1. ' This is an appeal under section 21 of Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) which has arisen in the circumstances briefly narrated as under:- ' The respondents filed an ejectment application seeking ejectment of the appellants from the demised premises on the ground of subletting. ,wring pendency of the application the learned Rent Controller by tentative order, dated 2nd August, 1980 called upon the appellants to deposit rent arrears amounting to Rs, 4,284 for the period June, 1979 to July, 1980, before 15th September, 1980 and future monthly rent on or before 10th of each succeeding month. The appellants however deposited the rent for the month of August, 1980 on 14th September, 1980 and not on 10th September,1980 as per direction on containing on the above order. Consequently the respondents made an application under section 16(2) of the Ordinance for striking off the defence of the appellants. Notice of the application was duly given to the appellants but when the application came up for hearing neither the appellants nor their counsel was in attendance with the result that the defence of the appellants was struck off by order, dated 26th April,1981. Being aggrieved by this order, the appellants made an application under Order IX, rule 13 read with section 151, C.P.0 but the same was dismissed by order, dated 17th February,1983 which has been impugned in this appeal.
2. ' The arguments of the learned counsel for the parties were heard and relevant record was also perused with their assistance.
3. ' It is an admitted position that the rent for the month of August, 1980 was deposited on 14th September,1980. However, as per tentative order monthly rent was required to be deposited on or before 10th of each succeeding month. When the tentative order was passed on 2nd August, 1980, the rent for the month of August had not yet become due and therefore it could not be treated as part of rent arrears which according to the tentative order were to be deposited before 15th September,1980. On careful perusal of the said order, it would appear that it is in two parts-- One part relating to the date for depositing the arrears for the period from June, 1979 to July, 1980 and second part dealing with the depositing of future monthly rents which were to be deposited on or before 10th of each succeeding month. Obviously the rent for the disputed month of August, 1980 which became due at the end of the said month was payable on or before 10th September,1980 which was its succeeding month. But instead it was deposited on 14th September,1980. There has been four days delay in depositing the rent of August, 1980.
4. ' Although the learned counsel for the appellants frankly conceded that default has been made in depositing the rent of August, 1980, yet his argument was that the default was not wilful. According to him the appellants bona fide believed that the rent for the disputed month was to be paid alongwith other rent arrears. It was contended by the learned counsel that the tentative order should not be strictly construed but should be interpreted form appellant's point of view, as they understood the same. He submitted that the appellants who came from a class of shopkeepers do not possess the sense of law-knowing people and as such they were not expected to weigh each word of the order so as to make its strict compliance. According to the learned counsel there is absolutely no allegation that the appellants ever made any default in payment of rent during the entire period of the tenancy. He also submitted that if the appellants knew that the rent for August 1980 was to be deposited four days earlier, they could easily do so because the men who could pay a huge amount of Rs,4,284 in lump sum on 14th September would not have at all found it difficult or inconvenient to pay a paltry sum of Rs, 306 as monthly rent for the month of August on 10th September. Thus it was clear, he added, that it was owing to bona fide mis-understanding of the order that they delayed the payment for four days. The learned counsel contended that it is the wilful default which invokes penal action. According to him since the default attributed to the appellants was innocent, the order of striking off their defence was entirely erroneous. In support of his arguments the learned counsel for the appellants has referred to the meaning of "wilful" as given at page 473 of the Hand Book of Legal Terms and phrases by Muhammad Illyas Khan, Advocate. It reads as under:- "The word 'wilful' is defined in Black's Law Dictionary as act done with stubborn purpose, but not with malice, act done intentionally, knowingly, and purposely as distinct from an act done carelessly, hedlessly or inadvertently."
5. ' He has also relied upon: Ghulam Muhammad v. Mst. Raj Begum P L 0 1962 (W.P) Quetta 136; Mst.
6. Shah Jehan v. Mst. Mukti PLD 1963 (W.P.) Kar.
7. 777.
8. ' In the first case the tenant failed to deposit rent before 5th of each month by circumstances beyond his control. Consequently he was not held to have committed default. On the strength of this authority, the learned counsel for the appellants argued that as the appellants bona fide misunderstood the requirement of the tentative order, the default committed by them was beyond their control. I am afraid this authority does not help the appellants. In the instant case as has been pointed out above, the tentative order is so clear that it does not admit of any misunderstanding or confusion misleading the appellants to commit any error.
9. ' In the second case reference has been made to definition of default given in Stroud's Judicial Dictionary. It is defined as under:- "Default would seem to embrace every failure by defendant to perform his contract unless prevented by superior force over which he had no control, such as stress of weather."
10. ' Keeping in view the above definition it was held: "I think the word 'default' has been used by the Legislature in the sense as defined above. This authority too is also of no avail to the appellants who are not shown to have been prevented by any superior force from depositing the disputed rent in time.
11. ' On the other hand the learned counsel for the respondents have relied upon the following authorities: namely Ghulam Muhammad Khankund Khor v. Safdar All P L 0 1967 SC 530, Javaid Iqbal v. Rana Muzaffar Khan 1976 SCMR 229, Muhammad Wall Khan v. Dr. Jawad Ali Khan PLD 1983 Kar.425.
12. ' In the case of Ghulam Muhammad Khan, the Supreme Court has almost exhaustively dealt with the word 'default'. Not only its meaning has been explained but also the scope of the Rent Controller's powers to deal with the case has been defined. At one stage it has been held: "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. 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 interpreting 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 to quit but also to correlatively 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 conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law."
