' The question in this second appeal under section 15 of the Punjab Urban Rent Restriction Ordinance is whether the learned Rent Controller and the learned Additional District Judge, Gujranwala have rightly held that the appellant had made default in the compliance of an order under section 13(6) of that Ordinance and in directing the eviction of the appellant. This question has arisen in the following circumstances.
2. The respondent, Muhammad Raza, sought the appellant's eviction from the premises in question on the ground that he had failed to pay or tender rent at the rate of Rs,800 per month for the period from 14-12-1985 to 15-9-1986. The appellant in his written statement did not deny that he was a tenant of the respondent. He, however, pleaded that the rate of rent was Rs,200 and that, as regards the non-payment of rent, the respondent had received a sum of Rs,1,75,000 as advance rent on 14-7-1984, the agreement being that the future rent would be adjusted towards that sum.
He, therefore, denied that he was in arrears of rent or was liable to eviction on that ground.
3. The learned Rent Controller directed the appellant by his order dated 29-6-1988 to deposit the arrears of rent for the period from 14-12-1985 to 15-6-1988 and future rent before the 15th of each succeeding month at the rate of Rs,200 p.m.
4. The appellant deposited the arrears of rent well within time and had also been depositing the future rent in terms of that order. However in the challan forms, in column I, which reads "By whom tendered", he mentioned his own name and in the second column thereof which reads: "Name and designation and address of the person on whose behalf money is paid", he again wrote his own name. In column 3 of the challan form he gave the particulars of the deposit; those particulars included the rate of rent, the period of the rent, the title of the case and the order dated 29-6-1988 of the Rent Controller by which the rent had been ordered to be deposited.
5. On 15-11-1989, the respondent made an application praying that the appellant's defence should be struck off for he had not complied with the order dated 29-6-1988. The learned Rent Controller accepted that application by his order dated 16-7-1990 and that order was affirmed on appeal by the judgment of the learned Additional District Judge, Gujranwala dated 6-2-1991. The learned Rent Controller and the learned Additional District Judge found, and here it is sufficient to quote from the judgment of the learned Additional District Judge "Challan forms contain the specific column No,2 where the name and address of the person on whose behalf money is paid is to be mentioned.
Despite this clear provision, the appellant did not even mention the name of the landlord in the relevant column of challan forms and instead filled his own name in column No,1 as well as in column No,2. This cannot be said, to be bona fide omission or accidental error
6. Learned counsel for the appellant argued that it was nowhere alleged in the respondent's application that the omission to mention the landlord's name in column 2 of the challan forms was contumacious; that the learned Rent Controller and the learned Additional District Judge did not record a finding that the act of the appellant in mentioning his own name in column 2 of the challan forms was a contumacious act and that the learned Courts below were wrong in holding that there was non-compliance with the order under section 13(6) of the Ordinance. It was argued further, that the learned Rent Controller afforded no opportunity to the appellant to show that the mentioning of his own name in column No,2 of the challan form was not a contumacious act and that it was a mere clerical error. Learned counsel for the respondent agreed that the principle on which the Courts proceed in such cases is that the tenant in not mentioning the landlord's name in column No,2 of the challan form is actuated by malice and is guilty of contumacy. He, however, argued that this was a case of contumacy. He went so far as to contend that where the tenant writes his own name in column No,2 instead of the name of the landlord, the law regards it as a deliberate and contumacious act.
7. Section 13(6) of the Ordinance requires the Controller to direct the tenant to deposit the rent due from him and also to deposit regularly till the final decision of the case, before the fifteenth day of each month the monthly rent due from him. "If there is any dispute about amount of rent due or the rate of rent the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose". It enacts further that "if the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case".
Subsection (6) of section 13 enacts also that the Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant. Subsection (8) of section 13 provides: "The rent deposited by the tenant under this section shall, subject to the final determination of rent as payable by the tenant, be paid to the landlord at the conclusion of the proceedings or on such earlier date as may be specified by the Controller."
8. A reading of subsection (6) in its immediate context, that is, section 13 as a whole and subsection
(8) thereof, in particular, should, in my opinion, produce the following results:
(i) If there is a dispute about the rent due or its rate, then, the Controller must determine the amount, but that determination (a) will be approximate; and (b) subject to the fmal determination of the rent payable by the tenant;
(ii) though the determination is approximate, and subject to the final determination of the rent by the Controller, yet, the tenant must comply with the order directing him to deposit the rent so much so that if he makes default in the compliance of the order, he is liable to summary eviction. This penalty of summary eviction is not for mere "non-compliance", it is for making "default in the compliance of such an order"; and
(iii) the expression 'subject to the final determination of rent as payable by the tenant' in subsection (8) necessarily means this that the Rent Controller shall direct the payment to the landlord of the whole or so much of the rent deposited as is found to be payable to him. For it may well be that the. Rent Controller finds that no part of the rent deposited or only a portion of it is legally payable to the landlord. In that case, it will be illogical to hold that the rent found not payable to the landlord must also be paid to him. Therefore, the power to determine the rent payable by the tenant must necessarily be held to include the power to direct the whole or any part of it to be returned to the tenant. To put it differently, the payment of the rent deposited is subject to the order of the Rent Controller and if the fmal determination be that the whole or a part of the rent deposited by, the tenant is not payable to the landlord, the Rent Controller must direct the payment of such rent to the tenant."
