' The facts giving rise to this II Appeal under section 15(4) of the Sind Urban Rent Restriction Ordinance, 1959 (hereinafter called the Ordinance) briefly stated, are : The appellant is tenant of the respondent in respect of the house situated on Plot of land bearing No, 39-C/A, Block 6, Pakistan Employees' Co-operative Housing Society, Karachi. The house was let out to the appellant on 1st November, 1966 for one year and according to the agreement of the tenancy the rent was payable for the whole year in advance on 1st November, 1966. The tenancy was renewed from year to year on the same terms and conditions. The last renewal was for the year commencing from 1st November, 1973. However, the rent for the year was not paid in advance on 1st November, 1973 as agreed.
2. Therefore, respondent on 29th April, 1974 filed an application under section 13 of the Ordinance being Rent Case No, 1289 of 1974 in the Court of VI Civil Judge, 1st Class, and Controller, Karachi.
During the pendency of this application, the Controller on 22nd November, 1974 passed an order under section 13(6) of the Ordinance directing the appellant to deposit the amount of Rs, 18,000 being the rent for one year in the Court before 20th December, 1974. He further directed the appellant to deposit the rent of November before 15th of December, 1974 and to continue to deposit the rent of each subsequent month before 15th of each succeeding month.
3. Aggrieved by this order of deposit of arrears of rent the appellant preferred an appeal, being Rent Appeal No, 7 of 1975, to the Additional District Judge, Karachi and also applied for stay of operation of the order dated 22-11-1974 which was granted on 4th January, 1975. The Additional District Judge, however, on 5th August, 1975 dismissed the appeal and vacated the stay on the ground that the order was not appealable. The Second Appeal, being Appeal No, 204 of 1975, which was preferred to the High Court also came to be dismissed on 29th January, 1976. However on 23- 12-1974 the respondent filed an application under section 13(6) of the Ordinance for striking off the defence of the appellant on the ground that he-had failed to comply with the order of the Controller by not depositing the amount of Rs, 18,000 being arrears of rent by the due date i,e, on 20th December, 1974 and the rent for the month of November, 1974 before 15th December, 1974. The appellant filed objections against this application wherein besides technical objections the appellant stated that he was depositing monthly rent in time in accordance with the order of Controller and has also furnished security to the extent of Rs, 18,000 as ordered by the appellate Court. However, the learned Controller by the order dated 17th April, 1976 struck off the defence of the appellant on the finding that he did not deposit the arrears of rent before 20th December, 1974 and the rent for the month of November, 1974 before 15th December, 1974 as directed. He also repelled the contention of the Advocate for the appellant that since the order of deposit of arrears of rent dated 23rd November, 1974 was stayed by the 1st appellate Court the appellant had not defaulted in depositing the arrears of rent by pointing out that the stay was granted by the appellate Court on 4th January, 1975 which was not retrospective in operation and the default had already been committed before the date of stay order. He also rejected the contention of the Advocate for the appellant that default was not deliberate and was due to circumstances beyond his control as the appellant was admitted in hospital due to heart attack. The Controller rejected this ground also for the reason that the certificate produced by the appellant in support of the illness was for the period of 6th December, 1974 to 27th December, 1974 and there was no satisfactory explanation for not complying with the order of the Controller between 28th December, 1974 and 3rd January, 1975 because stay order was passed on 4th January, 1975.
4. Aggrieved by this order the appellant filed an appeal with the II Additional District Judge, Karachi which was dismissed by him by the order dated 13th July, 1976 concurrently finding that the appellant had undoubtedly committed default in depositing the rent and the arrears and therefore his defence was rightly struck off.
5. I have heard Mr. Sabir Hussain Rehmani, Advocate for the appellant and Mr. A. M. Naqvi, Advocate for the respondent.
6. Mr. Rehmani has urged before me three grounds in support of this appeal. The first ground is that the default committed by the appellant was not wilful and therefore the defence of the appellant could not be struck off. The Second is that the Controller had no jurisdiction to entertain the application under section 13 of the Ordinance as the relationship was governed by the Transfer of Property Act. The third is that the respondent had no cause of action when he filed the application 29th April, 1974 and in other words, the application was premature.
7. Now, taking up the first ground the submission of the learned counsel for the appellant is that the appellant was confined to bed even after leaving the hospital till 15th January, 1975 and therefore, he could not deposit the arrears of rent and the rent for the month of November, 1974 till 4th January, 1975 when the appellate Court granted the stay. In support of illness during the period from 28th December, 1974 to 3rd January, 1975 he referred to a certificate dated 20th April, 1976 issued by Dr. Hameedul Hatch Consultant Physician.
