1986 PLP 1156 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑Respondent No. l Mst. Sarwari Begum brought an ejectment application before the learned Rent Controller, Rawalpindi against the petitioner for the non‑depositing of rent. The petitioner deposited the rent in time except on three different occasions when he was late by one day. For this default the learned Rent Controller struck off the defence of the petitioner and ordered him to vacate the suit shop vide order dated 22‑11‑1983. On appeal filed by the petitioner the learned Additional District Judge Rawalpindi held that no default had been committed as the due date was a closed holiday and under the law rent could be deposited on the following day, 'and regarding the other two defaults the learned Additional District Judge confirmed the order of the Rent Controller and as a result, dismissed the appeal. The petitioner thereafter invoked the constitutional jurisdiction of the Lahore High Court, Rawalpindi Bench through Writ Petition No.55 of 1984 which was dismissed vide the impugned order

2. The facts of the case are that respondent No.1 Mst. Sarwari Begum instituted an ejectment petition against the appellant stating that he had materially damaged the property. The petition was resisted by the appellant before the learned Rent Controller. The learned Rent Controller, vide his order dated 10‑5‑1979, directed the appellant to deposit the rent under section 17 (8) of the Cantonment Rent Restriction Act before the 5th of every month. The respondent moved an application on 8‑11‑1983 stating that the appellant has failed to deposit the rent as directed by the learned Rent Controller and, therefore, his defence be struck off. It was alleged in the application that rent for June, 1980 was deposited on 5‑7‑1980 while that the June, 1981 was deposited on 5‑7‑1981 and the rent for April, 1982 was deposited on 5‑5‑1982. This application was contested by the appellant. About the default, it was submitted by him that on 4‑7‑1980 it was Friday and the rent was deposited on 5‑7‑1980. About the remaining two defaults it was stated by him that as a result of misunderstanding created by the Advocate, the rent was deposited on the last date instead of due date i.e. one day earlier. The learned Rent Controller, after hearing the parties, came to the conclusion that the appellant had violated the order passed under section 17 (8) of the Cantonment Rent Restriction Act, and, therefore, the defence of, the appellant was struck off and he was ordered to vacate the premises within 30 days.

3. It is argued by the learned counsel for the appellant that the delay or default was not wilful and that the learned Rent Controller had not afforded any opportunity to the appellant to explain the delay in depositing the rent before the 5th of every month. We have gone through the file and have examined the contentions raised by the learned counsel. There is no dispute about the two deposits made by the appellant for June, 1980 and July, 1981 as rent for these months was deposited on the 5th of next month. The learned Rent Controller was competent to strike off the defence of the appellant as there was no other option left for him. Appellant himself took the risk of depositing the rent on the last date and urged that the Clerk of the learned Court, who prepared deposit challans, was not present and, therefore, the rent could not be deposited in time. We are not impressed with this argument. The appellant himself took the risk of depositing the rent on the last date and the consequence thereof should also be borne by him. Appeal is, therefore, dismissed with no order as to costs.

4. Learned counsel for the appellant requests that time may be allowed to the appellant to hand over the possession of the shop to respondent No.1. Two months' time is allowed to the appellant to vacate the shop and hand over its possession to respondent No.1. This should be without any recourse to execution proceedings. M. I. Appeal dismissed.