JACOB JEHANGIR Versus NAIMA SIDDIQUI

This is an Appeal under section 24(1) of the Cantonment Rent Restriction Act, 1963 as amended vide Ordinance IX of 1985 (hereinafter referred to as "the Act"), against the Order dated 1‑12‑1986 passed by the Additional Controller of Rent Clifton Cantonment, Karachi, in Rent Case No. 27/86, whereby defence of the appellant was struck off and the appellant was directed to vacate the premises in question within two months from the date of the order.

2. The facts giving rise to the appeal, briefly stated, are that respondent landlord, on 18‑5‑1986, filed an application for ejectment under Section 17(1) of the said Act against the appellant on the ground of default and personal requirement. It was, inter alla, alleged that the opponent, having failed to pay rent with effect from 1‑6‑1985, was in arrears of Rs.5,500 being the amount of rent for the period from 1‑6‑1985 to 30‑4‑1986, for a total period of eleven months.

3. The appellant, in response to notice appeared and filed his written statement on 5‑6‑1986. The matter was then set down for filing rent account. The parties accordingly filed their respective rent accounts and the matter was adjourned to 1‑9‑1986 at 9.30 A. M. , for settlement of rent account and issues. On 1‑9‑1986 the case was called at 10.00 A.M. , but none was present on behalf of the appellant. However, an order for deposit of arrears as well as future rent was passed by the learned Rent Controller, whereby the appellant was ordered to deposit arrears of rent amounting to Rs.7,500 within one week and future rent at Rs.500 per month on 5th day of the following month the rent becomes due. An application under Section 17(9) was moved by the respondent on 23‑9‑1986 for striking off the defence of the appellant. The appellant filed his objections to the said application on 11‑10‑1986. A re‑joinder to the same was filed by the respondent on 22‑10‑1986. After hearing the arguments, the learned Controller allowed the application by his order dated 1‑12‑1986, striking off the defence of the appellant and ordering him to vacate the premises within two months.

4. Mr. Zahid Marghoob, learned counsel for the appellant challenging the said order has raised the following contentions:‑

(i) The impugned order having been passed ex parte and in early hours of the day is against the principles of natural justice.

(ii) The appellant had no knowledge about the passing of the order till 26‑9‑1986 when he came to know of it through a letter received from his advocate. The default, therefore, was not wilful.

(iii) The order dated 1‑9‑1986 was passed without considering the material on record inasmuch as the learned Controller failed to consider that a sum of Rs.5,000 was lying in deposit with the respondent which was liable to be adjusted in the arrears of rent. The order was, therefore, factually incorrect as the said amount of Rs.5,000 was not adjusted in the arrears of rent. The order dated 1‑9‑1986 was thus passed in violation of the provision of Section 17(8) of the Act.

5. In support of the above submissions learned counsel for the appellant placed reliance on the following cases:‑

(i) Mrs. Anwar Fatima and 2 others v. Miss Azizi Begum and 7 others 1981 S C M R 119. In this case the Hon'ble Supreme Court observed that:‑

"It is well‑settled that any order passed on the back of a person, without affording him an opportunity of hearing, would be without jurisdiction and of no legal effect."

(ii) Muhammad Yasin v. Jalil Ahmad Siddiqui N L R 1981 A C 327:

In this case, it was held by a learned Single Judge of this Court that the rent order dated 2‑1‑1974 was liable to be set aside as the same was passed at the back of the appellant and the advocate and further the same was not factually correct. In this case rate of rent was disputed.

(iii) Mohammad Yousaf v. Abdullah P L D 1980 S C 298: It was a case under Section 13(2) of West Pakistan Urban Rent Restriction Ordinance VI of 1959. In this case the Hon'ble Supreme Court held that even on the footing that the appellant was in technical default in the payment of rent on the date of the eviction application filed against him, discretion was exercised in his favour as the same can be adjusted from the amount of security deposit lying with the landlord under the agreement of tenancy which had expired.

