Both these appeals under the West Pakistan Urban Rent Restriction Ordinance (hereafter called the said Ordinance) turn on identical questions of fact and law, and I will therefore dispose of the applications filed in them by this order. The dispute in these appeals relates to two shops in Ubauro. One of these shops in occupied by the respondents in Second Appeal No. 412 of 1970, whilst the other shop is occupied by the respondents in the other appeal. The contention of the appellant in both these appeals is that he had acquired both these shops by transfer from the Settlement Department under P. T. Ds. Dated 12-10-1968. Thereafter he had sent the usual statutory notice to the respondents in the two appeals calling upon them to pay rent, but as they did not, he filed separate eviction applications against them for their eviction under section 13 of the said Ordinance in the Court of the Rent Controller and civil Judge, Mirpur Mathelo. The respondents in these appeals contested their eviction and raised identical pleas in their written statements. For the purpose of this order, it is sufficient to state that their common contention was that the shops occupied by them did not belong to the appellant but to the local Masjid to which they had been paying rent, and in this connection they also relied on the fact that proceedings about the status of the property were pending in the Custodian Department. On the basis of the P. T. Ds issued in favour of the appellant, the Rent Controller rejected the respondents' conten--tions and ordered their eviction. Accordingly, the respondents filed appeals against their eviction in the District Court, Sukkur, and both these appeals were allowed by the learned District Judge on the ground that the title of the appellant was not clear. As the eviction cases filed by the appellant were thus dismissed he filed appeals in this Court against the said orders of the learned District Judge. These appeals were admitted, and being connected with each they have always come up for hearing together. I may further point out here that in both the appeals the appellant had filed identical applications for a direction from the Court to direct the respondents in the appeals to deposit the arrears of rent claimed by him and to continue to deposit the monthly rent. The respondents in these appeals opposed these applications on the same ground, namely, that the appellant had not proved his title to the shops for which he was claiming rent. Then, apparently because the respondents in both the appeal had deposited some rent, their submission was that the appellant should not be allowed to draw out the amounts thus deposited without furnishing security. These applications came up for hearing before a learned Single Judge of this Court on 3-6-1971 and they were disposed of by consent orders on that day. In both the appeals the respondents undertook to deposit the arrears of rent within one month and also undertook to continue to deposit the current rent. However, as they did not comply with this order for more than two months, after the reopening of the Court in August 1971, the appellant filed applications in both the appeals and his prayer in these applica--tions was that the defences of the respondents should be struck off under section 13(6) of the said Ordinance. The respondents opposed these application on identical grounds and nearly six months later, in February 1972, they filed applications praying for time to deposit rent in accordance with their undertaking to the Court on 3-6-1971. The appellant opposed these applications and all these applications have now come up for hearing before me.
2. It is not disputed before me that the respondents have not carried out the orders passed by the Court in the appeals against them, despite their own undertaking. In these circumstances, the burden was on them to show that they did not commit default within the meaning of section 13(6), and in order to discharge this burden, Mr. Lakhan, their learned counsel, made a two-fold submission. This was that the respondents had sufficient cause for not complying with the Court's orders of 3-6-1971, and that, in any event, the p.-nal provisions of section 13(6) of the said Ordinance were not applicable to second appeals in the High Court. I will now consider these sub-- missions, and I will first consider whether the respondents have made out sufficient cause for not complying with the orders of the Court for deposit of rent.
