' This S.A.O. Is directed against two concurrent orders of a learned Rent Controller and a learned Additional District Judge whereby the appellant's defence was struck off for non-compliance of an order passed in terms of section 13(6) of the West Pakistan Urban Rent Restriction Ordinance for the deposit of the past arrears as well as future rent.
2. The eviction application was filed by the respondent/landlord against present appellant on 16-4- 1974 alleging default from July, 1973 till the time of institution. On 25-6-1974, the learned Rent Controller passed an order in terms of section 13(6) to the effect that the appellant shall pay arrears from July, 1973 to May, 1974 at the rate of Rs, 36 p.m. Amounting to Rs, 396 before 25th of July, 1974. It was further ordered that future monthly rent shall be deposited before 15th of each month. On 16th of July, 1974, the appellant deposited Rs, 432 and thus purporting to deposit the arrears of Rs, 396 and the rent for the month of June, 1974, together with other arrears.
3. In reply to the application filed by the respondent/landlord for striking off the defence, the plea raised by the appellant was to the effect that the default was not wilful but was under the bona fide impression that the rent for the month of June, 1974 was also included amongst the arrears to be paid before 25-7-1974 and thereafter the rent was to be paid for each month before 15th of following month. This erroneous impression is said to be based on the fact that the rent-deed also stipulates payment of advance monthly rent.
4. Learned counsel appearing in support of this S. A.
0. Has sought to argue that the order for the deposit of rent in. Terms of section 13(6) was passed by the learned Rent Controller on 25-6-1974 with the result that rent for the month of June, 1974 could be deposited before 15th of June, 1974 whereas in so far as arrears are concerned he had included the period up to May, 1974 to be paid before 25-7-1974. According to the learned counsel rent for the month of June, 1974 was already in arrears on 25-6-1974, therefore, in construing that the rent for the month of June was to be paid together with the arrears, the appellant acted under a bona fide impression and that there was no element of wilful default was demonstrated by the fact that he had in fact paid up the arrears on 16th July, 1974 instead of waiting till the last date i,e, 25-7-1974. This factor, according to the learned counsel for the appellant was a material circumstance reflecting on the bona fide of the appellant/tenant.
5. I have seen the order of the learned Rent Controller dated 12-12-1974 who has failed to pass a reasoned order to take into consideration the explanation offered by the appellant. He contented himself by merely stating that the version of the appellant is rejected and ordered to hand over the possession before 12-3-1975. The appellate authority also does not appear to have duly appreciated this aspect of the matter. I find some force in the submissions being made by the learned countsell for the appellant in facts and circumstances of this particular case that the order for the deposit of arrears of rent and future monthly rent made on 25-6-1974 when major part of the rent for the same month had already accrued due and, therefore, this did not properly fall within the future rent. It is as a result of this confusion that the appellant deposited the rent for the month of June, 1974 together with other arrears on 16-7-1974 without waiting for the expiry of the last date i,e, 25-7-1974.
6. The spirit of law is that if a person has acted wilfully in disobedience to the order of a rent tribunal then he has to be vested with the penalty of striking off the defence but if the element of wilfulness is missing as a result of bona fide belief for which a reasonable or plausible explanation has been offered then the element of contumacious or deliberate disobedience of the order will be found to be missing. This case has been on the daily cause list and I have received a word from the learned counsel for respondent Mr. Riaz Kayani, Advocate that he would not be defending the appeal and that it be disposed of in his absence. Nothing has, therefore, been urged on behalf of the respondent against the arguments being advanced by the learned counsel for the appellant.
7. I am also of the view that the initial order of the learned Rent Controller dated 12-12-1974 was rather perfunctory and lacks judicious approach inasmuch as he did not apply his own conscious mind to the contentions being raised and the plausible explanation being offered by the appellant.
In the facts and circumstances of the case, jurisdiction has not been exercised on proper appreciation of law and the facts of the case and his pleas have not received fair treatment at the hands of Courts below.
' In all these circumstances, I would accept this S. A. O. ; set aside the impugned orders and send the case back to the learned Rent Controller for proceedings in accordance with law. The learned Rent Controller shall proceed with the matter from the stage prior to passing of his impugned order dated 12-12-1974. Nothing stated in this judgment will prejudice the Rent Controller from deciding this question after taking into consideration such material or evidence or arguments as the parties may adduce before him. There shall, however, be no order as to costs. The case to be disposed of in three months as this is an old matter.