HAYAT ALI vs Miss AZ1ZA MAHMOOD

ORDER

1. ' MOHAMMAD HALEEM, J.-The petitioner seeks special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 13th of March, 1979, by which S. A.

0. No, 594 of 1978, was dismissed.

2. ' The respondent sued for the ejectment of the petitioner from bungalow No, 21 (B portion), situate in Satellite Town, Rawalpindi, on the grounds inter alia of default in the payment of rent. By order dated 16th of June, 1977, the Rent Controller directed the petitioner to deposit the arrears of rent amounting to Rs, 10,800 before the 16th of June, 1977, and future rent before the specified date as provided in the relevant section. It appears that the petitioner failed to fulfil the direction in regard to the deposit of the arrears of rent and instead filed an application on 16th of June, 1977, for extension of time for such deposit as he was confined to bed on account of illness from 11th June, 1977, to 16th of June, 1977, which request was acceded to and the delay was condoned by order dated 25th of June, 1977. As the arrear had been deposited in the meantime, the learned Rent Controller was led to believe that the petitioner had not intentionally avoided to deposit the same as earlier directed.

3. ' Against this order the respondent preferred an appeal to the District Judge, Rawalpindi, who ordered the petitioner to be ejected. The Appellate Court held that the petitioner was negligent in not depositing the arrears of rent and also the future rent ; and that illness was not such as could have prevented him from performing his legal obligation. It further held that the date could not have been extended and in the circumstances the Rent Controller had no option but to strike of his defence. Lastly, the appellate Court rejected the objection as to the maintainability of the appeal ; and for this conclusion it relied on Rana Zahid Ali Khan v. Ehsan Elahi (1) and Fazal Ahmad v. Rana Muhammad Ali (2).

4. ' The petitioner went in second appeal to the Lahore High Court but did not succeed as he failed to pursuade the High Court that the appeal was incompetent ; and for this submission the petitioner relied on Ibrahim v. Muhammad Hussain (3). The High Court distinguished it on the short ground that it related to an order under the first part of subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance whereas the order under appeal was made under the second part of the subsection which was appealable in view of the consistent opinion expressed by the Lahore High Court in Rana Zahid Ali Khan v. Ehsan Elahi (4) and the High Court of Sind in Mst. Fatima Bai v. Mst. Fatima Begum (5).

5. In seeking leave to appeal the learned counsel for the petitioner contends that the impugned order of the Rent Controller is not determinative in the sense that it finally decides the controversy. This necessarily involves the consideration as to the nature and scope of the order passed under the second part of the subsection keeping in view the meaning of the word 'default' occurring therein.

6. As held in Ghulam Muhammad Khan Londkhor v. Safdar All (6), in every case of non-compliance the question A arises as to whether the default is avoidable or not. If it is avoidable then it cannot excuse non-compliance and the mandatory consequence follows that is, the striking off the defence. Again, if the default is unavoidable then the non-compliance is excusable in which case the Rent Controller can condone the non-performance of the direction. In assessing whether there is default or not the Rent Controller has to consider the explanation resting

(1) PLD 1977 Lah. 538

(2) PLD 1978 Lah.1032

(3) PLD 1975 SC 457

(4) PLD 1977 Lah.538

(5) PLD 1977 Kar. 1007

(6) PLD 1967 SC 530 ' on facts and in a given case his decision might be erroneous. If he holds against the tenant, the order, beyond doubt, is final as it leads to his ejectment. As such, this order is appealable ; and again it is for the appellate Court to judge as to whether the Rent Controller was right in holding that the tenant was guilty of default ; and if he is not so held, he is absolved of the consequence of default. Vice versa if the Rent Controller decides against the landlord, can it then be said that such an order is not appealable howsoever erroneous it may be as it does not conclude the proceedings ? This would mean putting a premium on the right of the landlord to have the legality of the order determined in appeal, for, in that eventuality it may be that the appellate Court might come to a contrary conclusion and hold the default to have been proved, in which case his defence will be struck off. In either case there has to be an application o mind to the question of default which culminates in the passing of an order for the striking off the defence or the condonation of the non-compliance. The former leads to the ejectment of the tenant while the latter condone the default. But what is pivotal is that it concludes the controversy presented by the second part of the subsection. Accordingly, both the orders are to be treated at par in determining their nature, for, if they are reviewed in appeal, vice versa conclusion can follow which gives to it finality. On this view of the matter the High Court was correct in holding that the appeal was competent on the view taken in Rana Zahid Ali Khan v. Ehsan Elahi and Mst. Fatima Bai v. Mst.

7. Fatima Begum which we approve.

8. ' Accordingly, the petition has no substance and is dismissed. The petitioner is, however, allowed three months time to vacate the premises subject to the payment of rent.