ABDUL SAMAD Versus GHULAM RASOOL

S.A.NUSRAT, J. ‑‑This judgment will dispose of the above two appeals, which are directed against the judgments dated 2‑4‑1987 of the Baluchistan High Court passed in two rent appeals bearing F.A.0. Nos.78 & 79 of 1986, as the facts and questions of law involved in the same are similar/common.

2. The respondents/ landlords filed two eviction applications under section 13 of the Baluchistan Urban Rent Restriction Ordinance (VI of 1959) before the Civil Judge and Rent Controller, Quetta, on 15‑4‑1986 (Nos.30 and 31 of 1986) against the appellant on the grounds of default in payment of rent for the period from July, 1985 to March, 1986 and causing damage to the premises. The appellant filed written statements denying the allegations along with statements showing payment of rent in the past. The Rent Controller framed two issues on 8‑7‑1986 and on the same date passed orders in both the cases under section 13(6) of 'Ordinance VI of 1959 directing the appellant to deposit arrears of rent from 1‑7‑1985 to 30‑6‑1986 before the next date of hearing fixed for 7‑9‑1986. The future monthly rent was ordered to be deposited before 15th of each succeeding month. The respondents by their applications dated 30‑8‑1986, moved the Rent Controller for striking off the defence of the appellant alleging non compliance of the order of deposit of rent dated 8‑7‑1986; inasmuch as the rent for the month of July, 1986 was not deposited before 15‑8‑1986. Replies to the said applications were filed by the appellant on 23‑9‑1986 followed by another, said to be in continuation of the earlier one, on 14‑10‑1986. 'The Rent Controller, by a common order dated 4‑11‑1986, dismissed the said applications accepting the plea of the appellant that non‑compliance of the order dated 8‑7‑1986 was due to some misunderstanding on his part.

The said order was challenged by the respondents in appeals before the High Court, which were allowed as per impugned judgments and consequentially the defence of the appellant was struck off and he was directed to hand over vacant possession of the premises within eight months subject to payment of rent.

3. Leave to appeal was granted to examine the contentions that the explanation of the appellant having been accepted by the Rent Controller in view of some alleged ambiguity in the order, the learned High Court was not justified in interfering with such order and directing eviction of the appellant; and that in view of the amendment introduced in section 13(6) of Ordinance VI of 1959 on 1‑10‑1984, the application of the respondents was itself liable to be dismissed as the appellant had, before the filing of the written statements, deposited the claimed arrears of rent.

4. It was contended by the learned counsel for the appellant that the order of deposit of rent dated 8‑7‑1986 was a composite order whereby the appellant was directed to deposit arrears of rent from 1‑7‑1985 to 30‑6‑1986 before the next date of hearing (7‑9‑1986) and future monthly rent before 15th of each next month. According to the learned counsel, the confusion had arisen on account of the fact that the order in question was passed during the currency of the month of July, 1986. The appellant having found no specific mention in the order with regard to the deposit of rent for the current month i.e., July, 1986, had understood that he had to deposit future rent before 15‑9‑1'986 and that is why he had deposited rent for the months of July, August and September, 1986 on 7‑9‑1986. The learned counsel referred to the following explanation 'of the appellant furnished in reply to the respondents' application for striking off the defence:‑

"The direction was passed on 8‑7‑1986 wherein the respondent was directed to deposit the arrears of rent with effect from July, 1985 to 30th June, 1986 by the next date of hearing which was fixed for 7‑9‑1986. It was further mentioned therein that; (ainda her mah ka karaya aglay mah ki pendran tarikh se pehly jama kary)" There is, however, no specific mention that as to when the rent for the current month i.e., July, 1986 was to be deposited. From the sentence mentioned above, the respondent went under confusion and thereby understood that perhaps after the deposit of arrears upto 30th June, 1986, he had to deposit the rent from August, 1986 which had to be deposited before 15th of September, 1986. That is why he deposited the rent for July, August and September, 1986 on 7‑9‑1986 and thereafter he is depositing the same just in accordance with the directions of the Court. The delay in depositing the rent of July, 1986 of about 23 days has occurred just on account of the confusion created by the said direction or for that matter it is submitted that the respondent being uneducated failed to understand from the said order that as to when the rent for the month of July, 1986 had to be deposited."

