1. ' This appeal has been filed against the order of ejectment against the appellant passed by Senior Civil Judge and Rent Controller, Jacobabad on 4th October, 1983 directing the appellant to hand over the vacant possession of the premises occupied by him to the respondent within two months from the date of the order. This order was passed under section 16(2) of the Sind Rented Premises Ordinance, 1979 in the following circumstances.
2. The appellant is a tenant of premises bearing City Survey No. 636, Ward No.3 situated in Jacobabad at the rate of Rs. 200 per month and he is using this premises for tethering the cattle. The respondent is the landlord. The respondent filed a rent application claiming the possession of the premises on the grounds of default in payment of rents from 1st October, 1979 to 31st August, 1982, for personal use and occupation. The appellant filed written objections to this application contesting all the grounds. The learned Rent Controller before proceedings to dispose of the application on merits passed a tentative rent order on 7-2-1983 requiring the appellant: "to deposit the arrears of rent tentatively at the rate of Rs.100 per month from 1-10-1979 to 31-1-1983 for 40 months amounting to Rs.4,000 in two equal instalments to be paid on 28-2-1983 and 15-3- 1983 respectively. "He further ordered to deposit the future rent at the rate of Rs.100 per month on or before 10th of every succeeding calendar month till final decision of rent application with a further direction that the respondent would not withdraw the amount till further orders."
2. ' The above quotation is taken from the grounds of appeal which continues further to state:- "The appellant deposited the rent arrears as directed and also deposited the rent for months February and March. But he deposited the rent for the month of April 1983 on 12-5-1983."
3. ' To cut short the narrative I may at once say that the misfortune of the appellant has occurred because he deposited the rents of April on 12-5-1983 instead of 10th and thus there was a default of two days resulting in his ejectment and obliging him to file the present appeal. The respondent filed an application dated 23-5-83 under section 16 (2) of the Sind Rented Premises Ordinance, 1979 praying for striking off the defence of the appellant on account of the default of two days in deposit of the rent for the month of April. The appellant filed objections on 21-6-1983 stating that the default occurred on account of serious illness. He also filed a medical certificate in support of his explanation for his illness. The learned Rent Controller after perusing the report of the Nazir and confirming that a default of two days had actually occurred passed this order allowing the application of the respondent under section 16 (2) and ordering the ejectment of the appellant from the premises on account of this default. The short point that falls for determination in this appeal is whether this order should be vacated and the explanation offered by the tenant should have been accepted by the learned Rent Controller.
4. Apparently this order seems to be very harsh because the appellant had complied with the part of the order in depositing the arrears of Rs.4,000 according to the schedule prescribed in the order. He has also paid rents for the months of February, March in time. But the question involved has come for consideration before the Supreme Court in a number of cases and since 1967 when the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 was decided there is a chain of authority interpreting the provisions relating to the default in depositing the rents in terms of a tentative rent order passed by the Rent Controller. Formerly such an order was passed under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 and now it is being passed by the Rent Controller under section 16 (2) of the Sind Rented Premises Ordinance, 1979 which runs as under:- "16 (2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under subsection (1), his defence shall be struck off and the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf."
5. ' The Supreme Court has not changed the view since the above case was decided and the following cases have been decided since then in which the same view has been reaffirmed. Any attempt to make any deviation from the course set by the Supreme Court has been discouraged.
6. Latest in the Series on which one can lay his hands upon is a case decided by the Full Court reported in PLD 1983 SC 1. The leading judgment in this case was written by Zaffar Hussain Mirza, J.
7. His Lordship after reviewing the case-law and relying on the dictum laid down by Hamoodur Rehman, J, in the Lundkhor's case rejected all the contentions raised by the appellant in not complying with the tentative orders passed under section 13 (6) and reaffirmed the view expressed in the Lundkhor's case. The pith and substance of the authorities is that the tenant can enjoy the special protection offered to him in this special statute only if he strictly complies with the reciprocal obligations prescribed in the Act.
8. ' The question of non-compliance of the tentative order has arisen in a number of cases in different situations and the view has consistently prevailed that the default in complying with this order is not condonable by the Rent Controller and any lapse on the part of the tenant should result in the penal consequences that are prescribed for its non compliance in the section itself.
