' This Constitutional Petition is directed against order dated 16-9-1981 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal and maintained order dated 7-4- 1980 of the learned Rent Controller, Lahore striking off his defence and directing his ejectment from the disputed shop.
2. The relevant facts of the case are, that the respondent No, 1 filed application seeking ejectment of the petitioner from the shop in dispute on the grounds that he had defaulted in paying rent to her and that the same was required for her personal use. The ejectment petition was resisted by the petitioner. The learned Rent Controller vide his order dated 24-5-1979 directed the petitioner to deposit arrears of rent at the rate of Rs, 350 p.m. Before 27-6-1979 and future monthly rent at the same rate before 15th of each succeeding month. It appears that the petitioner deposited arrears of rent before the due date but could not deposit rent for the month of June, 1979 before 15-7-1979.
' On 17-1-1980 the respondent No, 1 moved application for striking off his defence on the ground that the petitioner did not deposit rent for the month of June, 1979 before I5th of July, 1979 and failed to comply with aforementioned order of the learned Rent Controller. The petitioner also applied for condonation of one day delay in deposit of rent for month of June, 1979 on the ground that the default was not wilful but occurred due to mistaken advice of his counsel and unexpected rush in the bank premises. The learned Rent Controller however did not condone the delay. He vide his order dated 7-4-1980 struck off his defence and directed his ejectment from the disputed shop.
' Feeling aggrieved against the aforesaid order, the petitioner preferred appeal, which also failed on 16-9-1981 before the learned lower Appellate authority. Hence this petition.
3. Learned counsel for petitioner contended, that the petitioner had deposited arrears of rent before the due date, and deposited the rent for the month of June, 1979 on 15th July, 1979 as he was given to believe by his counsel that deposit of future monthly rent could be made by 15th of succeeding calendar month. Despite that he made bona fiae effort even on 14-7-1979, to deposit rent for the month of June, 1979 but due to unexpected rush in the Bank premises he could not do so. It was submitted that in any case it was not a wilful default. It was argued that unless it was proved that wilful default was committed in depositing rent for the month of June, 1979 the Rent Controller was not obliged to strike off petitioner's defence. He relied on Sarfraz Khan v. Muhammad Abdul Rauf (I), Fazal Haque v. Abdul Latif Akhund (2) and Ch. Muhammad Siddique v. Muhammad Rashid (3) in support of his submission. It was also argued that the petitioner had deposited with the respondent No, 1 a sum of Rs, 20,500 as security for due performance of the terms of agreement dated 12-3-1974, executed between the parties. Learned counsel referred to one of its clauses, and stated that if some amount of rent fell due against the petitioner on the day of the vacation of the shop, the same was deductable from the aforementioned amount of security lying with the respondent No,
1. It was pointed out that the so-called default of one day in deposit of rent could be a technical default. The learned Additional District Judge, did not take into consideration this aspect of the case and directed petitioner's ejectment. He relied on Muhammad Yousuf v.
Abdullah (4) in support of his contention.
4. Learned counsel for the respondent No, 1, opposed this petition and contended that in the instant case the petitioner did not comply with the order of the learned Rent Controller passed under section 13 (6) of the Urban Rent Restriction Ordinance, 1959 as he failed to deposit the rent for the month of June, 1979 before 15th of July, 1979 and therefore, his defence was rightly struck off by the Rent Controller and ejectment ordered. Learned counsel stated that the default in payment of rent even of a single day was not condonable in view of the conduct of the petitioner. He relied on Muhammad Jan v. Khadim Hussain (5) in support of his submission. It was further stated that the amount of security deposited by the petitioner was not adjustable towards the rent, but in terms of the agreement was refundable, on the day he vacated the shop. It was next submitted that the provisions of section 13 of the Urban Rent Restriction Ordinance, 1959 are clear whereby the tenant is required to pay rent before 15th of each succeeding month ; which means that he has to pay or deposit rent at the latest on 14th of each succeeding month. The word `before' used in the Statute clearly indicates that the last date for payment of rent would be 14th and not 15th. He relied on Muhammad Hussain v. Mian Mahmood Ahmad and 3 others (6) in support of his contention.
5. The first question requiring determination in this case is ; as to whether the petitioner in depositing rent for the month of June, 1979 on 15th
(1) PLD 1969 Kar. 176 (2) PLD 1975 Kar. 681
(3) 1982 SCMR 636 (4) PLD 1980 SC 298
(5) 1973 SCMR 243 (6) PLD 1970 Lah. 140 ' of July, 1979 committed default and rendered himself liable to ejectment as contemplated under section 13 (6) of the Urban Rent Restriction Ordinance, 1959. It is an admitted fact that the respondent/landlady on 17-1-1980 applied for striking off petitioner's defence as according to her he failed to comply with the order of the learned Rent Controller. The petitioner on 6-2-1980 filed reply and moved application on the same day for condonation of one day s delay in deposit of rent. He gave two-fold explanation for deposit of rent on 15-7-1979 ; viz. It was deposited on the advice of his counsel, that a valid deposit of rent could be made on 15-7-1979 and further that he made effort to deposit rent on 14-7-1979 but failed due to unexpected rush in the Bank premises.
