NIAZSONS Versus S.M. YOUNUS

The question that has been raised in this appeal filed under section 21 of the Sindh Rented Premises Ordinance, 1979, relates to the interpretation of section 16 of the Ordinance.

2. On 7‑2‑1983 the respondents filed an application under section 15 of the Sindh Rented Premises Ordinance, 1979, against the appellants seeking their ejectment from the disputed premises solely on the ground of subletting. On 19‑4‑1984 the respondents made an application before the Rent Controller under section 16(1) of the Sindh Rented Premises Ordinance, 1979, with a prayer that the appellant No.1 may be directed to deposit monthly rent due before 10th of each calendar month till the disposal of the case. On 21‑5‑1984 the Rent Controller passed the following consent order: ‑‑

"Heard the learned counsel for the parties. The applicants claim rent at the rate of Rs.690.92 p.m. from April 1984, which is admitted by the opponent. However, the rent for the month of April may be deposited a with the Nazir of this Court by 31st May, 1984 and future rent at the same rate on or before 10th of every subsequent month until further orders."

3. The appellant No.l deposited the rent regularly till March, 1989, but failed to deposit the rent for the month of April, 1989 on or before 10th May, 1989, which was in fact deposited on 6‑6‑1989. Accordingly on 10‑8‑1989 the respondents filed an application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, with a prayer that the defence of the tenant be struck off. The appellants contested this application by filing objections. The default in compliance with the order of Rent Controller was admitted but it was pleaded that it occurred due to bona fide mistake of the clerk. On 7‑2‑1991 the Rent Controller struck off the defence of the appellants directing them to vacate the demised premises within a period of four months. It is in these circumstances that the present appeal has been filed.

4. I have heard Mr. Naeem Ahmad, learned counsel for appellants and Mr. Muhammad Ali Jan, learned counsel for respondents.

5. The learned counsel for the appellants has referred to several points but eventually confined his arguments in the main to the following contentions: ‑‑

(i) That the application for ejectment was filed by respondents on the ground of subletting alone and consequently there was no occasion for the Rent Controller. to have passed an order under section 16(1) of the Sindh Rented Premises Ordinance, 1979

(ii) That there were no arrears at the time when the application under section 16(1) of the Sindh Rented Premises Ordinance, 1979, was made and, therefore, the order for deposit of monthly rent due alone was not justified.

(iii) That the default, if any, was not intentional and it occurred due to clerical mistake which could be condoned.

6. On the first two questions whether the order passed under section 16(1) of the Sindh Rented Premises Ordinance, 1979, was improper, the learned counsel for the appellants has very little to say. Subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, where under the tenant was called upon to deposit monthly rent due provided as follows: ‑‑

"16. Arrears of rent .‑‑(1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on before the tenth of every month, until final disposal of the case."

7. If we analyse and break up the provisions enacted under subsection of section 16 of the Sindh Rented Premises Ordinance, 1979, it will be clear that structurally it is divisible into three parts, namely: ‑‑

(i) where a case for eviction of the tenant has been filed (on any grounds);

(ii) the Controller shall, on the application by the landlord and after such summary inquiry as he deems fit to make, determine the arrears of rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf; and

(iii) further direct the tenant to deposit monthly rent regularly on or before the tenth of every month, until final disposal of the case.

8. A bare reading of the opening sentence, viz., `where a case for eviction of the tenant has been filed', would show that an exercise in terms of subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, is A to be made in every case of eviction filed by the landlord irrespective of the grounds taken therefor. The learned counsel for the appellants asks me to put a restricted interpretation upon the language of subsection (1) of section 16 of the Sindh Rented Premises Ordinance, 1979, but I consider it must of necessity be construed in a more wider sense and the context is which the words `where a case for eviction of the tenant has been filed' occur justifies me in widening their meaning.