9. ' Another case decided by the Supreme Coure is reported in 1982 SCMR 985 in which the default of only one day in deposit of rents in terms of the tentative rent order passed by the Rent Controller was dealt with in the following manner by the late Waheeduddin Ahmed, J.- "Ch. Muhammad Hussain the learned counsel for the petitioner has not disputed that the petitioner has defaulted in the payment of rent by one day. Instead of depositing the rent for the month of September, 1976 on 14th October, 1976 he deposited it on 15th October, 1976. Thus there was a delay of one day in the deposit of rent. The learned counsel has urged that the wife of the appellant was ill and, therefore, he failed to deposit the money in time.
10. According to him there was no wilful default and it should be condoned. He relied on Abdul Majid v.
11. Saadullah.
12. ' We have full sympathy with the petitioner but the view of this court in Ansari Bros. v. Holy Trinity Church Trust is that the Rent Controller has no power to condone the delay under section 13(6) of the W.P. Urban Rent Restriction Ordinance, 1959. The petition is dismissed. We would, however grant four months' time to the petitioner to vacate the premises, in dispute."
13. ' With this observation prayer for condenement of one day's delay was rejected.
14. ' Another case decided by the Supreme Court is reported in PLD 1971 SC 700. At page 707 the following view of section 13 (6) was taken by the Supreme Court:- "Section 13(6) of the Ordinance is a mandatory provision providing that in case of default in compliance with the Rent Controller's order to pay arrear rent and future monthly rent, the Rent Controller shall strike off the defence of the tenant and put the landlord into possession. That this provision is mandatory will be evident if it is compared with the provision of section 13(2) of the Ordinance which provides that, in the event of any of the contingencies mentioned in clauses (i) to
(vi) thereof, the Rent Controller may make an order directing the tenant to put the landlord into possession. The question whether the provision of section 13(6) is mandatory or not came up for consideration before this court in the case of Ghulam Muhammad Khan Lunkhor v. Safdar Ali."
15. ' Then the judgment proceeds and the following passage from the judgment in Ghulam Muhammad Khan Lundkhor has been quoted and I would respectfully reproduce it here as well:- "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 co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the persons 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 (vide Maxwell, page 285, 11th Edition).
16. ' After this quotation from the Lundkhor's case the judgment proceeds further and it is held:- "Apply this principle in the present case the only interpretation that can be given to the provisions of subsection (6) of section 13 of the Ordinance is that its words are mandatory and the Court has no further discretion left in the matter, for the tenant cannot be entitled to more than what the meaning of the words clearly import."
17. ' It is not necessary to burden this judgment with the views taken by the single Benches of the High Court in various matters. But two more cases decided by the Supreme Court must be mentioned, they are 1979 SCMR 496 and 1981 SCMR 538.
18. ' In the first case the point urged before the Supreme Court was that the tenant had adjusted the amount of rent and thus nothing remained due from him and as such there was no default.
19. Rejecting this plea the Court held:- "4. It was conceded by the learned counsel that his client had not complied with the order of the learned Rent Controller and had not deposited the rent as directed, but his argument was, that as his client had in his written statement taken up the plea of adjustment of certain amount spent by him and as even otherwise according to him, no rent was due on his part, therefore in this state of affairs, the order directing the deposit of rent without first sorting out whether any rent was actually due from him after accounting for the claimed adjustments, was not justified. The contention has no merit. The order directing deposit of rent in its very nature under statute aforesaid was based on a tentative view of the case and its obedience could not be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount avail - able for adjustment to the tenant should be given because adoption of that course will tantamount to start a regular trial of the case which is not within the scope of subsection (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fide or correctness of the various defence plea of the tenant or to further proceed with their trial and adjudication."
20. ' Two other cases deserve special mention and they are 1973 SCMR 112 and 1975 SCMR 261. In 1973 SCMR 112 Sajjad Ahmad Jan, J., dealing with the default of a tenant for failure to comply the order passed under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 condoned the delay. But if the case is closely examined it would be apparent that it was not a case of default on the part of the tenant but a faithful compliance of the order as conveyed to him by his counsel. The mistake was found to be attributable to the counsel who had unfortunately not grasped the import of the order passed and it would have caused a miscarriage of justice if the tenant was visited with a penalty on account of error committed by his counsel. Following observations were made which would show how the case was approached: "We have heard the learned counsel for the parties at a consider able length, and we have formed the view that this is not a case of wilful default on the part of the appellant in depositing the rent for the month of May, 1966, within time, as directed by the learned Rent Controller. It is correct that the learned counsel for the appellant (Mr. Muhammad Yousuf) had interpreted the order of the learned Rent Controller in his own light, and advised the appellant to deposit the entire rent including that for May 1966, before the 15th of July, 1966. The appellant acted on the advice given to him by the learned counsel and he could not be penalized merely because the counsel's advise 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 construc tion of the order of the learned Rent Controller, and there was thus no case of wilful default on his part."
