' This appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, has given rise to an interesting argument, but when the statutory provisions with which it is concerned are examined the decision does not present great difficulty.
2. The facts are simple and may be briefly summed up. Appellant Mst. Nasira Sultana is the owner landlady of premises bearing No,F-71, Bolck" B", North Nazimabad, Karachi. It is a double storeyed building and was rented out to respondent No,1 for the purpose of running a school alongwith fixtures and fittings under two agreements dated 22-24984 and 26-2-1984 for a period of five years commencing from 28-2-1984 at Rs,1,5000 P.M. (Rs, 7,500/for premises and Rs,7,500 for fittings and fixtures), with the following important terms and conditions among others:-
(i) That the respondent No,1 shall pay all the bills for electricity, water, gas, telephone and conservancy taxes, charges and shall deliver the paid bills to the appellant within 15 days of payment,
(ii) That the respondent No,1 having occupied himself the premises can put the same for educational, commercial and residential purposes of his own,
(iii) That during the period of tenancy the respondent No,1 shall carry out all usual maintenance and shall keep the premises, fittings and fixtures in good condition.
(iv) That all major structural changes and repairs will be carried out by the appellant.
(v) That the respondent No,1 shall maintain the gardens forming part of the premises at his own costs.
(vi) That the rent of the premises shall be increased by 10% after every three years.
(vii) That the respondent. No,1 shall pay half of the property tax on the premises as assessed by the concerned authorities.
(viii)That in case the premises is vacated by respondent No,1 during continuance of tenancy agreement monthly payment already received by the appellant shall not be refunded.
3. During the subsistence of tenancy agreements, the respondent Not requested the appellant to issue rent receipts in the name of respondent No,2 for getting certain reliefs in tax and consequently the appellant started issuing receipts in the name of respondent No,2 and in this way both the respondents have become tenants of the appellant.
4. The dispute arose between the parties over the increase of rent by 10% as mutually agreed and over the payment of 1/2 of the property tax. It is the case of the appellant that the respondents were liable to pay rent at the rate of Rs,16,500 per month from the month of March, 1987, which they failed to pay in spite of repeated demands made therefor, and continued to pay Rs,15,000 per month. The respondents were, therefore, in arrears for 14 months at Rs,1500 per month amounting to Rs,21,000 at the time when application under section 15 of the Sindh Rented Premises Ordinance, 1979, was filed. The appellant sought the ejectment of respondents on the grounds of default, raising illegal construction without permission and personal requirement.
5. The respondents resisted their eviction by controverting the allegations based on facts. Their defence in main is that after the change of tenancy, the respondent No,2, being independent entity and distinct from respondent No,1 was not bound by the unlawful and unacceptable terms of tenancy, which were entered into with respondent No,1 in his personal capacity. The jurisdiction of the Rent Controller to enforce the agreement for hire-charges was also challenged.
6. On 18-4-1988 the appellant made an application under section 16 (1) of the Sindh Rented Premises Ordinance, 1979, for a direction to respondents for the deposit of difference of rent and future rent. This application was also contested by the respondents who filed their objections on 30-5-1988. The application was disposed of by learned Rent Controller vide order dated 25-2-1989, who directed the respondents to deposit arrears of rent and monthly rent due for the following reasons:- "I have anxiously considered the arguments of the learned counsel for the parties. It is an admitted fact that the tenement in question was let out to the opponent by two separate agreements, the agreement dated 22nd Feb.,1984 was executed in respect of the tenement in question whereby the tenement in question was let out at rate of Rs,7,500 per month and fitting and fixture were let out by agreement dated 26-2-1984 at Rs,7,500 only. As per clause 4 of the agreement for hire-charges both the agreements were made integral part of each other. It would advantageous to reproduce the clause 4 of the agreement which reads as under:-- "This agreement of hire-charges shall form an integral part of the Lease Agreement and shall automatically cease to exist on the expiration (unless renewed) or earlier termination of the Lease Agreement whose terms and conditions will equally apply this agreement unless otherwise expressly stated."
' Thus agreement of hire charges shall form an integral part of the lease agreement and shall automatically cease to exist on the expiration (unless renewed) or earlier termination of the lease agreement whose terms and conditions will equally applly to this agreement unless otherwise expressly stated.
