MCHDI ZAFAR Versus FAUZIA RAQUECB

This First Rent Appeal under section 23 (1) of the Cantonments Rent Restriction Act, 1963, is directed against the order dated 3rd September, 1988 of Additional Controller of Rents, whereby he has struck off the defence of the appellant Mehdi Zafar and directed him to handover the vacant possession of the premises to the respondent within one month from the date of the order.

2. The facts are that rent case under section 17 of the Cantonments Rent Restriction Act, 1963 was filed by respondent Mst. Fouzia Raqueeb against appellant Mehdi Zafar on the ground of default. During the pendency of the rent case an order under section 17 (8) of the Cantonment Rent Restriction Act was July, 1987 to November, 1987 @ Rs. 4,000 amounting to Rs. 20,000 within 15 days of the order. The appellant was further directed to start depositing future monthly rent @ Rs. 4,000 per month before each 5th day of the following months for which the rent becomes due beginning from December, 1987. The application under section 17 (9) of the said Act was moved and the impugned order has been passed.

3. I have heard Mr. Syed Ali Ahmed Tariq, Advocate for the appellant. It is argued that appellant has not committed wilful default, but due to circumstances beyond his control, there is some delay in depositing the rent for the month of May, 1984. He has referred to 1985 CLC 1945, PLD 1983 Kar. 192, PLD' 1966 (W.P.) Pesh. 119 and 1988 CLC 1073.

Mr. Syed Amjad Hussain, appearing for the respondent, has submitted that according to the tentative rent order, appellant was bound to deposit future monthly rent before 5th of each month, but he has failed to deposit rent of March, 1988, April, 1988, May, 1988 and June, 1988 on the specified dates, therefore, he is liable to be evicted. He has referred to the cases reported in 1984 CLC 2443 and PLD 1974 SC 530.

4. The order of the Additional Controller of rents has been complied with to the extent that rent was being deposited regularly. In the order passed under section 17 (8), the appellant was directed to deposit arrears within 15 days, which he deposited and was further directed to deposit future rent before 5th of the month on which rent was due. The appellant after the tentative rent order deposited the rent of December, 1987 on 4-1-1988, rent of January, 1988 on 4-2?1988 and of February, 1988 on 3-3-1988. Thereafter the rent for the months of March, April, and June respectively was deposited on 5-4-1988, 5-5-1988 and 5-7-1988 and according to the order of the Rent Controller, the rent was supposed to be deposited before 5th. There is a delay of one day only in depositing the rent. The contention of the learned counsel for the appellant is that according to the lease agreement the rent was to be paid to the landlord on every 5th of English Calendar month regularly, therefore, there was a presumption that rent was to be deposited on 5th of the month. With regard to the rent of May, 1988, which was deposited on 12-6-1988, the objections were filed in which the appellant stated that on 1st of June, 1988, the appellant's wife alongwith 2 children left Pakistan for Hungary and in her absence the appellant suddenly had become a victim of Typhoid and was confined to bed from 4-6-1988. He was so sick therefore, he could not pay and there was no other family member. He produced prescriptions of the Doctor and such certificates alongwith photo copy of Passport etc. showing that this wife and children left Pakistan.

In case of Qamar Zaman v. Sher Afzal reported in PLD 1966 (W.P.) Pesh. 119, it has been held that default occurring on 13-6-1965 rxreans the default, which was made wilfully or negligently. In this case default was dus to serious illness of the appellant and the facts of the present case are identical. In case of Masood Ahmed Khawaja v. Ismat Begum reported in 1985 CLC 1945, it has been held that each case of default is to be seen with reference to the facts and circumstances of that case. Finally, it was held that default was not wilful as such the order of the Rent Controller was set aside. The facts of the case reported in 1984 CLC 2443 are different and the case is distiguinshable. In that case adjustment was claimed. In case reported in S.C. case referred, there was one day's. delay in depositing the rent, which was condoned.

5. The arrears were deposited and rent of 3 months was deposited on 5th of each month, which according to the tentative order was required to be deposited on 4th. This is a technical delay. Not only this, but even otherwise according to the lease agreement, the appellant could tender the rent to the respondent on 5th of every month and about the rent of May, 1988, there is sufficient explanation on the part of the appellant. On this I refer to a case of Ghulam Rasool Bhatti v. Additional District Judge reported in NLR 1988 Civil 476. More over the order of the Rent Controller is not a speaking order. He has not given the reason for discarding the explanation given by the appellant.

For the reasons stated above, I am of the view that appellant has not committed wilful default in payment of rent. There is only technical default in this case for depositing the future rent by delay of one day and 7 days. I, therefore, set aside the impugned order and allow the appeal. The Rent Controller is directed to proceed with this case according to law.

H.B.T./M-810/K

Appeal allowed.