9. It is also apparent that the directions for deposit of arrears of rent and for deposit of future rent are independent to each other and if there are no arrears at the time of passing an order under subsection (1) of section 16 of the Sindh Rented Premises Ordinacne, 1979, there is no legal embargo for not 8 passing an order for the deposit of future rent alone. In the present case the tenant was in arrears for one month at the time of passing order and he was directed to deposit the same by 31st May, 1984. No exception can, therefore, be taken to the order, dated 21‑5‑1984 passed by the Rent Controller.. The cases reported as Moula Bux Bhutto v. Muhammad Hussain 1983 C L C 277, Syed Khadim Hussain Abedi v. Mst. Geti Ara Begum 1984 C L C 68 and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi 1986 M L D 2980, which are cited on behalf of appellants have, therefore, no application to the facts of the present case.

10. It is the third contention urged by‑ Mr. Naeem Ahmad, learned counsel for the appellants that has some importance. The default in compliance with the order of Rent Controller for the month of April, 1989 is not in dispute. It was, however, pleaded that the default occurred due to bona fide clerical mistake and since there was no element of contumacious or deliberate disobedience of the order of Rent Controller, the default ought to have been condoned. The learned counsel for the appellants has referred me to a wealth of case‑law commencing from 1965 down to 1986 in support of the above contention. The first of these cases is the case of Syed Masood Hussain and others v. Muhammad Saeed Khan and others reported in P L D 1965 Lah. 11, followed by the cases of Visumal Chatumal Khilnani v. Ali Bakhsh and others reported in P L D 1968 Kar. 521, Fazal Haque v. Abdul Latif Akhund reported in P L D 1975 Kar. 681, Muhammad Siddique v. Abdul Karim and 8 others reported in 1983 C L C 913, Sirajuddin v. Abdul Hamid reported in 1983 C L C 2096, Muhammad Amin v. Mst. Nasim Begum and 2 others reported in 1984 C L C 1745 and Syed Muhammad Rashid v. Fakhruddin, reported in 1986 M L D 1662. These cases certainly appear to lend some colour to the above contention. This question was also considered by a Full Bench of the Supreme Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali, reported in P L D 1967 SC 530, wherein it was observed: ‑‑

"Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit but also to co‑relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his right under the law (vide Maxwell page 285, 11th Edition). Applying this principle in the present case the only interpretation that can be given to the provisions of subsection (6) of section 13 of the Ordinance is that its words are mandatory and the Court has no further discretion left in the matter, for, the tenant cannot be entitled to more than what the meanings of the words clearly import. But this does not mean that the Court is powerless to give a correct meaning to the words default' used in this subsection. It will still be necessary for the Court to decide in each case as to whether there has, in fact, been a default. All the decisions, which have been cited, also show that the only thing that the Courts have purported to do in cases of this nature is to determine the true scope and meaning of the word `default' and to see whether such default has in fact been committed."

11. While interpreting the word `default' their Lordships of the Supreme Court further held: ‑‑

"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 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 the word `default' should mean an act done in breach of a duty or in disregard of an order or direction."

12. In the case of M. Nazir v. S. Shaukat Ali reported in 1982 S C M R 985, the default in payment of rent by one day was not condoned by the Supreme Court. I cannot do better than quoting the weighty observations made in the above case in extenso: ‑‑

"Ch. Muhammad Hussain, the learned counsel for the petitioner has not disputed that the petitioner has defaulted in the payment of rent by one day. Instead of depositing the rent for the month of September, 1976 on 14‑10‑1976 he deposited it on 15‑10‑1976. Thus, there was a delay of one day in the deposit of rent. The learned counsel has urged that the wife of the appellant was ill and, therefore, he failed to deposit the money in time. According to him there was no wilful default and it should be condoned. He relied on Abdul Majid v. Saadullah P L D 1963 Quetta 16.

We have full sympathy with the petitioner but the view of this Court in Ansari Brother v. Holy Trinity Church Trust P L D 1971 SC 700 is that the Rent Controller has no power to condone the delay under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959. In that view of the matter, no relief can be granted to the petitioner. The petition is dismissed. We would, however, grant four months' time to the petitioner to vacate the premises, in dispute."