' It is crystal clear that agreement of hire-charges is the part and parcel of the tenancy agreement, therefore, the rent of the tenament in question shall be at rate of Rs,1,5000 per month i,e. 7500 for the premises and Rs,7,500 as hire charges of the fitting and fixture. Under section 2/(1) of Sindh Rented Premises Ordinance, 1979, the rent has been defined as under:-- "The rent includes water charges, electricity charges and such other charges which are payable by the tenant but are unpaid."
' Thus the other charges i,e. The hire charges formed the part of the rent.
' So far the increase of rent at 10% after every 3 years is concerned it has been stipulated under clause (x) of the tenancy agreement dated 22-2-1984 as under: "That monthly rent shall be increased by 10% after every 3 years."
' The learned counsel for the applicant has shown the original tenancy agreement wherein this clause has not been struck out as alleged by the learned counsel for the opponent. However the increase of rent on hire charges is disputed and requests for the same. The payment of half property tax has not been disputed by the opponent but according to him since the applicant has not paid his share, therefore, he too has not paid the same. ' Thus opponent has admitted his liability for the payment of half property tax as claimed by the applicant.
' I, therefore, under the circumstances hereby direct the opponent to deposit the deficit rent at rate of Rs,1,500 per month from March 1987 till 31-1-1989 amounting to Rs,34,500 within 60 days from this order alongwith Rs,3,250 as taxes. This will not be withdrawn by the applicant till disposal. They are further directed to deposit the future rent at rate of Rs,16,500 per month till the disposal of this case.
The rent for the month of February, 1989 shall be deposited in this Court at rate Rs,16,500 on or before 10th of March 1989 and shall continue to deposit so on till disposal of this case. However the applicant shall withdraw the increased rent at 50% i,e. Only on rent for premises till the disposal of this case."
7. The respondents committed default in respect of arrears of rent which were deposited after 25 days of the date of expiry and that too after an application for striking off their defence was made on behalf of appellant. The respondents filed objection against this application made under section 16 (2) of the Sindh Rented Premises Ordinance, 1979, also. The default was admitted, but it was pleaded that it occurred due to financial stringency of the institution, death of mother of respondent No,1 and marriage of sister of respondent No,1. The pendency of a review application was also made a ground for the condonation of this delay. This application was heard by learned Rent Controller (Central) Karachi, who was of the view that the default not being wilful or deliberate was condonable. He, therefore, dismissed the application made under section 16 (2) of the Sindh Rented Premises Ordinance, 1979, on behalf of appellant for striking off the defence of respondents vide order dated 5-9-1989. This order is the subject-matter of the present appeal.
8. I have heard Mr. Yousuf Hussain, learned counsel for the appellant and Mr. Afzal Nabi Qureshi, learned counsel for the respondents. I have also gone through the record of this case carefully.
9. The default in compliance with the order dated 25-2-1989 by 25 days is not in dispute. The question of default in compliance with the order of deposit was considered by the Supreme Court in the well-known case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali, reported in PLD 1967 SC 530, wherein it was observed:-- "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 person 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).
' Applying 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 meanings of the words clearly import. But this does not mean that the Court is powerless to give a correct meaning to the word "default" used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Courts have purported to do in cases of this nature is to determine the true scope and meaning of the word" default" and to see whether such default has in fact been committed.'
10. While interpreting the word" default" their Lordships of the Supreme Court further held:- "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 non-compliance 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 too the word "default" should mean an act done in breach of a duty or in disregard of an order or direction."
11. In the case of M.Nazir v. S. Shaukat Ali, reported in 1982 SCMR 985, the default in payment of rent by one day was not condoned by the Supreme Court. I cannot do better than quoting the weighty observations made in the above case in extenso:- "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 14-10-1976 he deposited it on 15-10-1976. 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. According to him there was no wilful default and it should be condoned. He relied on Abdul Majid v. Saadullah (PLD 1963 Quetta 16).
' We have full sympathy with the petitioner but the view of this Court in Ansari Bros. v. Holy Trinity Church Trust (PLD 1971 SC 700) 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. In that view of the matter, no relief can be granted to the petitioner. The petition is dismissed. We would, however, grant four months' time to the petitioner to vacate the premises, in dispute."