8. However, the certificate dated 20-4-1976 relied upon by the learned, counsel for the appellant was not produced before the Controller when he passed the impugned order. In fact the certificate was obtained 3 days after the impugned order. Therefore, the Controller is right when he says "in the light of the above discussion I am of the view that the opponent has not explained the default in depositing the rent from 27-12-1974 till 5-1-1975 (4-1-1975) the date on which the stay was granted and as such I am of the considered opinion that the opponent has committed wilful default in depositing the rent in Court and hence has made himself liable for striking of defence".
Moreover, it is not shown that any application was filed before the lower appellate Court for permission to produce this certificate by way of additional evidence. I therefore, cannot take this certificate into consideration and the question whether the appellant had committed wilful default in depositing arrears of rent and the rent for the month of November, 1974, as ordered by the Controller being one of fact stands correctly answered by the concurrent findings of the Controller as well as the Additional District Judge, Karachi. Moreover, if the appellant could fill appeal against the order dated 24-11-1974 before 4th January, 1975 in spite of illness it is difficult to accept that he could not deposit the dues before the date for reasons beyond his control. It appears that the appellant had no intention to deposit the dues and was depending on stay of the order by the Appellate Court. I therefore, find no force in this ground and reject it.
9. However, I may mention that the learned counsel for the appellant cited a large number of cases in support of the contention that where default committed is not wilful. The defence cannot be struck off. These are:-
(1) Hashim Khan v. Ghulam Nabi and 7 others 1973 SCMR 112.
(2) Saeedan Bibi v. All Hussain 1975 SCMR 261.
(3) Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530.
(4) Qamaruz Zaman v. Sher Afzal PLD 1966 Pesh.
119.
(5) Mst. Shah Jehan v. Mst. Mukti PLD 1963 Kar.
777.
(6) Abdul Majeed v. Saadullah and others PLD 1963 Quetta 16.
(7) Ghulam Muhammad v. Mst. Raj Begum PLD 1962 Quetta 136.
10. I may, therefore examine these cases. The first case cited by the learned Counsel is Hashim Khan v. Ghulam Nabi and others. In this case the Controller on 14-5-1966 directed the tenant to deposit arrears of rent before 15-7-1966 and current monthly rent regularly by 15th of each month.
The tenant's counsel wrongly interpreted the order and informed his client that the arrears as well as the Current rent due were to be deposited by him by 15-7-1966. The order as interpreted by the Counsel was complied with. On these facts it was held by their Lordships of the Supreme Court that "the appellant acted on the advice given to him by the learned counsel and he could not be penalised merely because the Counsel's advice proceeded on a misinterpretation of the Rent Controller's order. In any event, we feel that it was a case of bona fide mistake both on the part of the counsel and the appellant in the construction of the order of the learned Rent Controller, and there was thus no case of wilful default on his part".
' It will be seen that the above-cited case has no relevancy to the question of default committed by the appellant as in the present case the order of the Controller was not misinterpreted nor was bona fide mistaken advice tendered to the appellant.
11. In Saeedan Bibi v. Ali Hussain the Rent Controller had ordered the tenant to deposit the arrears of rent in four equal monthly instalments but the first instalment deposited by the tenant was short by Rs, 30 which deficiency was made up by the tenant when he deposited the next instalment. It was pleaded on behalf of the tenant that the mistake had occurred due to misinterpretation of the order by his Counsel. On these facts it was held by their Lordships of the Supreme Court that the tenant could not be penalised for acting on bona fide mistaken advice of his counsel. This case again has therefore no relevancy to the facts of the present case.
12. In Ghulam Muham rad Khan Lundkhor v. Safdar Ali; their Lordships of the Supreme Court held :- "The word "default" in legal terminology necessarily impol is an element of negligence or fault and means some thing more than 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 to the word "default" should mean an act done in breach of a duty or in disregard of an order or direction."
However, as found above in the present case the appellant had failed to prove that he was prevented from depositing the dues for reasons which were beyond his control. In fact he did not deposit the arrears as he was contemplating that he would get the order stayed by the Appellate Court which in fact was granted but after he had committed default and incurred the liability. This case is therefore of no help to him.
13. The case of Qamar-uz-Zaman v. Sher Afzal, is distinguishable on facts for in that case it appears that the period for which default was committed by the tenant, he suffered from typhoid. But in the present case if appellant could file appeal during illness and I see no reason, why he could not deposit the arrears of rent and rent for November at least after leaving the hospital or through the Agency of his Advocate or some other person.