(iv) Mustafa Hussain Siddiqui v. Malik Islam Akbar 1984 C L C 2869: It was a case under Section 15(2) of Sind Rented Premises Ordinance XVII of 1979. In this case, a learned Single Judge of this Court held that when no period is provided in the agreement of tenancy, the same being executed on Rs.4 stamp paper and being unregistered should not be taken to be an agreement for one year or more. The said agreement at best can be treated as an agreement of lease for a period of less than one year.

(v) Muhammad Khawaja v. Abdul Samad Sirajuddin 1988 C L C 1517: It was also a case under Section 15(2) of the Sind Premises Ordinance XVII of 1979. In this case a learned Single Judge of this Court held that:‑

"On expiry of period of 11 months (period shown in the tenancy agreement) security deposit by tenant with landlord is liable to be refunded. Position of landlord becomes that of a debtor for purpose of payment of the said amount, and rent due to him could be adjusted against amount of security."

(vi) Abdul Hameed v. Muhammad Islam Siddiqui 1987 S C M R 580: In this case, the petition had arisen out of an order passed under Section 16(2) of the Sind Rented Premises Ordinance, 1979. The Hon'ble Supreme Court referred to the Nazir's report relating to payment in respect of both the shops and seems to be impressed by the fact that the rent had already been deposited by two separate receipts. Leave was thus granted.

(vii) Inavat Ullah v. Zahoor‑ud‑Din 1987 S C M R 1313: The appeal arose out of a judgment under section 1(2) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. In this case the Hon'ble Supreme Court agreed with the view of the High Court ~of Lahore that the landlord deliberately created difficulties in the way of tenant by not accepting the rent. However, the tenant on refusal to receive the rent adopted the mode of tendering the rent by way of depositing the same with the Rent Controller consistently. Thus, the conduct of the tenant indicated no element of negligence on his part. The appeal in the Supreme Court was thus dismissed.

6. On the other hand, Mr. Ismail Kassam learned counsel for the respondent cited the following cases:‑

(i) Sheikh Fazal Din v. Dawoodur Rehman 1983 C L C 470.‑ It is a judgment under section 13(6) of West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by a learned Single Judge of this Court. In this case, plea was taken by the tenant that his advocate did not inform him about the rent order passed by the learned Rent Controller and as soon as he came to know of this he deposited the rent in Court and so the default was not wilful. This plea was not accepted by the Rent Controller as well as the first appellate authority. The orders of two Courts below were not interfered with by a learned Single Judge of this Court in Second Appeal.

(ii) Mirza Abdul Aziz Beg v. Mushtaq Ahmad Shaikh 1980 SCMR 834: It was a case under Section 13(2) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. The Hon'ble Supreme Court agreeing with the order of the lower Court for not having exercised its discretion in favour of the tenant was of the view that such discretion was neither based on irrelevant consideration, nor erroneous or perverse and as such it declined to interfere with it.

(iii) Faizul Hasan Sheikh v. Anzar Ahmad Siddiqui P L D 1985 Kar.43: It was a case of default under Section 13(2) of the West Pakistan Ordinance V I of 1959. While deciding the appeal reliance was placed by me on Mirza Abdul Aziz Beg v. Mushtaq Ahmad Siddiqui wherein the Hon'ble Supreme Court had observed that the deposit was by way of security against the tenant's liability for damage, if any, to the demised premises. As such it was held by me that the security deposit was not adjustable against the rent due from him, as the security deposit was meant, inter alla, for damages caused to the premises.

(vi) S. Ghous Mohiuddin v Mehboob Ali Khan 1985 C L C 2098: It was a case under Section 16(2). In the Judgment on appeal it was observed by me that the tenant's defence is liable to be struck off in case the tenant fails to comply with the direction contained in the tentative order for deposit of rent for which he has given no explanation. For that view reliance was placed by me on Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan P L D 1983 S C 1.

(iv) Naqvi & Co. v. Haji Abdul Aziz 1985 C L C 1032: It was a case under section 15(2) of the Sind Rented Premises Ordinance XVII of 1979 wherein it was held by a learned Single Judge of this Court that the tenant was not entitled to adjustment of rent from security deposit in the circumstances of the case.

