1. ' Appellants Zahurul Hassan and brothers are the tenants of premises situated on S. B. 12, Napier Strset, Karachi, which is owned by respondent Abdul Hussain. The respondent3 brought an application, on 31st July, 1963, for the ejectment of the appellants on the ground of default in the payment of rent. After the written objections had been filed the Additional Civil Judge and the Rent Controller, Karachi, on 31st July, 1963, passed an order of deposit of arrears of rent and future rent under section l316) of the West Pakistan Urban Rent Restriction Ordinance (hereinafter called the Ordinance). The arrears were fixed at Rs, 989 payable in two equal installments, before 5th August, 1963 and 5th September,
190. As to the future monthly rent it was to be deposited before the 5th of each month, as required under subsection (6) of section 13 of the Ordinance, as it then stood. First installment towards arrears of rent, was duly paid according to the order of the Rent Controller dated 31st July, 1963. But as to the second installment there was a default and an application was moved on 25th September, 1963 for striking off the defense of the appellant. The learned Rent Controller granted the prayer by his order dated 1 1 th November, 1963 and consequently ejectment of the appellant was ordered.
2. ' In appeal the pleas taken before the Additional District Judge, Karachi were that the default was not wilful, and that the default, if any, had been waived by the landlord. Both these pleas were repelled by the learned Additional District Judge, by his order dated 27th January, 1971. In second appeal before this Court the same two pleas were raised but were found without substance, by Dorab Patel, J., as he then was, by his detailed order dated 12th February, 1971, and the appeal was consequently dismissed in limine. An application was moved for grant of certificate for leave to appeal to the Letters Patent Bench. It was found that such certificate could not be granted as the plea of waiver had not been taken before the Rent Controller. However the application for the grant of certificate was treated as a review application on the ground that appeal raises a pure question of law arising from the record of the case, and it was admitted to consider that question alone.
3. ' The question on which the appeal stood admitted is clear from the following portion of the admission order :- ' Learned counsel then sought permission to plead an objection which had not been raised in the Courts below or before me. He produced for the first time the order of the Rent Controller for tentative deposit of rent and because the order directed the appellant to continue paying or depositing the current monthly rent", learned counsel stated that the order was illegal. This submission was supported by the observation in Kari Muhammad v. Abdul Quddus (PLD 1965 Kar.
4. 367). In view of this authority it is clear that the objection now raised is a question of law which arises directly from the record of the case.
5. ' The arguments addressed before me at the bar are only in support of the ground on which the appeal was admitted.
6. ' As the ground taken directs an attack on the tenative rent order under section 13(6) of the Ordinance passed on 31st July, 1963, it would be necessary to reproduce the same "Parties present. The opponent is ordered to pay or deposit Rs, 989 as arrears of rent till July, 1963, in two r2) equal instalments payable before 5th August and 5th September, 1963, and continue paying or depositing the current monthly rent at the rate of Rs, 23 p.m. Before the 5th of each month till the decision of the case,"
7. ' It is contended that the order violates the provisions of subsection (6) of section 13 of the Ordinance, inasmuch it directs the tenant to pay or deposit the rein, while the law requires the Rent Controller to give a direction of deposit of rent only ; and that it confers no authority upon him to direct payment of the rent. Relevant part of the subsection (6) of section 13 reads as follows t - "In proceedings under this section on the first date of hearing or as soon as possible after that date and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the ath day (Now 15th day) of each month, the monthly rent due from him........................
8. ' While relying upon the judgments of the Karachi Bench of the West Pakistan High Court reported as Ahsan Ali v. Jaffer All (I) and Khair Muhammad v. Abdul Qudus (2), Mr. Baluch, the learned counsel for the appellant, has contended that the provision is mandatory and penal in character and must be constructed very strictly. There is no doubt that the provision is mandatory in nature, inasmuch as the Rent Controller cannot proceed further, in the matter of an application under section 13, unless he has passed an order under subsection (6) thereof, or that he is bound to pass an order striking off the defence and of putting the landlord in possession in case of default of the order made thereunder. But to contend, on the basis of such provisions, that they are penal in nature may not be correct. In Togha Khan v. Muhammad Madani Abbas (3) the view taken was that the objection of demanding future rent before a specified date is to ensure the payment of the rent to the landlord without having recourse to litigation and this being so, the provision in regard to deposit of future rent before a specified date is never intended to be penal. In Masood Hussain v.