9. This can be illustrated by the facts of this case. Suppose that the tenant in this case is able to prove that he had paid Rs,1,70,000 as advance rent to the landlord. That would mean that the rent deposited by him in pursuance of the order under section 13(6) was not payable by him to the landlord. And, if it was not payable to the landlord, then, it must be returned to the tenant. Section 13, subsection (8) must, therefore, by necessary implication, be held to give the Rent Controller the power to direct the payment of the rent deposited to the landlord or to the tenant according to his final determination.
10. The expression 'default' in subsection (6) of section 13 of the Ordinance is what is called by lawyers a term of art or what is called in popular parlance 'legal jargon'. In the leading case Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 Supreme Court 530) on the meaning to be given to the word 'default' in subsection (6) of section 13 of the Ordinance, it was held: "This much can safely be said that it cannot possibly excuse noncompliance which is avoidable.
The most literal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way, responsible."
' The word 'default' it was held further: "In legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. 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 what was &scribed as the leading authority on the subject, Khawaja Ghulam Mustafa v. Mian Waqar Ahmad (PLD1980 Supreme Court 9), the petitioner before the Supreme Court had obtained the premises from the respondent's father, Haji Abdur Rashid; the respondent's case was that the petitioner had become his tenant "due to the will executed in his name" and that the petitioner had after the death of his father been paying the rent to him as his landlord. The petitioner admitted that he was the tenant of Haji Abdur Rashid but obliquely tried to deny the relationship of landlord and tenant by saying that Haji Abdur Rashid had left other heirs as well and that he, Haji Abdur Rashid, had agreed to sell the property in question to him and that his possession was in part performance of the alleged sale. In compliance with an order under section 13(6), he had deposited the rent, not in the name of the respondent, but in the name of the heirs of Haji Abdur Rashid. This, it was held "was intentional disobedience of the order, passed under section 13(6) in a manner which was intended to harm the interest of the landlord". The deposit in the names of all the heirs, it was held, "was intended to create hurdles for the respondent in either case whether he accepted it or refused the same. In any case, it cannot be denied that by joining others with the landlord, in the deposit, the petitioner reduced the amount, which as found by the learned Rent Controller, tentativaly, was due to the respondent as rent". In that behalf reference was made to an earlier case Haji Allah Ditta v. Mst. Shahzadi Bilqis and another; in that case the tenant just deposited the amount but not in the name of the landlord concerned and as a matter of fact did not show the name of any person for whom the amount was deposited. It was held that "the omission to mention the names of the persons on whose behalf the rent was being deposited appears to be deliberate and therefore the deposit of money by the petitioner in the treasury cannot be regarded as lawful tender of the rent". The conclusion reached, therefore, was that "the deposit of rent by the tenant in the names of a large body of persons, namely, the heirs of Haji Abdur Rashid, instead of the respondent who had been specifically accepted as his landlord as explained earlier, was deliberate and contumacious and the Courts below were justified in not endorsing the validity of such a deposit". Learned counsel for the respondent also relied upon Bahadur Khan and others v. Ch. Muhammad Hussain and others (1991 S CM R 429). In that case the landlord's name was Muhammad Hussain son of Wali Dad, but the rent was deposited in the name of Muhammad Hussain son of Imam Din. It was held that the deposit of rent "in the name of wrong person does not amount to tendering the rent in favour of the landlord"; that the landlord could not receive the rent deposited in favour of a wrong person and that the Courts below had rightly held that in so doing the tenant had committed default.
12. Learned counsel for the respondent also cited two unreported single Bench cases, of this Court; one Writ Petition No,225/88 and the other Writ Petition No,1044/89. There, as here, the tenants had in column 2 of the challan form written their own name instead of writing the name of the landlord. In dismissing the writ petition, the learned Judge in Writ Petition No,1044/89 noticed that the learned Courts below had found that the tenant had deliberately and contumaciously entered his name in cohimn Nos.1 and 2 in the challan forms " and the learned Judge in deciding Writ Petition No,225/88 also noticed the finding of the Rent Controller affirmed on appeal by the Additional District Judge that the "omission was deliberate and contumacious".