(v) Zia Ullah Shah v . Syed Riaz Ahmad 1981 S C M R 538: It is a case under Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance VI of 1959. It was held by the Hon'ble Supreme Court that the tenant failing to comply with the order under Section 13(6) is forbidden to contest proceedings and his defence is liable to be struck off.

(vi) Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan P L D 1983 S C 1: It was a case under Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959). It was held by the Hon'ble Supreme Court that the Rent Controller was not required to determine quantum or rate of rent finally, if the same is dispute. He is required to determine such amount approximately. The relevant para reads as under:‑

"In the premises the consequence of non‑compliance of such approximate determination is the summary disposal of the case, without taking further proceedings, ipso facto on the basis of such non‑compliance by striking off the defence and passing the order of eviction."

6. Now, dealing with contention No. 1 that the order dated 1‑9‑1986 passed ex parte and in early hours of the day was against the principles of natural justice, is without any substance. The matter was fixed in presence of the appellant's counsel for 1‑9‑1986 at 9‑30 a.m. for settlement of rent account. It cannot, therefore, be said that the appellant had no knowledge of it. If he chose to remain absent on that day and time, it cannot be said that any principal of natural justice has been violated for passing an order on the day and time fixed in the case in the absence of the appellant. The appellant has not at all given any reason for failure to appear on 1‑9‑1986. The objection that the order was passed at 10.00 O'clock which, according to him, is an early hour of the day, is also of no avail to him. It is not the case of the appellant that he appeared in the Court on that day at later hour of the day and found that the order had already been passed. In fact, the appellant and his counsel failed to appear in the Court not only on that day, but also on subsequent day of hearing viz. 21‑9‑1986 and 5‑10‑1986. On 11‑10‑1986 another advocate putting appearance at 12:30 p.m., when the case had been called out second time, filed his power on behalf of the appellant, in response to a notice issued by the Court on respondents' application under Section 17(9) of the Act, for striking off appellant's defence. The submission of the counsel that only one week's time allowed by the Court for depositing of arrears was insufficient, too, merits no consideration as the plea that the said amount of Rs.7,500 could not be deposited due to paucity of funds, was neither taken before the learned Rent Controller nor in the Memo of Appeal and thus deserves no consideration. 1981 S C M R 119 as relied upon by the learned counsel has, no application to the facts of the present case. No. principle of natural justice has at all been violated in the case before me.

7. The second contention that the appellant had no knowledge about the passing of the order dated 1‑9‑1986 till 26‑9‑1986, when he came to know of it through a letter received from his advocate, is also devoid of force, because he neither made any application for condonation of delay, nor deposited any amount of arrears thereafter. Even otherwise, the negligence of the advocate in informing him of the order passed on 1‑9‑1986 for depositing of rent will be of n t consequence in the case, as it is not the case of the appellant that immediately on receipt of information from his advocate, he rushed t the Court and deposited the rent and applied for condonation of delay. Learned counsel for the respondent has placed his reliance on the case reported as Shaikh Fazaldin v. Dawoodur Rehman 1983 CL C 470. In this case, the tenant had deposited the rent in Court as` soon as he came to know through his advocate. It was observed by a learned Single Judge of this Court that "The explanation offered by the appellant was considered by the two Courts below and rejected on cogent reasoning and, therefore, I find no reason to interfere with the same in second appeal". The question of negligence was also considered by a D.B. of this Court of which I was a member, in the case reported as Joint Secretary, Ministry of Religious and Minority Affairs and 2 others v. Mobina Begum 1985 C L C 231 wherein after discussing the case‑law on the question of negligence of a counsel as well as the party it was observed by me as under:‑