3. As I have observed, the explanation of the respondents in both the appeals for not depositing the rent in accordance with the Court's orders and their own undertaking is the same, and it is contained in affidavits filed on 28-10-1971 by the respondents and by one Mr. Abdul Karim. In these affidavits the respondents have referred to the litigation pending before the Custodian and stated that they had been paying rent to the Mutawalli of the Masjid and that the said Mutawalli had a son by the name of Abdul Karim, who was an Advocate. They have further stated : "Hence all the matters pertaining to the shop are always pursued by him. That in the same way Mr. Abdul Karim, Advocate engaged counsel for me at Karachi, as I have already paid rent to the Masjid. "Finally, they have stated that as Mr. Abdul Karim had not informed them of this Court's orders of 3-6-1971, their non-compliance of these orders was unintentional and beyond their control. These affidavits are supported by the affidavits of the said Mr. Abdul Karim, but I may point out here that Mr. Abdul Karim's affidavit is filed only in Second Appeal No. 412 of 1971. Mr. Abdul Karim's contention in this affidavit is that he had engaged Mr. Lakhan on behalf of the respondents in the appeals against them in this Court, that he had thereafter fallen ill in June 1971, and had to be "cut of his headquarters for about three months. As such I was not getting my post regularly and many letters were misplaced." He has then stated that Mr. Lakhan's letter to him informing him of this Court's orders dated 3.6-1971 must have been misplaced. Mr. Abdul Karim's claim to have been ill at the relevant time was not supported by any independent evidence whatsoever, nor had he even mentioned in his affidavit what his illness was. Mr. Khalilur Rehman therefore challenged the correctness of this allegation, and Mr. Lakhan took adjournments is order to produce evidence in support of this plea. He thereafter filed a medical certificate in Second Appeal No. 412 of 1971, and Mr. Khalilur Rehman agreed that Mr. Karim's affidavit and the medical certificate filed in this appeal would be sufficient for both the appeals. Thus the real question for consideration in both these appeals is whether the explanation submitted by the respondents can save them from the penal consequences of section 13(6).
4. Even if I assume for the sake of argument that the respondents can disclaim responsibility for their failure to comply with the Court's orders merely by alleging that they were relying on Mr. Abdul Karim, was Mr. Abdul Karim's illness sufficient justification of his failure to inform the respondents of the Court's orders for deposit of rent. The burden of this plea was heavily on the respondents, yet despite the opportunities given by me, they did not dare to produce Mr. Abdul Karim for examination in this Court. Instead, Mr. Lakhan only relied on the medical certificate filed in Second Appeal No. 412 of 1970. According to this certificate Mr. Abdul Karim had suffered from acute Infective Hapatitis and had been advised "complete bed rest for six weeks" from 5-6-1971. Mr. Khalilur Rehman challenged the correctness of this certificate and also submitted that Hepatitis could not have prevented Mr. Abdul Karim from reading letters. As Mr. Lakhan did not know what Hapatitis was, I have to observe here that it is a liver infection which requires dieting for a long period and rest for some time only. However, even if I assume for the sake of argument that this medical certificate is correct, it has prescribed rest only for six weeks from 5-6-1971. This period ended on 17th July 1971, and after this date Mr. Abdul Karim had absolutely no justification for not attending to his professional obligations. Accordingly, after 17th July he could and should have made enquiries from Mr. Lakaan about the fate of the appeals against the respondents and informed them immediately of the Court's orders. As he did not take any steps whatsoever to make enquiries from Mr. Lakhan, I have to state with great regret that his conduct amounted to gross negligence and the respondents cannot escape liability for the consequences of their agent's negligence. I may also observe here that Mr. Lakhan had received notice of the appellant's applications for striking off the respondents' defences in the two appeals on 16-8-1971, yet they filed applications to condone their delay in the deposit of rent in February 1972. There is no explanation of this long delay and the only conclusion I can draw is that both the respondents and Mr. Abdul Karim were grossly negligent.
5. Mr. Khalilur Rehman also drew my attention to the fact that the respondents had stated it their affidavits that they had been paying rent to the Masjid, which means to the father of Mr. Abdul Karim, Advocate, therefore Mr. Khalilur Rehman's submission was that this plea was inconsistent with the alternative plea that the respondents' violation of the Court's orders was inadvertent and due to the illness of Mr. Abdul Karim. There is some force is this argument, but In any case I am not Satisfied with the plea that the respondents had been prevented from complying with the Court's order on account of Mr. Abdul Karim's illness. Mr. Lakhan then said that the respondents should not be allowed to suffer on account of the negligence of their Advocate and that as Mr. Abdul Karim, Advocate was responsible for the respondents' failure to deposit rent, the respondents could not be said to have committed default within the meaning of subsection (6) of section 13 of the said Ordinance.
