2001 SCMR 1401 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑Briefly stating facts of the case are that appellants instituted eviction application against the respondents in the month of August, 1989 in the Court of VIth Rent Controller, Karachi South on the ground of default in payment of rent with effect from the month of May 1988 to July 1989 at the rate of Rs.405 per month. Because relationship of landlord and tenant was not denied, therefore, on 10th March, 1991 Rent Controller directed the respondent company for deposit of arrears of rent for the period mentioned hereinabove in the sum of Rs.7,290 with Nazir of the Court before 25th of same month. It appears that the order was not complied with and instead of depositing arrears of rent on 25th March, 1991 it deposited on 26th March, 1991, therefore, on 26th May, 1991 defence of the respondent was struck down under section 16(2) of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the "Ordinance") resultantly directions were issued to respondent to vacate the premises. This order was not challenged by the respondent in appeal but during execution proceedings an application under section 12(2), C.P.C. alleging that Mr. Mehfooz‑ur‑Rehman the Advocate of respondent in collusion with landlord/appellant managed to restrain the company from complying with the order of the Controller. The appellant contested the application. However, it was dismissed on 7th April, 1994. Against this order respondent filed F.R.A. No.299 of 1994 which was accepted vide impugned order, dated 3rd September, 1995. Relevant paras from impugned judgment are reproduced hereinbelow:‑‑ "The facts on record admittedly indicate that the amount of arrears was deposited on 26‑5‑1991 instead of 25‑3‑1991 and there is delay of only one day in depositing arrears of rent. It is evident from application dated 25‑3‑1991 moved by the S.A. Hassan, Director Kotri Textile Mills Ltd., that Mr. Mahfoozur Rehman learned counsel for the appellant had left abroad and the entire record was held by him. No doubt a party can be made to suffer from negligence of counsel, but generally Court has also to examine conduct of the party and where a party is not at all fault and not guilty of any carelessness or negligence in view of special circumstances of case and to save party from great injustice or hardship Court may not penalise party for negligence of his counsel. For the foregoing reasons I am inclined to set aside impugned order. Consequently case is remanded to the Trial Court for completion of proceedings on merits and for expeditiously disposal of the case in accordance with law," Against the above order leave was granted to examine following two questions:‑‑ "(i) Whether the respondent's above application under section 12(2), C.P.C. was competent against the aforesaid order dated 26‑5‑1991 striking off the respondent's defence for non‑compliance of the tentative rent order? (ii) Whether the learned Judge in Chambers was justified in allowing the above F.R.A. and condoning the delay of one day in depositing the arrears of rent upon respondent's application under section 12(2), C.P.C.

2. Learned counsel for appellant addressed arguments and contended that learned High Court was not justified in condoning the delay of one day in depositing the rent because the Controller did not extend the period although on the last date i.e. 25th March, 1991 an application was also moved by respondent for extension of time but it was summarily rejected. As the copy of application has not been filed with the appeal and as per the statement of learned counsel for appellant respondent mentioned in that application that their counsel Mr. Mehfoozur Rehman had gone abroad, therefore, they are not in a position to deposit the rent, as such time may be extended for depositing the rent. According to him the application was summarily dismissed on the same day. He further stated that as the Controller has no powers to extend the time orgy review its earlier order relating to deposit of rent because the said order was not reviewable, therefore, the defence of the respondent for non‑compliance of order, dated 10th March, 1991 was rightly passed and learned High Court without furnishing any justification condoned the delay of one day in depositing the rent.

3. No one appeared on behalf of respondent. However, an application was moved for adjournment, which has been rejected.

4. We have considered the contentions of the learned counsel for appellant carefully. Before dilating upon the propriety of the impugned order we deem it necessary to observe about the conduct of the respondent for taking steps to comply with the order, dated l0th March, 1991. It is an admitted position that before expiry of stipulated period on 25th March. 1991 being the last date for deposit of arrears of rent an application was submitted by the respondent for extension of time mentioning therein the reasons for not complying the order within time. Admittedly till then no violation has been committed by the respondent for non‑compliance of the order, dated 10th March, 1991, therefore, it was incumbent upon the Controller to have considered the request of the respondent for extension of time sympathetically and in exercise of its inherent jurisdiction and in the larger interest of justice the application may have been allowed because the respondent/tenant had approached the Rent Controller well in time before the dead line fixed by it for the deposit of the arrears of rent. The conduct of the respondent goes to prove their bona fide and interest to comply with the order, dated 10th March, 1991. The bona fide of respondent also gets confirmation from the fact that on the following day i.e. 26th March, 1991 the rent was deposited though with delay of one day. We have come across with the cases where tenant after non‑compliance of order of deposit of arrears of rent had kept silent unless the landlord had not prayed for striking of his defence due to non‑depositing of rent. But case of such category is distinguishable from the case where the tenant either before or thereafter had himself approached the Court for extending the period for complying the order beyond the stipulated period and had thrown himself (itself) on the mercy of the Court for condoning the delay in the light of the circumstances mentioned in the application. Thus, a distinction has to be drawn in respect of these two categories of the case and if the Court forms opinion that there s no mala fide on behalf of the tenant to comply with the order it always retains inherent jurisdiction under section 16(2) of the Ordinance to enlarge the time reasonably. In forming this opinion we are fortified with the case of Ghulam Muhammad "v. Mst. Raj Begum PLD 1962 Quetta

136. But in the case where a request has been made for condoning of the delay after non-compliance of the order without explaining the circumstances the tenant deserves no concession and Rent Controller is not bound to exercise inherent jurisdiction in his favour.

5. Learned High Court after taking into consideration the facts and circumstances of the case had condoned the delay, therefore, we see no reason to interfere in the order, as it seems to be just and proper in the D circumstances of the case.

6. The learned counsel for the appellant has not agitated the point relating to competency of application under section 12(2), C.P.C. Thus, for the foregoing reasons the appeal is dismissed and the order of the High Court is maintained. No order as to costs. Q. M.R./S‑115/S Appeal dismissed.