13. The same view was followed by the Supreme Court in the case of Muhammad Anwer through his legal representative v. Abdul Shakoor reported in 1982 S C M R 1120, wherein it was observed that where the default in payment of rent is admitted, the Rent Controller is left with no other option, but to strike off the defence of the appellant.

14. The question of default in compliance with the order of the Rent Controller was further examined in the case of Irshad Hussain (through his heirs) v. Abdur Rehman Kazi reported in 1983 S C M R 471, in which the failure of tenant in depositing rent was sought to be condoned on the ground of illness, and in. that context their Lordships of the Supreme Court observed as follows: ‑‑

"After hearing the learned counsel at some length, we are satisfied that the disease of the petitioner was not of such incapacitating type that the failure to deposit was absolutely inevitable/unavoidable and beyond the control of the tenant, and, further that he was, in all circumstances, unable‑to arrange the deposit through anyone else. The learned Single Judge of the High Court, while allowing the respondent's appeal, has followed the principles laid down by this Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali P L D 1967 SC 530, which would apply to the cases of illness also. The impugned judgment thus being unexceptionable, this petition is dismissed."

15. The cases of Messrs Crescent Publicity Service v. S.M. Younus and others reported in 1980 S C M R 779, Muhammad Hassan Khan and others v. Mirza Abdul Hamid reported in 1981 S C M R 799, Mst. Akhtar Jehan Begum and 4 others v. Muhammad Azam Khan reported in P L D 1983 SC 1, Messrs Asmat Agencies v. Messrs Shaikh Yusufally Sons Ltd. reported in 1983 C L C 2088, Rustamji Dinshaw Sachinwala v. Muhammad Ibrahim reported in 1984 C L C 258, Islam Riffat Siddiqui v. Mahmood Abid Rizvi, reported in 1984 C L C 1341, Nazir Ahmad v. Holaram reported in 1985 C L C 41, Ghulam Hussain v. Mst. Roshan Bibi report in 1986 S C M R 1714, Muhammad Yousuf v. Muhammad Bashir and others reported in 1990 S C M R 557,.Mst. Shah Jahan v. Muhammad Rafique reported in 1990 C L C 2012 and Mst. Nasira Sultana v. Sultan M. Ahmed and another reported in 1991 C L C 527 also support this view.

16. The trend of these authorities indubitably leads to the following conclusions as settled propositions of law: ‑‑

(i) Once default in deposit of arrears of rent or monthly rent is admitted or proved and the tenant is found to be negligent, the Rent Controller is left with no other option but to strike off his defence.

(ii) The default being purely a relative term just like negligence would embrace every failure by the defendant to perform his obligation unless prevented by superior force over which he has no control.

17. In deciding this important question it is necessary to look at the ground of default sought to be condoned on behalf of the appellants. According to the appellants the default for one month occurred due to bona fide clerical mistake. There is, however, nothing on record to substantiate it. This plea is not sustainable for the following reasons: ‑‑

(i) The appellants did not come forward immediately to justify this default.

(ii) The affidavit of the concerned clerk responsible for this default was not filed to justify the default.

(iii) No documentary evidence, like accounts books, etc. was produced to lend support to this ground of default.

18. It may be added that the appellants were liable for default committed by their employee and the legal position in this behalf is not open to any doubt. The cases of Messrs Hamdard Laboratories (Waqf) Pakistan, Karachi v. Shah Syed Hussain.Naqvi reported in 1980 C L C 680 and Shaukat Ali v. Sakhawat Hussain reported in 1984 C L C 34, are self explanatory.

19. Thus, from whatever point of view the matter may be looked at, the appellants have got no case and their defence was rightly struck off. The appeal has got no force and is accordingly dismissed with no order as to costs. The appellants are, however, allowed two months' time to vacate the demised premises.

H.B.T./N‑387/K Appeal dismissed.