5. The decision in the appeals mainly turns on the question whether the explanation furnished by the appellant regarding non‑compliance of the order dated 8‑7‑1986 was reasonable and rightly accepted by the learned High Court.

6. It was contended by the learned counsel for the respondents that the plea of the appellant that he had misunderstood the order was not correct because there existed no such ambiguity in the order of deposit of rent. Besides, the appellant had failed to submit any explanation explaining the circumstances for his default before the filing of applications for striking off the defence by the respondents. According to the learned counsel, the appellant had taken contradictory stand in the two explanations furnished by him. It was pointed out by him that there was no mention with regard to any misunderstanding of the order in the first reply of the appellant dated 23‑9‑1986. Such plea was no doubt taken by the appellant in his second reply dated 14‑10‑1986 which, according to the learned counsel, was an after thought. Mr.Yahya Bakhtiar, the learned counsel for the appellant, however, stated that the appellant had not taken any contradictory stand before the Rent Controller in explaining the circumstances, which had resulted in deposit of rent for the month of July, 1986 on 7‑9‑1986. According to the first explanation, the appellant had instructed his office to deposit rent in accordance with the order of the Rent Controller, which did not amount to say that the order was not ambiguous. The appellant had gone to perform Hajj and his office manager had deposited rent on 7‑9‑1986 under confusion that the rent for the month of July, 1986 was also to be deposited before 15‑9‑1986. According to the learned counsel, this was a case of bona fide mistake and the appellant, who is an old man, should not be penalised for such a genuine mistake.

7. We have gone through the tentative rent order dated 8‑7‑1986 (written in Urdu). The said order was passed during the currency of the month of July, 1986 and the direction with regard to payment of future monthly rent was made in the following words:‑

(ainda her mah ka karaya aglay mah ki pendran tarikh se pehly jama kary)"

The explanation furnished by the appellant that no mention was made in the order with regard to deposit of rent for the current month i.e., July, 1986, though legally incorrect, in our view, may have caused some misunderstanding when read out to a layman, more particularly because of the words used "Ainda her mah ka karaya" which could have been misunderstood as meaning rent for the next following month i.e., August and not the current month. The learned Rent Controller, who was the author of the order dated 8‑7‑1986, was satisfied within the explanation furnished by the appellant. In this background of facts, it was contended by the learned counsel for the appellant that, the High Court should not have ignored the findings of the Rent Controller and allowed the applications because striking off the defence under section 13(6) of the Ordinance is extreme penalty and interpreta tion of order of deposit of rent not being free from some misgiving, should have been construed leniently in order to avoid hardship.

The learned counsel referred to a decision of this Court in the case of Hashim Khan v. Ghulam Nabi and 7 others 1973 S C td R 112 in which case on account of wrong interpretation of the order of the Rent Controller regarding deposit of arrears of rent, the tenant was excused and the orders of the Rent Controller as well as the High Court striking off the defence of the tenant were set aside. The learned counsel for the respondents, however, contended that this judgment was distinguishable on facts inasmuch as the appellant had nowhere pleaded that he had acted on the wrong advice of 'his counsel. There can be no cavil with the ratio of the judgment as we do not see any reason why a bona fide mistake of the tenant himself cannot be considered a ground for condonation of default.

8. For the reasons mentioned above, we would set aside the impugned judgments of the learned High Court and allow the appeals leaving the rent cases to be decided on merits by the Rent Controller.

There will be, however, no order as to costs.

M.Y.H./A‑293/S Appeal allowed.