respondents to deposit the outstanding rent in court through Civil Nazir till 15th day of every month.
5. During the proceedings, the respondents absented themselves and for that reason they were proceeded ex-parte and resultantly an ex-parte order of ejectment was passed against the respondents on 29.05.2018. However, during the proceedings they had filed an application for setting aside the proceedings which was accordingly allowed.
6. Later during the recording of evidence, the petitioner who is a landlord in respect of the demised premises had filed an application for striking of the defence of the respondents owing to his default in payment of rent in court. It was alleged in petition that the rent for the months of November and December, 2017 was deposited in court on 30.04.2018 whereas the rent for the months of November and December, 2018 was deposited in court on 07.12.2018. The learned Rent Controller vide order dated 08.02.2019 allowed the said application and accordingly struck of the defence of the respondents by directing him to vacate the demised premises within 15 days.
7. This order was challenged before the learned appellate court, the learned appellate court vide impugned order dated 25.06.2019 allowed the said appeal, set aside the order passed by the Rent Controller and remanded the case to the trial court/Rent Controller for further proceedings in the matter.
8. The learned counsel appearing on behalf of the petitioner has argued that it was a case of wilful default as evident from record, therefore, the order of the learned Rent Controller while passing the impugned order for ejectment of the respondents from the demised premises is in accordance with the mandate of Section 13 of the Ordinance. In support of his arguments he has placed reliance on "Muhammad Yousaf vs. Muhammad Bashir and others (1990 SCMR 557), Namer Gul vs. Jalamber (PLD 2005 Peshawar 72), First Capital Equities Limited vs. Mrs. Ishrat Saleem (PLD 2008 Lahore 193)".
9. On the other hand, learned counsel for the respondents has argued that since the tentative order was not clear, therefore, the order of the learned appellate court does not call for interference. In support of his arguments he has placed reliance on "Mst. Razia Begum and another vs. Senior Civil Judge (Rent Controller), Charsadda and 02 others (PLD 1996 Peshawar 8), Peer Bakhsh vs. Additional District Judge, Multan and 02 others (2005 CLC 1700), Hassan Masood vs. S.M. Ahsan (1987 SCMR 655), Messrs Islam Coal Co. vs. Mir Ghulam Rasool and 02 others (1988 SCMR 1907)."
10. Arguments heard and record of the case was perused.
11. The perusal of the record would clearly show that the respondents were directed to pay the monthly rent by the learned Rent Controller vide order dated 04.10.2017. Though, it has not been specifically mentioned in the said order that what would be the monthly rent, however, the contents of the application filed by the landlord under Section 13 of the Ordinance and even the conduct of the respondents whereby he himself had requested the court to allow him rent at the rate of Rs.3700/- per month is evident from record. Thus, there was no confusion between the parties regarding the rate of rent as the respondents had been depositing the rent at the rate of Rs.3700/- per month pursuant to the order of the learned trial court dated 04.10.2017. Similarly, the fact that the respondents had failed to pay the monthly rent in court on two occasions i.e. the rent for the months of November and December, 2017 was deposited on 30.04.2018 whereas the rent for the months of November and December, 2018 was deposited on 07.12.2018 is evident from record, therefore, the question arises whether in such circumstances when the tenant has admittedly made default in payment of monthly rent pursuant to the order of the Rent Controller in terms of Section 13(6) of the Ordinance, the defence of the tenant/respondent was liable to be struck of under Section 13 of the Ordinance. In order to appreciate this issue, I would like to reproduce the governing law i.e. Section 13(6) which reads as under: - "13(6) In proceeding under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the 16[fifteenth day of each month] the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case.
Under line is for emphasize.
17[The Controller shall finally determine the amount of rent due from the tenant and direct the at the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant.]"
12. It appears that Section 13(6) ibid clearly envisages that if the tenant makes default in payment of rent in compliance of the order through which he was ordered to pay rent his defence shall be struck of. The word (makes default) occurring in the aforesaid Section is of considerable importance. This provision prima-facie does not show that an oversight default of the tenant would also be of the said serious consequence.
13. This Court in the case of "Khushi Muhammad vs. Abudullah Shah (PLD 1964 West Pakistan Peshawar 101)" has elaborately dealt with the issue of default and after considering the meaning of the word 'default' in different legal treatises has reached at a conclusion that the default would mean a wilful default and not one which may have been unavoidable. I would like to refer the relevant paragraph of the aforesaid judgment which reads as under: - "Thus, in any case there are reasons beyond the control of the tenant while making delay in deposit of rent in court pursuant to a tentative order for deposit of rent, his defence would not be liable to outright striking of. However, his attitude if remained casual, unbecoming and negligent in depositing the rent, his defence shall stand struck of in view of the clear command of Section 13(6) of the Ordinance."
14. In the case of "M.H. Mussadaq vs. Muhammad Zafar Iqbal and another (2004 SCMR 1453)", the Apex Court has confirmed the delay of 03 days in depositing the monthly rent pursuant to the order of court as a wilful default liable to striking of the defence of the respondent/tenant. The law laid down by the Apex Court in 'M.H. Mussadaq case supra' is also supported by the judgment of Apex Court in the cases of "Misbah Ullah Khan vs. Memoona Taskin-ud-Din (1995 SCMR 287), Province of Punjab vs. Muhammad Jalil-ur-Rehman (1986 SCMR 1705), Muhammad Yousaf vs. Muhammad Bashir (1990 SCMR 557), National Development Finance Corporation vs. Naseem- ud-Din (PLD 1997 SC 564)".
15. The close perusal of the entire evidence available on record would show that the respondents/tenants not only remained neglected in pursuing the case before the trial court/Rent Controller but has wilfully defaulted in payment of monthly rent on two occasions. Thus, the mandate of law is that his defence should be struck of resulting to the eviction of the tenants from the demised premises.
16. In view of the above, both the petitions are accordingly allowed. The impugned judgments i.e. Civil Appeal No.08/14 of 2019 and Civil Appeal No.09/14 passed by the learned appeal court are accordingly set aside and as a result thereof the respondents/tenants are directed to vacate the demised premises and handover its peaceful possession to the petitioner within a period of 02 months from the date of this judgment failing which the petitioner will have option to file an execution petition before the competent court of law.