"24. We are of the firm view that it is the responsibility of the party as well as its counsel to look after the case and take proper steps in the proceedings. The responsibility of the Advocate is still heavier inasmuch as he owes a duty to the Court also to help in the administration of justice. If the Advocate is found to be at fault which, in the circumstances of the case is inexcusable, the party cannot normally take shelter behind its Advocate. In a case where parties as well as Advocates both are found to be negligent in the pursuit of the matter in a Court of Law, the restoration of the case dismissed for default or setting aside ex parte decree even payment of costs will not meet the ends of justice. On the contrary, it will amount to putting premium on the default or negligence of the Advocate and the party. We may here refer to the age old dictum that 'law helps the vigilant and not the indolent'. Had it been a case of simple absence of the party or his Advocate on a single date as a consequence whereof an ex parte decree was passed the matter would have attracted sympathy from us. But in this case we find a series of wilful omissions and complete indolence on the part of the appellants, having not cared to know about the case by not even writing a single line to the Advocate as to the progress in the case in spite of the receipt of repeated notice/summons from this Court. The appellants, in the circumstances of the case have been grossly negligent.

25. As to the conduct of Mr. S. Azizul, Hassan Advocate for the appellants we feel that he had been equally negligent to conduct the case."

I may further refer to a decision of the Supreme Court reported as Zulfiqar Ali v . Lal Din and another 1974 S C M R 162 wherein it was observed by the Hon'ble Supreme Court that:‑

"The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel who was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side."

8. As regards the third contention that order dated 1‑9‑1986 was passed without consideration of the material on record inasmuch as the learned Controller failed to take into account the amount of Rs.5,000 lying in deposit with the respondent, the question, firstly, arises whether it was an admitted amount? It is true that the appellant had stated in the written statement that Rs.10,000 was paid to the respondent, half as advance and half as deposit but, neither the agreement of tenancy was filed by the appellant nor any receipt for the same was placed on record. Nor it was mentioned in the rent account submitted by the appellant. There was also no admission of the respondent on the record as to the receipt of deposit. There was no material on record to disclose the condition of deposit whether it was for adjustment in rent due or it was a security against damage to the property. The learned Rent Controller was, therefore, justified in not taking the said amount of Rs.5,000 into account or any other amount alleged in the written statement as there was no admission of the respondent or any prima facie evidence to that effect. The question of adjustment of deposit of Rs.5,000 did not, therefore, arise in the case before the learned Controller while passing the order dated 1‑9‑1986. The said order therefore, cannot be attacked as factually incorrect. The case reported in N L R 1981 A C 327 relied on by the appellant's counsel is thus distinguishable. For the sake of argument, even if the question of deposit is considered to be adjustable in the arrears of rent, the order dated 1‑9‑1986 determines the arrears of rent to be Rs.7,500. After adjusting the alleged amount of Rs.5,000 the amount remaining due is Rs.2,500 which, to show the bona fide of the appellants, ought to have been deposited soon after coming to know of the order for depositing of rent. Admittedly not a single penny was deposited towards the arrears till today. It is conceded by the counsel for the appellant that it was only in October, 1986 that one month's rent for September, as future rent, was deposited in Court. The cases relied on by the appellant's counsel on the question of adjustment of deposit as reported in P L D 1983 S C 298 and 1986 C L C 1517 (supra) have no application to the facts of the instant case as the deposits were admitted in both these cases and they were adjusted at the time of final hearing. On the other hand, the case reported in 1985 C L C 2098, P L D 1983 S C 1 and 1981 SCMR 538 as cited by the respondents counsel, go to support his case and are relied on by me for the dismissal of the appeal.

9. For the reasons discussed above, I am of the considered views that the non‑compliance of order dated 1‑9‑1986 passed by the learned Controller directing the appellant to deposit rent was deliberate on the part of the appellant. It cannot at all be said, in the circumstances I of the case, that the default or non‑compliance of the said order was beyond his control. The appeal is, therefore, dismissed. The appellant, is, however, given two months' time to vacate the premises, subject to his depositing the rent regularly. In case, the premises is not vacated within two months he will be liable to be ejected without notice.

These are the reasons of my short order, dismissing the above appeal on 24‑9‑1987.

A.A. /J‑32/ K Appeal dismissed