21. ' With these observations the tenant was exonerated and the order of ejectment against the tenant was set aside. Another case reported in 1975 SC M A 261 was also a case in which the confusion had arisen on account of bona fide mistake on the part of the counsel. The late Waheeduddin Ahmed, J, dealing with this explanation by the tenant disposed of the case exonerating the tenant with the following obser vations : - "The respondent resisted this application. His explanation was that his counsel Mr. A.M. Nazami interpreted the order of the learned Rent Controller that the rent due up to 15th January, 1968, which would also include the rent for the month of December, 1967 was to be deposited in four equal monthly instalments and after working out the amount directed the respondent to deposit Rs. 185 only towards the first instalment before the 15th January, 1968. He submitted that the respondent relying on the advice of his counsel deposited the amount of Rs.
185. It was later on discovered that his counsel, by mistake, had written the figure of Rs.185 instead of Rs.190. The respondent immediately covered the short payment while depositing the 2nd instalment. The Rent Controller did not accept the explanation and struck off the defence of the respondent under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. An appeal was filed against this order which was dismissed. The matter was then taken in 2nd Appeal No. 968 of 1968 in the High Court of Sind and Baluchistan, Karachi, and a learned Single Judge of the said High Court by judgment dated the 15th January 1974 accepted the appeal and condoned the delay in not depositing the entire rent as directed by the Rent Controller. The petitioner seeks permission to file an appeal against the said order.
22. ' Mr. M.G. Dastgir, learned counsel for the petitioner, has contended that it was a case of wilful default and the High Court should not have condoned the delay. He further contended that the case of the petitioner was distinguishable from the case decided by, the Supreme Court in Hashim Khan v. Ghulam Nabi. We have gone through the order of the learned Single Judge and are satisfied that he applied correct principles in this case. 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. The petition is dismissed."
23. ' To the same effect are the observations made in 1983 CLC 1053 and 1983 CLC 3230. The learned counsel for the appellant has however been able to find a case reported in 1983 CLC 1956 reported as Akhtar Hussain Jafferi v. Imtiaz Hussain decided by Z.C. Valiani, J. This case has peculiar features of its own. In this case the due date fell on 14th October, 1974 but the deposit was made on the 15th October, 1974. The explanation for delay was that the tenant became "sick and developed high fever consequently he was unable to go to the Court of the learned Rent Controller and deposit the said rent on the 14th October, 1974." A medical certificate in support of the illness of the tenant was produced and it was further contended "that there was no adult male member with him in his house, who could have deposited the rent of the premises on 14th October, 1974, when he was confined to bed with high fever."
24. ' The learned Judge held that it would he very unconscionable to treat this delay as deliberate default on the part of the tenant specially when no attempt was made by the applicant/landlord to cross-examine the tenant on the affidavit filed by the tenant explaining the reason for default by one day. The other contention of the landlord/applicant was that the tenant could deposit the rents between 1st October and 14th October to escape the consequences of the default. This was also rejected by the learned Judge as presumptions. In the special circum stances of this case the explanation offered by the tenant was accepted and the delay condoned. This case decided by the learned Single Judge and in the special circumstances of that case relief granted to the tenant deserves all respect but in view of the weight of opinion of the Supreme Court this case cannot be an authority for condoning the ) delay in the present case although the period of default is not more than two days and the circumstances are also more or less the same.
25. ' In view of the above discussion I have no choice but to dismiss this appeal. The parties to bear their own costs. The appellant is allowed four months time to vacate and hand over the vacant possession of the premises to the respondents subject to his regular payment of the monthly rents as determined by the learned Rent Controller. Failure to pay rents would result in forfeiture of this grace period and would result in immediate ejectment of the appellant. .
26. M.B.A. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.