ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted to examine the question whether the appellant had committed default in the payment of rent so as to attract the penalty provided in section 13(6) of the Urban Rent Restriction Ordinance.
2. The facts, in brief, are that the respondents brought an application for the eviction of the appellant from the shop in question on the ground of personal requirement. The application was contested by the appellant. On 22-3-1987, a direction was made by the Rent Controller under section 13(6) of the Urban Rent Restriction Ordinance (hereinafter referred to as the Ordinance) to deposit the further monthly rent before the fifteenth day of every succeeding month. The order reads as hereunder:- {{URDU TEXT}}
3. On 28-4-1987, the appellant submitted an application to the Controller that the order dated 22- 3-1987 was passed in the absence of the appellant and his counsel. On the next day, an inquiry was made from the Reader of the Court who informed the appellant and his counsel that the case had been adjourned to 26-4-1987. On 28-4-1987, the appellant's counsel came to know that an order under section 13(6) of the Ordinance had been passed in the absence of the appellant and his counsel. The appellant as usual remitted a sum of Rs,350 as rent for the month of March to the respondent No,1 on 11-3-1987 which he refused to accept. Again, the appellant remitted Rs,700 as rent for the months of March and April 1987 on 2-4-1987. The appellant did not know as to whether the respondents had accepted the said rent or not. It was, therefore, prayed that `the delay in depositing the rent for the month of March may be condoned and the appellant be allowed to deposit the rent for the month of March 1987'. This application was contested by the respondent landlord. On facts, it was stated that the order was passed in the presence of the parties. The Rent Controller declined to condone the delay and stated that this was gross negligence on the part of the appellant. The defence of the appellant was struck off. The appellant challenged this order in appeal before the District Judge who rejected the appeal. The appellant then unsuccessfully challenged this order before the High Court in Constitution petition.
4. We have heard the learned counsel for the parties. It has been contended by the learned counsel for the appellant that the appellant was directed to deposit the monthly rent for the month of March before the 15th of April but as practice, he sent the money order to the landlord on 11-3- 1987 but the landlord refused to accept the rent. Again, rent for the months of March and April was sent through money order on 2-4-1987. There was no element of negligence on the part of the appellant. The learned counsel has referred to Pakistan Burmah Shell v. Abdur Rehman, Additional District Judge PLD 1983 Lah. 567; Sh. Maqbool Ahmad v. Muhammad Akbar Ali PLD 1978 Lah. 258; Muhammad Abdullah v. Nawab Din 1971 SCM R 336 and Zarina Khawaja v. Mahboob Shah PLD 1988 SC 190.
5. In the present case, the facts of the case have to be examined before determining the question of default. The admitted position is that the eviction was not sought on the ground of default. The Rent Controller passed the order under ' section 13(6) of the Ordinance with regard to monthly rent as nothing was in arrear against the appellant. At that time the rent for the month of March had not fallen due. The respondent No,1 has not denied the assertion of the appellant made in his application that the rent was sent to the respondent through money orders. The point for consideration is whether in the circumstances of the case the payment of rent sent by the appellant through money order is a proper compliance of the order made under section 13(6) of the Ordinance. Undoubtedly, the appellant had parted with the amount before the specified date. He had sent the rent through money orders on 11-3-1987 and 2-4-1987. The appellant had to deposit the rent for the month of March before 15th of April. He had sent the rent before expiry of the specified date for deposit of the rent. This fact would show his intention to make the deposit in time. Such tender, in the circumstances, amount to deposit in the performance of his obligation under section 13(6) of the Ordinance. In the case of Burmah Shell, it was observed that the landlady had accepted the payment made through cheques without any objection, therefore, it could be considered a valid and legal tender.
' In the case of Maqbool Ahmad, it was held that tender of the due amount of rent before the specified date to the landlord instead of depositing it with Controller is not a default. Whether it amounts to compliance with an order under section 13(6) depends upon circumstances of each case. In para. 11 of the judgment, it has been observed as follows:-- "It is important to note that the failure in this case is not with regard to the essential conditions specified in the provision of section 13(6), namely, (i) parting with the money for the benefit of the landlord; and (ii) before the specified date. This case would be distinguishable from all those cases where either of the two essential requirements are contravened by the tenant without any cause beyond his control and or an unavoidable circumstance. The failure qua the unessential conditions, namely, deposit with the Controller as distinguished from payment/tender to the landlord is not such which on general principles should be treated as a default as envisaged by law."
' In the case of Muhammad Abdullah, it has been held that 'it is highly unreasonable to argue that tenant is shut out from proving on evidence on record that he is not a defaulter'. Payment by 'cheque' in this case was adjusted as if it was a 'deposit'.
' In the case of Zarina Khawaja, it has been held that:-- "The use in subsection (2) of section 16, Sindh Rented Premises Ordinance, 1979 of the word 'pay' regarding monthly rent and 'deposit' regarding arrears thereof, is also without significance. The deposit is also a payment. Moreover, the payment has to be under subsection (1) wherein the word 'deposit' has been used for both the payments. And subsection (3) also repeats the word 'deposit'.
Hence nothing would turn on the use of the words like 'pay' and 'payment' in this context. Therefore, whether it is the monthly rent or the arrears, the payment has to be made through a 'deposit' under subsection (1). The disbursal to the landlord is possible only under subsection (3) at a later stage, after the deposit has already been made under subsection (1). No payment or adjustment in any other form directly to the landlord has been made possible by section 16."
6. The learned counsel for the respondents has referred to Islam Riffat Siddiqui v. Mahmood Abid Rizvi 1985 SCMR 170 but this authority is inapt as the Court took into consideration that the Controller had taken due notice of two bank drafts which had been produced before him by the landlord.
7. The facts and circumstances narrated above would prove that the appellant could not be adjudged as defaulter and penalised for non-compliance of the order under section 13(6) of the Ordinance. The appeal is allowed. The judgments of the Courts below are set aside and the case is remanded to the Rent Controller for decision on merits. There will be no order as to costs.