' The defence of the appellant/tenant has been struck off and his ejectment ordered by the impugned order, dated 22-4-1985 of the Rent Controller., Karachi. Being aggrieved, the appellant has filed this appeal. I have heard Mr. Abul Khair, learned counsel for the appellant and Mr. Amir Malik, learned counsel for the respondent.
2. The ground, on which defence has been strifek off, is that the rent for September, 1984 which was required to be 'deposited by -= 10-10-1984 according to the rent order passed by the Rent Controller, was deposited on 15-10-1984. The area, in which the appellant/tenant resides, is Liaquatabad, and it is an admitted position that the area was under curfew from 8-10-1984. In the impugned order the timings, during which from 8-10-1984 till 15-10-1984, curfew had been relaxed are given and the said timings of relaxation in curfew are as follows:- "On 8-10-1984--From 7-00 a.m.To 9-00 a.m. On 9-10-1984--From 7-00 a.m. To 9-00 a.m. And from 4-00 p.m.To 5-30 p.m. On 10-10-1984--From 7-00 a.m.To 10-00 a.m. And from 4-00 p.m.To 5-00 p.m. On 11-10-1984--From 7-00 a.m.To 10-00 a.m. And from 4-00 p.m.To 5-30 p.m. On 13-10-1984-- From 6-00 a.m.To 10-00 a.m. And from 1-00 p.m.To 5-30 p.m. On 14-10-1984--From 7-00 a.m.To 5- 30 p.m. On 15-10-1984--From 6-00 a.m.To 10-00 p.m."
' The reasoning of the Rent Controller for passing his order striking off the defence of the appellant is that during the hours when the curfew was relaxed, the appellant could have gone to the District Court and deposited the rent. In this case, after rent for September, 1984, had been deposited on 15-10-1984, the appellant gave an application to the Rent Controller bringing to his notice that he had deposited the rent for September, 1984 late on account of the fact that he was living in an area, which was under curfew and seeking condonation. When this application came to the knowledge of the respondent, he filed an application under section 16 (2) of the Sind Rented Premises Ordinance, 1979, for striking off defence of the appellant and as observed earlier, by order, dated 22-4-1985 defence of the appellant had been struck off.
' It was contended by Mr. Abul Khali', learned counsel for the appellant, that non-deposit of rent for September, 1984, by the appellant was on account of unavoidable causes and as such his defence could not have been struck off. He cited the following authorities in support of the present appeal:-
(i) Sliah Jehan v. Mst. Mukti PLD 1963 Kar. 777: ' In this judgment of a Division Bench reference was made to the definition of the word "default" as given in Stroud's Judicial Dictionary, which is as follows:- "Default would seem to embrace every failure by the defendant to perform his contract unless prevented by superior force, over which he had no control, such as stress of weather."
' This meaning of the word "default" was accepted and then it was observed that mere non- compliance of the order under section 13 (6) of the 1959 Rent Ordinance, would not in every case amount to default and it would depend upon circumstances of each case, where the payment has not been made because of some superior force over which the tenant had no control.
(ii) Visumal Chatumal Khiluani v. Ali Bakhsh PLD 1968 Kar.
521.
' In this judgment of a learned Single Judge, it was observed that default imports element of negligence or fault and means something more than mere non-compliance, and failure in deposit of rent due to impression that no deposit would be accepted during summer vacation, was not a case of wilful default as the tenant was justified in presuming that deposit of rent would not be accepted during vacations. It was further observed in this judgment that the question whether the default was negligent or otherwise is a question of fact.
