HASHIM KHAN Versus GHULAM NABI

1. SAJJAD AHMAD, J.‑ The appellant herein is the respondent's tenant of premises No. 8, Al‑Hijaz Hotel Building, Lidbitter Road, Napier Quarters, Karachi, on payment of a monthly rental of Rs.100. An application was moved by the respondent for the appellant's eviction from the rented premises on various grounds. The hearing of the application was fixed for the 14th of May 1966. As the counsel for the appellant was absent owing to illness, the appellant sought an adjournment, which was, however, refused by the Rent Controller, who passed an order on that date under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, to the following effect :‑

2. "I direct the opponent (the present appellant) to deposit the aforesaid arrears before the 15th of July 1966, and he is further directed to deposit the future monthly rent regularly before the 15th of each month till the final disposal of the case."

3. The appellant deposited the arrears of rent amounting to Rs.1,000 for the period 1st of September 1965, to 30th of April 1966, and also the rent for two months, t. e., May and June 1966, at ill Rs.100 per mensem, total Rs.1,000, on the 4th of July 1966. The respondent landlord then moved an application on the 16th of July 1966, praying that the defence of the appellant be struck oil, as he had failed to pay the rent for May 1966, before the 15th of June 1966, in terms of the order of the Rent Controller dated the 14th of May 1966, already reproduced above. In reply to this application, the appellant averred that he had informed his counsel about the events that had occurred in the Court on the 14th of May 1966, during his absence on account of illness. The learned counsel (Mr. Muhammad Yousuf) inspected the record of the case and told him that the arrears as well as the current rent due was to b.‑ deposited before the 15th of July 1966. Mr. Muhammad Yousuf supported the appellant's plea by an affidavit, wherein he! stated inter alia that after seeing the case file, he had told the' appellant that the amount of arrears of rent as well as the monthly rent due were to be deposited before the 15th of July 1966. The learned Rent Controller accepted the plea of the appellant, but, on appeal, the learned Additional District Judge rejected it, and held that it was a case of negligence in non‑compliance with the order of the Rent Controller. Consequentially, he ordered that the defence of the appellant be struck off. On a second appeal by the appellant, the order of the lower appellate Court was,, affirmed.

4. We have heard the learned counsel for the parties at a con siderable length, and we have formed the view that this is not a case of wilful default on the part of the appellant in depositing the rent for the month of May 1966, within time, as directed by the learned Rent Controller. It is correct that the learned counsel for the appellant (Mr. Muhammad Yousuf) had interpreted the order of the learned Rent Controller in his own light, and advised the appellant to deposit the entire rent, including that for May 1966, before the 15th of July 1966. 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 a 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.

5. The result is that we allow this appeal, set aside the order of the appellate Court as well as of the High Court, and restore that of the Rent Controller. The case will now go back to the Rent Controller to be decided on merits.

6. The Parties will bear their own costs of this appeal.

7. Appeal accepted.