Through this common judgment I intend to dispose of F.A.O. Nos.2 and 14 of 2002 as common question of fact and law is involved in both the appeals.
2. Facts of the case are that in 1991 the respondent filed application for eviction against each of the appellant/tenant from premises in dispute on the ground of default, re-construction and personal requirement which was allowed by the learned Rent Controller vide order dated 15-11-1995, however, in appeal this Court vide judgment dated 11-11-1997, set aside the eviction orders anti present appeals are pending before the Hon'ble Supreme Court. It appears that the appellant/tenant in both the cases had been depositing the rent in Court. The respondent submitted applications for withdrawal of rent, however, Civil Nazir reported that the rent was being deposited in the name of NIL instead of landlord. In these events of the background, the respondent instituted eviction application against the appellant/tenant to seek eviction on the ground of default on the plea that the rent tendered/deposited by tenant in the Court was not a lawful tender as the same was deposited in the name of NIL instead of the respondent. It was also alleged that the tenants have not at all paid or deposited rent since September, 2000 till filing of the eviction application. The tenants/appellants filed re-joinder wherein various legal objections were raised besides contesting the application on factual ground. It is important to point out that appellant/tenant in each appeal took the position that he has not committed any default in payment of rent.
3. Out of the pleadings of parties learned trial Court framed following issues for determination:--- F.A.O.No, 2 of 2002
(1) Whether the present eviction application is not maintainable in view of preliminary legal objections A, B and E of the rejoinder?
(2) Whether the respondent No,1 has not deposited the rent of shop in question from January, 2001 up to date?
(3) Whether the applicant is entitled for the relief claimed for?
(4) Relief?
F.A.O. No, 14 of 2002
(1) Whether the present eviction application is not maintainable in view of preliminary legal objections A, B and C of the rejoinder?
(2) Whether the respondent No,1 has not deposited the rent of shop in question from January, 2001 up to date?
(3) Whether the applicant is entitled for the relief claimed for?
(4) Relief? The learned Rent Controller after hearing the arguments on the preliminary objection dismissed the eviction applications vide order dated 16-7-2001, on the ground that the same were not maintainable in view of section 14 of Urban Rent Restriction Ordinance, 1959. The respondent No, 1 feeling aggrieved by the said order filed appeals before this Court which were accepted vide order dated 12-10-2001 and the eviction applications were remanded to Rent Controller for decision on merits. After remand respondent/applicant produced two witnesses namely A.W.1 Alam Din and A.W. 2 Baz Muhammad. He also got recorded his own statement on oath: Whereas in rebuttal respondents examined D.W. 1 Baz Muhammad Civil Nazir and also got recorded their statement on oath. It is pertinent to mention here that in F.A.O No, 14 of 2002 statement of Buzurg Jamil was recorded as attorney for the respondent/appellant.
4. The learned Rent Controller after evaluating the evidence on record and hearing the parties 'came to the conclusion that the appellants have committed default, as such; ordered for their eviction from the shops in dispute, hence these appeals.
5. I have heard the learned counsel for the parties, perused the evidence produced before the Rent Controller and the impugned orders.
There is no dispute as regards the facts of these two cases. The rent for the disputed period was deposited by the tenants with the Rent Controller within the due time but name of the person in whose favour the deposit was made was not mentioned. Similarly municipal number of shop was also not mentioned. The only question which needs consideration is as to whether such a deposit can be termed/considered due tendering of rent within the meaning of section 13(2) of the Urban Rent Restriction Ordinance, 1959. According to the learned counsel, it can be; because the appellants have deposited the rent in time but due to inadvertence they have not mentioned the name of landlord and number of shop in the bank challans. Moreover, the landlord has withdrawn the rent, as such; he cannot claim that the tenants have committed any default and asked for eviction on ground of default. At the best it can be termed as technical default but not wilful or deliberate one. Therefore, the learned Rent Controller should have exercised discretion in favour of the appellants in view of the wording of section 13(2)(1) of Urban Rent Restriction Ordinance, 1959.
It is true that there is mark difference between the provisions of section 13(2) and section 13(6) of the Ordinance. In the former case Rent Controller has been given discretion not to grant ejectment application on the ground of non-payment of rent, if the facts of the case so warrant. The words "the Controller may make an order directing the tenant to put the landlord in possession of the building" have been used in section 13(2) of the Ordinance whereas in section 13(6) it has been provided that if a tenant makes default of rent order passed under the above subsection, his defence shall be struck off and the landlord be put into possession of the property. The use of word "shall" in section 13(6) of the Ordinance is in contrast to word "may" used in subsection (2) of section 13, of the Ordinance, therefore, Rent Controller has discretion in the matter falling under section 13(2) of the Ordinance. But question arises under what circumstances the discretion can be exercised in favour of tenant despite the fact that he had failed to pay the rent and committed default. In number of cases it has been held that before penalizing a tenant it is obligatory for the Controller to ascertain whether alleged default was deliberate and wilful or not. Following observations in this behalf are sufficiently instructive:-- "The word 'default' 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 noncompliance 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, this unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle to the word 'default' should mean an act done in breach of a duty or in disregard of an order or direction." Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530. I have examined the present cases in light of the above mentioned observations of the Hon'ble Supreme Court. It may be seen that prior to the filing of the eviction applications, the respondent filed eviction applications against both the appellants which were decided in favour of the respondent but reversed by this Court. Against the said order the appeals are pending before the Hon'ble Supreme Court of Pakistan. The relationship of landlord and tenant was admitted in the above mentioned eviction applications as well as in the present proceedings. Only dispute between the parties is about the rate of rent. In such circumstances it was obligatory on the appellants to have deposited the rent in favour of respondent, at least at the rate which they claim as the rent of the premises. It has come on record through the evidence of the respondent that both the appellants were depositing rent in his favour till December, 1998 but thereafter they suddenly started depositing rent without mentioning his name in the relevant column of the challan. This assertion of the respondent/landlord has not been rebutted by the appellants. Even in their statements before the Rent Controller they have not offered any explanation for non- mentioning the name of landlord/respondent in bank challan. Nor had they stated that this omission was inadvertent. In such circumstances it can be safely concluded that the omission of the landlord's name was deliberate and not due to some inadvertence and the deposit of rent without mentioning the name of landlord cannot be termed as lawful tender. Reliance is placed on a judgment of Hon'ble Supreme Court of Pakistan reported in PLD 1980 SC 9.
So far contention of the learned counsel for the appellants that the respondent has withdrawn the rent, as such; default, if any, has been waived, it is suffice to observe that it is well-settled law that mere withdrawal of rent does not amount to waiver of the right of the landlord to apply for eviction on the ground of default. The case-law referred by the learned counsel for the appellants are distinguishable on the facts of the present case. In 1987 SCM R 1013 the tenant deposited rent in the name of wife of the landlord who was also co-landlord while in PLD 1998 Quetta 9 the rent was deposited in the name of father of the landlord/applicant who was not only previous landlord but also a co-sharer in the property. Therefore, these case-laws, in my humble opinion, are of no help to the learned counsel.
In light of the above discussion I am of the considered view that the rent deposited by the appellants without mentioning the name of the landlord and number of shop, was not a lawful tender within the meaning of section 13(2)(i) of the Balochistan Urban Rent Restriction Ordinance and the learned Rent Controller rightly ordered for the eviction of the appellants from the premises in dispute on the ground of default in payment of rent. These appeals being devoid of any merits are accordingly dismissed. However, keeping in view the fact that the appellants are running business in the shops in dispute, they are allowed four months' time to hand over the vacant possession to the landlord provided that they regularly deposit rent in favour of the landlord.