(iii) Muhammad Yamin v. State Life Insurance Corporation 1982 SCM R 546: ' In this case there was a delay in deposit of the rent by one day and the reason given by the tenant for delay was incessant rains disrupting ordinary human means dealings. The Rent Controller did not accept the plea of the tenant and ordered his ejectment. High Court allowed the appeal reversing the order of the Rent Controller. A petition was filed before the Supreme Court but the same was dismissed. The reasoning of the Supreme Court dismissing the petition for leave to appeal was given in the final paragraph of the report and the same is reproduced herein below:- "The learned counsel tried to criticise the reasoning of the learned Judge in the High Court as without appreciating the evidence/ material before the learned Rent Controller. He has also raised other questions relatable to factual controversy. He has, however, failed to satisfy us that the finding of fact reached by the High Court with reference to the circumstances beyond the respondents' control due to which the relevant deposit could not be made, suffers from any infirmity. His contention that newspaper report relied upon from the respondents' side before the Rent Controller could not be accepted as substantive evidence is also without any force; firstly, the provisions of the Evidence Act relied upon by the learned counsel in this behalf, do not apply to the Rent Controller's forum, and secondly, it is not correct that the newspaper report itself was accepted as substantive evidence. It was found as having been corroborated by the deposition made from the respondent's side. On this account also no justification has been made out, for interference. This petition has been made out for interference. This petition has no force and is accordingly dismissed."
' On the other hand, Mr. Amir Malik, learned counsel for the respondent, argued that no case has been made out for interference. According to him, rent could have been deposited, there is an admitted default and as such no case has been made out for interference in the first rent appeal.
Learned counsel for the respondent relied upon the following reported judgments:-
(iv) Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700: ' The Supreme Court, in this judgment after referring to section 13(6) of the 1959 Rent Ordinance, observed that this provision was mandatory and in the case of a default on the part of the tenant, the defence of the tenant is to be struck off.
(v) Nazir v. Shaukat Ali 1982 SCMR 985: ' In this judgment, it was observed, after referring to PLD 1971 SC 700, that the Rent Controller has no power to condone the delay under section 13(6) of the West Pakistan Rent Restrictions Ordinance, 1959.
3. In my view, it is not an absolute rule that in case the rent is not deposited within the time required by. The rent order passed under section 16 (1) of the 1979 Sind Rented Premises Ordinance, the defenc of the tenant must be struck off. The question depends upon whether the delay in the deposit of rent by the tenant was on account o avoidable cause of unavoidable cause and this depends on the facts and circumstances of each case. The burden is heavy on the tenan and unless this burden is discharged defence has to be struck off and ejectment ordered.
4. It is an admitted position that the appellant resides in the are which was under curfew from 8-10- 1984 onwards till he deposited th rent on 15-10-1984. No doubt there were relaxations in curfew hours initially shorter periods and these periods were extended gradually yet the fact remains that in the area, in, which the appellant/tenant resided and the premises, which are subject-matter of dispute, are located I Liaquatabad, in which area curfew had been imposed. The curfew is imposed when the situation in the area, in which curfew is imposed, I abnormal in so far as the law and order situation is concerned, that is, there is great threat to life of the residents and property located in the area. Adverse law and order situations do develop from time to time and in almost all cases these are controlled by normal method employed by the law-enforcing agencies of the State.
However, I extremely grave situations where peaceful conditions cannot be resorted, it may become necessary to resort to imposition of curfew but these situations are very rare and the executive authorities of the Stet resort to such imposition where no other remedy is available, as imposition of curfew disputes all economic and social dealings. Just because curfew has been relaxed for some periods, does not indicate that situations have become normal and till curfew is entirely lifted, it can be presumed that abnormal conditions prevail in the areas subject to curfew.
5. It is in this background that the conduct of the appellant should have been judged. He has given an explanation for non-deposit of rent till 15-10-1984 and in view of the fact that curfew had not yet bee lifted from Liaquatabad, where the appellant resided and where th premises in dispute are located, it can be said that the non-deposit o rent till 15-10-1984 was on account of unavoidable causes. This is despite the fact that there had been relaxations in the hours of curfew. In my view, therefore, the defence, of the appellant could not hay been struck off on account of deposit of rent for September, 1984, on 15-10-1984.
6. As a result, F.R.A. No.402/85 is allowed and the impugned order, dated 22-4-1985 of the Rent Controller is set aside and the case is remanded to the Rent Controller for disposal in accordance with law. It is submitted by Mr. Amir Malik, learned counsel for the respondent that he had not led his full evidence on account of the fact that appellant had not deposited the rent for September, 1984, in time and the defence of the appellant was expected to be struck off. Now that the order striking off the defence of the appellant has been set aside, it is prayed by the learned counsel for the respondent that the respondent may be allowed to lead additional evidence. By consent,, it is ordered that the parties can lead additional evidence, if they so desire.