13. Now if the true rule be, as the learned counsel for the parties agreed that it is, that the real ground on which the Courts in such cases proceed to hold that there was default in compliance with the order under section 13(6) of the Ordinance is the ground of contumacy and intentional disobedience, then it should follow that it has to be found as a fact by the Rent Controller before he strikes off the tenant's defence and directs his eviction that the act of the tenant in omitting to write the name of the landlord in column 2 of the challan form is contumacious and intentional disobedience of the order under section 13(6). There may be a class of cases in which it may not be difficult from the pleadings and admitted facts of the case to infer that there was such contumacy or intentional disobedience. To that class belong the cases in which the tenant denies the title of the landlord and himself claims to be the owner of the premises in question. The case of Ghulam Mustafa v. Waqar Ahmad (PLD 1980 SC 9) also provides an instance of such a case. As we have seen there only one of the heirs of Haji Abdur Rashid had applied for the eviction of the tenant and the case of the tenant was that Haji Abdur Rashid had been survived by other heirs also. In such cases the tenant is probably playing in the hands of one of the surviving heirs of the landlord and the intention is to create complications as regards the possession of the premises among the heirs.
' However that may be, there can be no doubt that the question of contumacy and intentional disobedience is a question of fact and while a decider of fact may infer it from the admitted and proved facts, yet, the tenant may be able to show that he was not guilty of the contumacy or intentional disobedience and that the omission to mention the name of landlord or the mention of his own name instead of the name of the landlord was a mere technical or clerical error. It was stated by the learned counsel for the appellant that the challan forms were not filled in by the appellant himself; that they were probably filled in by a petition-writer or by the clerk of the appellant's counsel and that it was the fault of the scribe that instead of writing the name of landlord in column 2, his own name was written. It was argued with considerable force that the appellant had no reason to write his own name in column 2 of the challan form, for he admitted the existence of the relationship of landlord and tenant and in any case the payment of the money deposited by him was subject to the final order of the learned Rent Controller. I am persuaded to agree and hold that the learned Rent Controller was wrong in proceeding to direct the eviction of the appellant without determining the question whether the act of the appellant was contumacious, deliberate and intentional disobedience of the order under section 13(6) of the Ordinance. In the facts of this case, I am inclined to take the view that there was in this case no default in the sense ascribed to that expression in Ghulam Ahmad Lundkhor's case. I should, I think, accept the explanation that there was no reason for the appellant to intentionally mention his own name in column No,2 of the forms and that the fault lay with the scribe. He had not denied his status as tenant of the respondent nor had he claimed any title in the property in himself or in somebody else. Generally a challan form, which is a technical document, is filled in by the lawyer or somebody who has the experience and knowledge of writing such documents and I can see no reason to reject the explanation that the challan forms in this case were also filled in by somebody other than the appellant.
14. I am tempted to look at the matter from another angle also. It has been seen that when the dispute is about the amount of rent due or the rate of rent between the parties the Rent Controller is finally to determine the rent due from the tenant and direct that the same may be paid to the landlord. The rent is deposited in the Government treasury, with the order of the Rent Controller. In other words, the Government Treasury acts as the agent of the Rent Controller and the payment of the rent by the treasury is subject to the order of the Rent Controller. This is made clear by the provisions of subsection (8) of section 13 of the Ordinance. After the Rent Controller has finally determined the amount of rent due from the tenant, the Rent Controller is to order that the rent deposited by the tenant "be paid to the landlord at the conclusion of the proceedings or no such earlier date as may be specified by the Controller". Undoubtedly, the Government treasury cannot pay the amount so deposited by the tenant without the order of the Rent Controller. There can also be no doubt that as the Government treasury is the agent of the Rent Controller, depsite the fact that in column Not of the challan form, there is mentioned the name of a person other than the landlord, the Rent Controller can direct the payment of the rent to the landlord. It seems to me, therefore, that if the rent has been deposited and the payment of the rent so deposited is subject to the order of the Rent Controller, then an error such as had occurred in this case should be treated as a clerical or technical error and should not entail the extreme penalty of eviction. This principle appears to emerge from that class of case, Abdullah Ghanghro and others v. Mst. Tahira Begum and others (1988 SCM R 970) being one of them, in which the rent deposited in one proceedings between the same parties was treated as sufficient compliance with the order of the Rent Controller made in another proceedings. In Abdullah Ghanghro's case it was held that "since petitioners were out of pocket of the amount of rent payable by them which they actually deposited in Court with the intention that the landlord may withdraw the amount, if he so desires, and there is no complaint that the landlord could not do so, petitioners cannot be condemned as guilty of not depositing rent in Court. They had actually deposited the rent in Court but made the mistake of depositing in one case and not the other and this amounts to an irregularity rather than penal noncompliance of the order of the Rent Controller".
15. For these reasons, I would accept the appeal, set aside the order of the learned Rent Controller dated 16-7-1990 and that of the learned Additional District Judge dated 6-2-1991 and hold that there was no default in compliance with the order of the learned Rent Controller dated 29-6-1988 within the meaning of section 13, subsection (6) of the Ordinance. The result will be that the matter will go back to the learned Rent Controller for its decision on its merits. The parties are left to bear their own costs.