14. In Mst. Shah Jehan v. Mst. Mukti the definition of the word 'default' was considered and it was observed that the answer to the question of default would depend upon the circumstances of each case and would be answered in the light of the answer to the question whether the payment has not been mate because of some superior force over which the tenant had no control. There cannot be any dispute with the above observation. Indeed this case has been followed in letter and spirit in the present case and on the facts thereof it has been found that the default on the part of the Appellant was not for reasons beyond his control.
15. Abdul Majid v. Saeedudlah and another is a judgment of the Division Bench consisting of Sajjad Ahmad Jan and A. R. Khan, JJ. It was observed by their Lordships at page 20 of the report as follows:- "But to entitle the tenant to a condonation it seems imperative that he must without any available loss of time offer to make good the payment explaining at the same time the circumstances for the delay. In the present case, however, even accepting the allegations of the appellant regarding his illness we have no hesitation in holding that the default on his part was negligent if not wilful. If he had really fallen ill it should not have made him forget his obligation in respect of the case that he was fighting against the landlords to retain possession of the disputed premises and if he was prevented from attending the Court himself to deposit the arrears as directed by the Controller on the due date, he could easily have commissioned some one to do ,so. He could have easily got in touch with his counsel for the purpose."
' The above observations of' their Lordships of the Division Bench apply with full force to the present case and are complete answer to the plea raised by the appellant.
16. In Ghulam Muhammad v. Raj Begum, following the meaning of the word 'default' as given in Stroud's Judicial Dictionary it was observed that he (appellant) had not given any explanation whatsoever to show that he was prevented from complying with the order of the Court by some reason beyond his control. I fail to see how this case is of any help to the learned counsel.
17. These cannot be any dispute with the proposition that if a tenant is prevented from complying with the order for reasons beyond his control his defence under section 13(6) of the Ordinance cannot be struck off. Bu on the facts of this case it has been concurrently found by the Controller a well as the Additional District Judge that the appellant failed to show that it was beyond his control to deposit the arrears and the rent for the month of November, 1974 between 27th December and 3rd January, 1975.
Therefore, the cases cited by the learned Counsel for the appellant are either not relevant or distinguishable on facts or are against him.
18. As regards the next ground that the Controller had no jurisdiction to entertain the application under section 13 of the Ordinance, the submission is that the relationship between the parties being that of lessor and lessee a mentioned in the tenancy agreement and was governed by the provisions of the Transfer of Property Act and not by the provisions of the Ordinance.
19. This ground seems to be based on mis -appreciation of the provision of the Ordinance. If the parties come within the definition of 'Landlord and 'Tenant' as contained in clauses (c) and (d) of section 2 of the Ordinance and the house also falls within the meaning of 'Building' as defined I clause (a) ibid and the yearly tenancies are not beyond the pale of the Ordinance, then the relationship between the parties would be governed by the Ordinance notwithstanding the use of the words 'Lessor' and 'Lessee' in the Tenancy Agreement for it is the substance of the agreement which has got to be looked into and not merely the use of certain terms therein. It was not disputed before the Controller nor has it been disputed before me that the relationship of 'landlord' and 'tenant' as defined in the Ordinance existed between the parties. It is also not disputed that the house rented out to the appellant falls within the definition of the 'Building'. However, the submission is since the tenancy was yearly it was not governed by the Ordinance but by the provisions of the Transfer of Property Act.
20. This question directly came up for consideration in Shujauddin Qureshi v. Mst. Human Ara Begum wherein his Lordship Anwarul Hach J. (now a Judge of the Supreme Court of Pakistan) observed at page 306 of the report as follows :- "A detailed examination of the provisions of the Ordinance, which were described by the learned counsel for the appellant as unworkable in the case of yearly tenancies, clearly shows that this is not so. At the most some of the provisions may not be applicable in the case of yearly tenancies, but the main purpose of the Ordinance and all these provisions in particular is not defeated simply for that reason. The matter, however, does not rest there. I have already pointed out that considering the definitions given in the Ordinance and the scope of its application as indicated in subsection (2) of section 1 of the Ordinance, it is clear that the yearly tenancies are not excluded from its purview. Subsection (1) of section 13 of the Ordinance further makes it clear that a tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Ordinance, or otherwise, and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. This subsection, therefore, contains a clear prohibition against the enforcement of decrees of ejectment passed by civil Courts in respect of buildings or rented lands situated in the urban areas of West Pakistan, to which the Ordinance applies. I have already held that the building in the instant case is a building falling within the definition of that term as given in the Ordinance. The result, therefore, appears to me to be that whatever the nature of tenancy existing between the parties, the only means open to the landlord to eject the tenant is by an application to the Rent Controller under the terms of the Ordinance, and not otherwise. I, therefore, find no substance in the contention that yearly tenancies fall outside the purview of the Ordinance."