The explanation was not accepted and his defence was struck off. The delay of one day in deposit of rent was not condoned. The reason for non-deposit of rent on the due date under the mistaken advice of counsel was taken into consideration by the Supreme Court in Saeedan Bibi v. Ali Hussain
(1) and it was observed as under "It is quite clear from the facts of the case that the respondent acted on the advice given to him by his counsel and in such circumstances he could not be penalized merely because the advice given to him proceeded on a misinterpretation of the Rent Controller's order. We, therefore, do not see any reason to interfere with the impugned order."
' Similarly in Hasham Khan v. Ghulam Nabi and others (2) the Supreme Court further observed :- "The appellant acted on the advice given to him by the learned counsel and he could not be penalised merely because the counsel's advice proceeded on a misinterpretation of the Rent Controller s order. In any event, we feel that it was a case of bona fide mistake both on the part of the counsel and the appellant in the construction of the order of the learned Rent Controller and there was thus no case of wilful default on his part."
' Lastly in Ch. Muhammad Siddiq v. Muhammad Rashid leave was granted by the Supreme Court to consider, whether the deposit of future monthly rent before 15th of each succeeding calendar month could mean deposit of rent made, before the expiry of 15th day of the month i,e, by mid- night between 15th and 16th of calendar month. The leave granting order in the above-referred case was based on the contention raised by the learned counsel that the deposit could validly be made before the expiry of the 15th day of the month.
The contention of the learned counsel for petitioner if considered in the light of the above citations has substance that the petitioner believed on the advice of his counsel that a valid deposit of rent could be made on 15th of July, 1979 particularly when there is no evidence that he was conscious of the default committed by him before it was pointed out by the opposite side.
I, however, do not subscribe to the contention that "before 15th of succeeding month" could mean before the expiry of 15th day of the month and I am of the view that the word "before 15th of the month" means a date which precedes 15th of the month. This view finds support from the interpretation of the word "before" occurring in Muhammad Hussain's case, cited by learned counsel for the respondent, but subject to decision of the Supreme Court in Ch. Muhammad Siddiq's case, referred above.
(1) 1975 SC MR 261 (2) 1973 SCMR 112 ' Now, the question arises, whether non-deposit of rent on 14th of July, 1979 in terms off the order of Rent Controller in the circumstances of the case merited striking off petitioner's defence and straightaway warranted his ejectment. In other words, whether the petitioner in not complying with the order of Rent Controller committed wilful default. On this point the Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali (1) observed as under :- " The word "default" in legal terminology necessarily imports an element of negligence or fault and means something more than mere noncompliance. To establish default one must show that the noncompliance 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 or direction."
' It is, therefore, clear that in order to attract the provisions of section 13 (6) of the Urban Rent Restriction Ordinance, 1959 the mere noncompliance of the order of Rent Controller would not necessarily call for striking off defence unless it is proved on record that the petitioner acted negligently in not depositing rent before the due date.
6. The cases cited on this point by the learned counsel for the respondent, are distinguishable ; for instance, in Muhammad Jan's case, there was clear default. In that case the tenant acted negligently in depositing rent before the due date. The default committed by him was wilful and in disregard of the order of the Rent Controller, but in the circumstances of the instant case the petitioner did not commit wilful default in depositing rent for the month of June, 1979. The delay occurred due to mistaken advice of his counsel for which his right of defence could not legitimately be forfeited.
7. There is yet another aspect of the case which required consideration. The petitioner had already deposited a sum of Rs, 20,500 as security for the due performance of the terms of agreement executed between the parties. One of the terms was that the outstanding amount of rent would be deduct-able out of the amount of security at the time of the vacation of the shop. This aspect of the case was not adverted to, by the lower appellate authority although it was specifically pointed out by the petitioner. It was imperative for the Rent Controller as well as the first appellate authority to have considered this aspect of the case while passing order under section 13 (6) of the Urban Rent Restriction Ordinance, 1959 in view of the law laid down in Sh. Bashir Ahmad v. Nisar Ahmad and another (2) and pronouncement made by the Supreme Court in Muhammad Yousuf v.
Abdullah (3) relevant to the extent is reproduced as under :- It is true that the appellant had not demanded the return of his deposit on the expiry of his lease, and further as the debtor, it was for him to find the creditor, therefore, he should have informed the respondent to adjust the arrears of rent against his deposit with the respondent.
(1) PLD 1967 SC 530 (2) PLD 1970 Lab. 302
(3) PLD 1980 SC 298 ' This he did not do, but even on the footing that this resulted in a failure to pay rent within the meaning of section 13 of the said Ordinance, it was a very technical default and it would reduce the law to a farce, if the respondent was evicted for being in debt to the respondent (on account of his failure to pay rent) when in fact the overall position was that the respondent was in debt to the appellant. Therefore, there, could not be a more appropriate case for the exercise of the Court's discretion under section 13 of the said Ordinance in the tenant's favour. Accordingly, even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, we have no hesitation in exercising our discretion in his favour. We, therefore, set aside the eviction order passed by the three Courts below and allow the appellant's appeal. However, as the appeal turned on a question of law which had not been decided by this Court, we leave the parties to bear their own costs."
9. The upshot of the above discussion is that it was not a fit case to apply the provisions of section 13 (6) of the Urban Rent Restriction Ordinance, 1959, so as to strike off petitioner's defence and summarily eject him from the disputed shop.
10. In the result I find that the orders of the learned Rent Controller as well as the first appellate authority are contrary to the law laid down by the superior Courts and declare the same having been passed without lawful authority and of no legal effect. The case is remanded to the learned Rent Controller for further proceeding in the matter in accordance with law.
10. There shall be no order as to costs. . Case remanded.