1. ' This is an appeal under section 24 of Cantonment Rent Restriction Act, 1963 (hereinafter called Rent Act) directed against an order, dated 28-2-1994 passed by Additional Controller of Rents, Karachi Cantonment in Rent Case No,20 of 1990 Mst. Zohra Latif v. M/s Port Qasim Authority whereby an application under section 17(9) of Rent Act filed by respondent was allowed and the defence of the appellant/tenant was struck off for failure to comply with an order passed under section 17(8) of the said Rent Act, consequently, the appellant was directed to hand Over the vacant possession of the premises in dispute within 30 days from the date of impugned order.
2. ' Brief facts of the case are that the respondent filed ejectment application against the appellant/tenant under section 17 of the said Rent Act on the ground of default in payment of rent and personal requirement who filed written statement wherein non payment of rent was denied, so far personal requirement it was stated that it was mala fide. The respondent moved an application under section 17(8) of the said Rent Act whereby the Rent Controller passed an order on 11-5-1991 directing the appellant to deposit arrears of rent from 3-8-1990 to 2-5-1991 at the rate of Rs,5,000 per month on or before 11-6-1991 and future rent to be deposited before 5th of each following month until final disposal of the case.
3. ' The respondent moved an application under section 17(9) of the said Rent Act on 25-1-1992 wherein he stated that the appellant wilfully and deliberately has failed to comply with the order, dated 11-5-1991 and has not deposited. Monthly rent of Rs,5,000 for the month of July 1991 but only deposited an amount of Rs,4,850 instead of Rs,5,000 that also on 6-8-1991; (ii) Rent for the month August, 1991 was deposited on 7-9-1991 that also only Rs,4,850 instead of monthly rent of Rs,5,000,
(iii) Rent for the month September, 1991 was deposited on 5-10-1991 that also Rs,4,850 instead of monthly rent of Rs,5,000; (iv) Rent for the month October, 1991 was deposited on 5-11-1991 that also .Rs,4,850 instead of Rs,5,000; (v) Rent for the month November, 1991 was deposited on 5-12-1991 that also Rs,4,850 instead of monthly rent of Rs,5,000 and (vi) Rent for the month December, 1991 was deposited on 7-1-1992 that also only for Rs,4,850 instead of Rs,5,000.
4. ' The appellant filed objections on 22-2-1992 wherein it was stated that so far the month of July 1991.
5. Pay Order was prepared on 4-8-1991 but it could not be deposited in the office of Rent Controller as when the officer carrying Pay Order reached, the office was closed hence it was deposited on the next day, i.e, 6-8-1991 and monthly rent was deposited after the deduction of 3% income tax at source as per Government's instructions. In respect of monthly rent for August, 1991, Pay Order was prepared on 4-9-1991 and was deposited on 5-9-1991 after deduction of 3% income tax at source.
6. So far monthly rent for September, 1991, Pay Order was prepared on 3-10-1991 and was deposited on 5-10-1991 after deduction 3% income tax. So far rent for October, 1991, Pay Order was prepared on 4-11-1991 and was deposited on 5-11-1991 after deduction of 3% income tax and for the month of November, 1991, Pay Order was prepared on 5-12-1991 and deposited on the same day after deduction of 3% income tax and monthly rent for the month of December, 1991 was deposited through Pay Order on 7-12-1992 after deduction of 3% income tax.
7. ' I have heard the learned counsel for parties and perused the R&P of the case.
8. ' Contention of learned counsel for appellant is that in the circumstances stated in the objections filed, there could not be said to wilful and deliberate default in the deposit of monthly rent and so far short amount of deposit in monthly rent, it was because, 3% income tax was deducted under the instructions of Government. He has placed reliance upon Fazal Haque v. Abdul Latif (PLD 1975 Karachi 681). His next contention is that in view of section 22 of the said Rent Act, no eviction could be ordered of the appellant in view of the bar contained therein.
9. ' Learned counsel for respondents has argued that there has been deliberate and wilful non compliance of order, dated 5-11-1991 and further provision of section 22 of the said Rent Act was not applicable in the instant case in view of proviso contained in the said section. He has placed reliance upon Muhanimad Naeem and another v. Messrs Karim Bidi Works (1992 CLC 2499) at 2500 and Government of Sindh v. Murad Ali Khan (1982 CLC 1166): ' The tentative rent order passed under section 17(8) of the said Rent Act reads as follows:-- ' "The rent is due from 3-8-1990 to 2-2-1991 at Rs,5,000 per month as claimed by the applicant. The rate of rent is admitted by the parties.
10. ' I, therefore, direct the opponents to deposit arrears of rent from 3-8-1990 to 2-2-1991 at Rs,5,000 per month in this. Court within one month from the date of this order, i.e, on or before 11th June, 1'991.
11. The opponents are further directed to deposit current and future monthly rent at the same rate in this Court before 5th of each following month until the final "disposal of this case."