21. Some support can also be drawn from a Division Bench case of Peshawar High Court in Muhammad All Khan v. Nur Muhammad Khan wherein the question which came up for consideration of their Lordships was whether civil Court had jurisdiction to entertain a suit for possession and mesne profits after the expiry of the period of the lease of 20 years. In this connection their Lordships of the Division Bench after examining the provisions of the Ordinance observed at pages 77 and 78 of the report as follows :- "There is yet another aspect of the case which may also be mentioned. According to section 13 of the Ordinance, which we have reproduced in relevant parts, a landlord is entitled to seek the eviction of his tenant only upon the proof of one or more grounds mentioned therein and in our view this again amounts to considerable handship for the landlord for under the Transfer of Property Act he could evict his tenant simply by serving him the required notice. The fact that while enacting the Ordinance the Legislature was aware of the rights of a landlord under the Transfer of1 2 Property Act it is clear that the Legislature intended that the unfettered rights of the landlord should be curtailed and the corresponding rights of the tenant considerably enlarged. The Ordinance being in the nature of special legislation would have to be given preference in those cases in which the eviction of a tenant is sought by his landlord and this notwithstanding that thereby the landlord would be subjected to hardship or additional burden.
14. The suit filed by the respondent in the civil Court appears to us to be incompetent for another reason. The appellants admittedly continued to be the tenants of the disputed premises up to 31- 3-1965 in view of the lease deed executed between Mana Sing and late Dost Muhammad Khan, the father of the respondent, and the question is if after the expiry of the lease period they can be said to have become trespassers so as to sustain the claim of the respondent for mesne profits and the demolition of structures ? The answer to this question would be found in section 2(i) and section 13(1) of the Ordinance by virtue whereof the appellants would continue to be the tenants of the premises notwithstanding the expiry of the original lease period. In other words the very cause of action upon which suit was filed against them by the respondent was wholly imaginary inasmuch as their tenancy could not have been terminated by serving on them simple notice in terms of the Transfer of Property Act nor could they be ejected from the premises unless proceedings were instituted against them in the Court of Rent Controller upon one of the grounds mentioned in section 13 of the Ordinance.
15. The upshot of the whole discussion is that notwithstanding the expiry of the original lease period of 20 years the appellants continued to be the tenants of the disputed premises by virtue of sections 2 (1) and 13 of the Ordinance. In these circumstances the only relief which the respondent could have sought against the appellant would be their ejectment under section 13 of the Ordinance and for that purpose their remedy lay in the Court of Controller and not the civil Court.
22. I can do no better than to follow the reasoning in the two cited cases and hold that notwithstanding that the tenancy was for one year, and was renewed from year to year, the relationship between the parties was governed by the Ordinance and if the respondent wanted the eviction of the appellant for non-payment of rent or infringement of any conditions or terms on which the house was held he could proceed only in accordance with the provisions of the Ordinance.
23. As regards the third ground that respondent had no cause of action when he filed the application on 29-4-1974 or the same was premature I am state that this pertains to the defence of the appellant which has been struck off and is, therefore, not available in respect of the order impugned in this appeal. Even, otherwise, when the application was filed on 29-4-1974 the rent for the months of November, December, 1973 and January and February, 1974 if not also for March, 1974 had already become due in accordance with the provisions of the Ordinance for even if the condition to pay rent in advance was not enforceable the liability to pay rent in accordance with the provisions of the Ordinance could not be postponed till the end of the year. Further, when the Controller passed the order on 22-11-1974, the one year period had already expired and the rent for the entire year had already become due under the law. Even the rent for the month of November, 1974 which was beyond the period of tenancy agreement and the payment whereof was simply governed by the provisions of section 13(6) of the Ordinance was not paid on or before the due date. I therefore, find no substance in this ground also and overrule the same.
24. In the result, I hereby dismiss the appeal with costs. However, I allow the appellant one month for putting the respondent in possession of the house. PLD 1964 Lah. 292 PLD 1972 Pesh. 661 2