12. The same view was followed by the Supreme Court in the case of Muhammad Anwer through his legal representative v. Abdul Shakoor, reported in 1982 SCMR 1120, wherein it was, observed that where the default in payment of rent is admitted, the Rent Controller is left with no other option, but to strike off the defence of the appellant.
13. The question of default in compliance with the order of the Rent Controller was further examined in the case of Irshad Hussain (through his heirs) v. Abdur Rehman Kazi, reported in 1983 SCMR 471, in which the failure of tenant in depositing rent was sought to be condoned on the ground of illness, and in that context their Lordships of the Supreme Court observed as follows:- "After hearing the learned counsel at some length, we are satisfied that the disease of the petitioner was not of such incapacitating type that the failure to deposit was absolutely inevitable/unavoidable and beyond the control of the tenant, and, further that he was, in all circumstances, unable to arrange the deposit through any one else. The learned Single Judge of the High Court, while allowing the respondent's appeal, has followed the principles laid down by this Court in Ghulam Muhammad Khan Kundkhor v. Safdar Ali (PLD 1967 SC 530), which would apply to the cases of illness also. The impugned judgment thus being unexceptionable, this petition is dismissed."
14. The case of Messrs Asmat Agencies v. Messrs Shaikh Yusufally Sons Ltd., reported in 1983 CLC 2088, Rustamji Dinshaw Sachinwala v. Muhammad Ibrahim, reported in 1984 CLC 258, Islam Raffat Siddiqui v. Mahmood Abid Rizvi reported in 1984 CLC 1341, Ghulam Hussain v. Mst. Roshan Bibi, reported in 1986 SCMR 1714, Nazir Ahmad v. Holaram, reported in 1985 CLC 41 and Mst. Shah Jahan v. Muhammad Rafique, reported in 1990 CLC 2012, also support this view.
15. On a careful review of the case law on this subject, I am clearly of the view that it is almost well- settled that the Rent Controller is left with no other option but to strike off the defence of the tenant if the default in deposit of arrears of rent or monthly rent is admitted or proved and the tenant is found negligent. It may be added that the default is purely a relative term just like negligence and would embrace every failure by the defendant to perform his obligation unless prevented by superior force over which he has no control. The learned Rent Controller while condoning the delay has failed to appreciate the obvious negligence of the respondents in not ascertaining the fate of their review application (which is not maintainable in law), financial stringency of the institution of respondents, death of the mother of respondent No,1 without disclosing the date and marriage of his sister without any proof as required in law. The order is purely conjectural and is thus bad in law.
16. Mr. Afzal Nabi Qureshi, learned counsel for the respondents while supporting the impugned order, although on different grounds, has assailed the order dated 25-2-1989, passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, by which the respondents were directed to deposit arrears of rent and monthly rent due. In view of the cases of Jiando Khan v. Hakim Muhammad Ishaq, reported in PLD 1964 Kar. 61 and Gulzar Ahmad v. Mrs. Shah Noor Fazal, reported in 1983 CLC 1077, the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, directing the tenant to deposit arrears of rent and monthly rent due can be attacked for the first time in appeal filed by either side. The most important point that the learned counsel for the respondents has been able to bring out is about the change of tenancy, whereby according to him, the respondent No,2, being a distinct entity was not bound by the terms of agreements entered into between the appellant and respondent No,1. This question required a deeper appreciation of evidence and could be resolved only after the entire evidence was available on record. Before passing a tentative rent order under section 16(1) of the Sindh Rented Premises Ordinance, 1979, the Rent Controller can embark only on such inquiry which is summary in nature, although with no limitations. The learned Rent Controller in his well-considered order dated 25-2-1989 has taken care to safeguard the interest of respondents by withholding payment to the extent of 50% of the increased amount. No prejudice was caused to respondents by this order. It will not be out of place to mention here that respondent No,1 is the Proprietor/Administrator of respondent No,2 and the disputed building was hired mainly for running a school.
17. For all the above reasons the impugned order cannot be sustained and is set aside. The defence of the respondents is struck off. The result is unfortunate but the respondents should thank themselves for this order. They are, however, allowed six months time to vacate the demised premises so that an alternate arranagement for the school building is made. The appeal is allowed, but the parties are left to bear their own costs.
Defence struck off. 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.