12. ' There is no default so far as the deposit of arrears of rent is concerned. Default is said to be for the month of July 1991, August, 1991, September, 1991, October 1991, November 1991, December, 1991 and January, 1992. One aspect of the default is that for all the above said months, the amount of monthly rent of Rs,5,000 was not deposited but an amount of Rs,4,850 was .Deposited in each month and thus there was shortage of amount of Rs,250 per month in the deposit of monthly rent in each of said months. Next aspect of the default in the payment of monthly rent from July 1991 to January 1992 is that deposit of monthly rent was not made before 5th of every calendar month. The reason given by the appellants for the month of July 1991 is that the person carrying Pay Order for deposit, reached the office of Cantonment Board at 1500 hours when the office was closed, therefore, deposit was made on 6-8-1991. So far deposit of rent for the month August, 1991, the reason given is that the Pay Order was prepared on 4-9-1991 but was deposited on 5-9-1991, so far rent for the months from September, 1991 to November, 1991, it was deposited on 5th of the respective months and so far the rent for the month of December, 1991 it was deposited on 7-1- 1992, for that, reason given was, that signatory of the cheque had gone away to Islamabad, therefore, the cheque could not be signed and was signed on 7-1-1992, therefore, there was no deliberate and wilful default. So far the reason given for shortage in the deposit of monthly rent is, that 3% of income tax was deducted as per Government's instructions. The reasons given could neither be termed to be unavoidable nor beyond the control of the appellant nor could be termed to be technical but would be intentional, deliberate and in addition to be act of gross negligence on the part of the appellants in, making compliance of the order, dated 5-11-1991 passed under section 17(8) of the said Rent Act. Reference may be made to Sher Ali v. Mst. Hashmat Aziz (1990 M LD 1869) wherein learned Judge in Chambers at page 1870 has observed:-- ' "The provisions of subsection (9) of section 17 of the Act ibid are mandatory in nature and the learned Rent Controller was bound to give affect to it unless the tenant could satisfy him that the default was not wilful but was due to causes beyond his control or unavoidable circumstances."
(ii) Raja Aurangzeb and others v. The Additional Rent Controller Lahore Cantonment and others (1985 SCM R 876) wherein the tenant had short deposit rent and the reason given was that the tentative order was not properly conveyed or understood by the tenant. The said ground was held not such as to be treated to be a ground beyond the control of the tenant.
(iii) Province of 'Punjab v. Civil Judge, Lahore and others (1982 SCM R 692) wherein at 694 it was observed:-- ' "The Government Departments are required to pay rent to the landlord like any other private tenant and would be equally liable to ejectment on default in payment of rent in accordance with law. As tenants, a Government Department and a private citizen are both obliged to tender rent to the landlord. Similarly both are liable to ejectment on default of payment of the rent in accordance with law. It is not open to the Government Department to take the premises on lease and impose conditions of its own on the landlord as in the present case. It is required to pay him the rent- and in doing so the Department is doing him no favour, as it is their duty, in law, to tender rent to the landlord. The fact that the building had been hired to run a school makes it all the more obligatory on the respondents to have prescribed greater vigilance in paying the rent in time."
(iv) Government of Sindh v. Murad Ali Khan (1982 CLC 1166) wherein it has been observed that no special or different treatment can be given to a Government functionary as compared to ordinary citizen so far as rent laws are concerned.
13. ' In the instant case, the reasons given for not depositing rent before 5th of every calendar month cannot be said to be one of unavoidable circumstance or beyond the control of the appellants. If the appellant would have been serious and vigilant, they could have got the Pay Orders prepared long- before the rent was to be deposited and why the appellants should have waited for the last date c to arrive for which there could be likelihood of default be committed or noncompliance in terms of subsection (9) of section 17 of said Rent Act could be made. No notification with regards to deduction of 3% of income tax has been produced or filed by the appellants to show that respondent was also bound to the deductions of 3% income tax at source from the amount .Of monthly rent which was ordered by the Rent Controller, which if deducted would invite punishment/penalty provided in subsection (9) of section 17 of Rent Act. There existed no legal justification for the appellant, not to deposit full monthly rent on due dates in terms of order, dated 5-11-1991. Fazal Huque v. Abdul Latif Akhund (PLD 1975 Karachi 681) relied upon by the learned counsel for appellant had different facts hence cited case would not be applicable to the facts of this instant case. In the cited case, rent was deposited on 15-3-1968 whereas the tenant had to deposit before 15th of every calendar month and the reason assigned by the tenant was that from 6-3-1968 to 14-3-1968 he remained confined to bed due to serious illness of Status Asthema and was under the treatment of Dr. M. Hayat Zafar whose medical certificate was filed with affidavit and in the said circumstances default in respect of one day's delay for one month was held to be not wilful default. However, in the instant case there are several months' default in respect of late deposit so also short deposit of rent.
14. ' In view of the aforesaid reasonings, I do not find merits in this appeal which is hereby dismissed.
15. ' There are the reasons in respect of short order announced on 20-1-1998.