I am not able to accept this argument. In the first place, I have not been referred to any evidence to show that Mr. Abdul Karim had been engaged professionally. Secondly, even if 6e was so engaged.
Mr. Lakhan has not been able to show how a litigant can escape the consequences of the gross negligence of his Advocate. If a tenant can escape the consequences of violating his obligations under section 13(6) by passing the blame on to his agent, whoever he be, it would put a premium on negligence and perhaps even fraud, and as I can see nothing in the language of subsection (6) of section 13 to support this view, I am not able to accept Mr. Lakhan's submission.
6. I am aware of the possibility that in the proceedings which are now pending before the Additional Custodian, the appellant may be divested of his title. If this happens, presumably it would be on the finding that the shops in dispute are not evacuee. Is the Jurisdiction of this Court therefore ousted under section 41 of the Administration of Evacuee Property Act 1957 ? That section would be attracted if I had to adjudicate upon the question whether the shops in dispute were non-evacuee or evacuee. But I do not think I am required to determine this question for the purpose of deciding the c appellant's applications for striking off the respondents' defences. I am aware that a decision on this question might have been necessary if the respondents had pressed It as a bar to their liability under subsection (6) of section 13, but as they had undertaken to deposit rent I do not see how they can now be permitted to raise the bar of section 41. When I observed that these applications had to be decided solely on the basis of the respondents' own undertakings, Mr. Lakhan could only plead the hardship of the case. But hard cases make bad law and further the laws delays, which are increasing beyond measure, should not be encouraged. As the appellant had obtained a P. T. D. Long ago, I do not see why the respondents should be allowed to escape the obligations accepted by them on 3-6-1971, and in this view of the matter the only question is whether they have wilfully violated those orders. As I have held that their explanation for not depositing rent is extremely unsatisfactory it fellows that the appellants' applications for striking off their defence should be allowed unless the High Court in a second appeal is precluded from exercising this power. Mr. Lakhan's submission therefore was that the power conferred under sub-- section (6) of section 13 to strike off a tenant's defence was available only to the Rent Controller and not to the Appellate Courts, and I will now consider this question.
7. This very question was considered by a Full Bench of the West Pakistan High Court in Muhammad Hussain and others v. Mehrajuddin and another (PLD 1965 Lah. 179) and the view taken by the Full Bench was that an Appellate Court has power to strike off a tenants' defence under section 13(6) of the said Ordinance, and as pointed out by Mr. K6ablur Rehman this view was again affirmed in Roshandin v. Badruddin (PLD 1969 Kar. 546). However, according to Mr. Lakhan, this view was inconsistent with the judgment of the Supreme Court in Abdul Ghafoor v. Ahmad Kunhi (PLD 1969 SC 424) and must therefore be deemed to have been overruled. In support of his argument, learned counsel referred me to the observations of Sattar, J. At pages 428 and 429 of the report. Sattar, J.
Has observed at page 429 : "The order contemplated by the first part of section 13(6) is of an interim or interlocutary nature and cannot be said to remain effective after the final determination of the proceedings in which it is made---------." Mr. Lakhan thought these and other observations supported his argument. But the facts in the case cited were that a landlord's eviction application had been dismissed, therefore he had filed an appeal in the District Court. During the pendency of his appeal, as the tenant had committed default in the deposit of monthly rent, the landlord had filed an application under section 13(6) for striking off the tenant's defence in the Appellate Court.
The application was pressed on the basis of the order for deposit passed under section 13(6) by the Rent Controller, not by the Appellate Court, therefore Mr. Khalilur Rehman submitted that the judgment was distinguishable on the facts, and he further referred me to the following passage in the judgment at page 430; "Some arguments were advanced by the learned counsel for the respondent as to whether the Appellate Authority can pass a fresh order under section 1316) of the Ordinance in an appeal. As no such order was passed in the present case and the direction for ejectment was not given for non- compliance with such an order it is not necessary for me to go into this question in this case."