9. Muhammad Saeed Khan (4) it is held that this provision deals with private rights and is meant for the benefit of the landlord and could be waived by him. Oa general principles too if a tenant does not wish to pay the arrears of rent he can vacate the premises. By such intendment of the law it cannot be claimed that any hardship is caused thereby.
(1) PLD 1964 Kar. 418 (2) PLD 1965 Kar. 367
(3) PLD 1964 Pesh. 101 (4) PLD 1965 Lab. 11 ' Their Lordships of the Supreme Court in Ghulam Muhammad Khan Lundkhur's case (1) have however looked at this provision of the Ordinance from a different angle and have given the following as its objects, from which the nature of the provision can very well be ascertained : "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)."
10. To lose privilege upon failure to fulfil a certain condition is not the same thing as being liable to a penalty upon commission of some act' forbidden by statute.
11. ' The test whether a law is penal is whether the wrong sought to be A redressed is a wrong to the public or a wrong to an individual. In the former case it would be penal but not always so in the later case. In Corpus Juris Secundum (2) the test for determining the penal nature of a statute is, given in the following words "Since the distinction between a remedial and penal statute necessarily lies in the fact that the latter is for the sole purpose of punishment and to deter others from offending in like manner, while a remedial statute is to adjust the rights of the parties as between themselves with respect to the wrong alleged, the true test is determining whether a statute is penal is whether the penalty is imposed for the punish ment of a wrong to the public, or for the redress of an injury to the individual, although a statute may be considered as penal when the action is to enforce a penalty and as remedial when it is sought to enforce the remedy."
12. Imposition of a fine, penalty or forfeiture renders a statute penal. It is correct that payment of such fine, penalty or forfeiture may not, per se, render the remedy Civil, but the question to be asked in such cases would be if the penalty imposed is by way of compensation for the breach. If so the statute would be remedial and not penal.
13. ' The Ordinance though primarily meant to restrict the eviction of tenants from certain premises in urban areas, but it does provide safeguards for certain interests of the landlords as well. He is assured to be compensated with the possession of the demised premises if the tenant commits breach of his liability to pay rent during the pendency of a rent application. Such quick remedy is provided by subsection (6) of section 13 of the Ordinance. This provision is therefore, obviously remedial in nature and cannot be termed penal.
(I) PLD 1967 SC 530 (2) 82 C J S Statutes 389 ' In this view of tfe matter these provisions of the Ordinance may not be subjected to same strict construction as is the case with a penal statute. The only consideration here would be if the order of 31st July, 1963, was ambiguous to the extent as to create a misunderstanding in the mind of the tenant regarding his liability to pay the rent of the premises. If the order is shown to be such it could be claimed that misunderstanding caused thereby was the reason of default. Nothing of that sort has been claimed in this case. The order is very clear and it was duly acted upon by the, appellant when he paid first installment of the arrears of rent. Even in the case of second installment the amount was duly tried to be tendered through a cheque. But at the same time a request for presenting the cheque a week later was made. It was only when the cheque was dishonored, having been presented earlier, that the landlord moved the Rent Controller to strike off the defence.
14. In these circumstances there can be no grounds to contend that the order dated 31.7-1963 was ambiguous in any manner. The direction to pay or deposit the rent, has not confused the tenant.
15. On the contrary it provided a choice to the tenant either to deposit the rent in Court or pay directly to the landlord. In any case it left no doubts in the mind of the tenant as to his liability as regards the payment of rent. The departure from the letter of the provisions of section 13(2), though not to be approved of, is not fatal enough to render the tentative rent order as illegal. The tenant cannot, therefore, be allowed to evade the consequences of the default committed by him. In these circumstances I find no force in this appeal, which is dismissed with costs throuehout. The tenant shall place the landlord in possession of the disputed premises within a month from today.