13. ' Proceeding further the Supreme Court was pleased to observe: "But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible The word "default" in legal terminology necessarily imports an element of negligence or fault 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".
14. ' In the case of Javaid Iqbal it was held: "In this case, as rightly held by the High Court not only the counsel but the petitioner also was negligent in the prosecution 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 the monthly rent was unavoidable and beyond the control of the petitioner."
15. ' In the case of Muhammad Wali Khan the view taken was that the tenants defence was liable to be struck off on proof that he failed to comply with the directions contained in the tentative order for deposit of rent for which as explanation was given by him.
16. Judging the default committed in the instant case in the light of the above authorities I am of the view that there is no justification for its condonation or holding it as innocent. It is not pleaded that the tentative order is in any way ambiguous. If the appellants did not apply their mind and misconstrued the same, they should only thank themselves. The respondents cannot be made to suffer on account of misreading by the appellants of the order which was couched in clear and unambiguous language.
17. ' In view of the above finding that the non-compliance of the tentative order by the appellants was inexcusable, the contention that the said order was passed ex parte behind the back of the appellants without affording them reasonable opportunity of hearing is without force. Even if they had appeared and furnished their explanation, it would have made no difference. As has been held above the explanation furnished by their counsel in course of his arguments in regard to the default made by the appellants in depositing the disputed rent in time has been rejected as unsatisfactory. Thus their presence would not have altered the fate of the case.
18. ' The next contention of the learned counsel for the appellants was that the ejectment application was not maintainable as the same was made against the Firms which are admittedly not registered and the partners thereof were not made parties. In reply to this argument, the respondents placed reliance on Messrs Korangi Sizing Works v. Muhammad Rahim 1982 CLC 2455 wherein it was held: "If a firm can be a tenant in law, it must follow from it that it may also be sued....Furthermore, the appeal has been filed by the firm. If the rent application was not competent against the firm, the appeal is also not competent as it has been filed by the appellant firm."
19. In the instant case the tenants are obviously appellant firms. Consequently in terms of the above authority with which I respectfully agree, rent proceedings against them are competent without joining the individual partners thereof as parties. As in the above reported case, so in the instant case the appeal under consideration has also been filed in the names of Firms. Accordingly the above contention if without force.
20. ' In another case of Co-operative Development Funds and Projects v. Glimmar Textile Printing Industries, Karachi P L 0 1976 Kar. 808 the view taken was that the definition of 'Tenant' extends even to body of persons acting as Firm whether registered or not.
21. ' The last point convassed at the bar was with regard to limitation. It was submitted that order by which the defence of the appellants was struck off was made on 26th April, 1981 whereas the application for setting aside that order and the application under section 5 'f the Limitation Act for condonation of the delay made in making the first mentioned application were simultaneously filed on 19th July, 1981 which were clearly time-barred. The learned counsel for the respondents has, on the basis of following two authorities, argued that section 5 of the Limitation Act is not invokable in the rent cases and therefore the delay in moving the application for setting aside the order of striking off the defence could not be condoned and consequently the said application being time- barred was not entertainable.
22. ' In the case of Syed Muhammad v. Mazahar All Khan PLD 1981 Kar. 76, it was held: "I therefore hold that the provisions of section 5 of the Limitation Act are not applicable to appeals under section 21 of the Ordinance and consequently all applications under section 5 of the Limitation Act are not maintainable."
23. ' The above view was affirmed by the Supreme Court in the case of Abdul Ghaffar and others v. Mst.
24. Mumtaz PLD 1982 SC 88 wherein it was held: And it is not denied that the said two clauses when read together in the context of Sind Rented Premises Ordinance, 1979 do exclude S.5 of the Limitation Act. Therefore the learned Single Judge of the High Court has rightly refused to apply the same in this case."
25. Thus it is clear that the limitation period prescribed for filing appeal under section 21 of the Ordinance cannot be expanded by condoning the p delay under section 5 of the Limitation Act, as the latter section has not been made applicable to rent cases as the same has not been incorporated in the Rent Ordinance by any express provision.
26. The learned counsel for the appellants controverted the above argument and contended that the condonation application was made for condoning the delay made in the application under O. IX, rule 13, C.P.C. And not the appeal under section 21 of the Rent Ordinance. The argument is preposterous for the simple reason that since section 5 of the Limitation Act has not been extended to rent cases. It will not apply to appeals and applications arising from such cases. It cannot be made applicable by deeming the application to which it relates to have been made under some provision of the Civil Procedure Code. In fact as is clear from section 20 of the Rent Ordinance the provisions of the C.P.C. Except those specified D in the said section are inapplicable in the rent cases. Accordingly the application purported to have been made under Order IX, rule 13, C.P.C. Was strictly speaking not maintainable. Then the question would arise whether the appellants had no remedy against the order of striking off their defence. Reply to this is obviously in the negative because the rent case having been terminated with passing of the said order, the appellants could have recourse to filing of appeal against that order as it was final order within the meaning of section 21 of the Rent Ordinance.
27. ' For the foregoing reasons there was no merit in appeal which was dismissed by short order, dated 28th February, 1984. By consent of the learned counsel for the parties the appellants were directed to hand over vacant possession of the premises to the respondents on or before 28th August, 1984 subject to payment of rent and electric charges regularly. In the event of default made by the appellants in this behalf they will be ejected without further notice.