1985 PLP 811 (SCMR)

Nemo for Respondent. Date of hearing: 30th April, 1980. KARAM ELAHEE CHAUHAN, J.‑‑The dispute in this case is about a shop No.71/2, situated in Sahiwal town, district Sargodha. Abdul Rashid (hereinafter called the landlord) filed an application for ejectment of the petitioner/ tenant from the aforesaid shop. The application was accepted and the learned Rent Controller by his order, dated 13‑9‑1979, directed his eviction from the aforesaid shop inter alia on the ground that he had defaulted in depositing rent for the month of July, 1978, which was to be deposited by the 15th of August, 1978, but was in fact deposited on the 16th of that month. As a matter of fact the learned Rent Controller had found the petitioner guilty of default in payment of similar rent about other months as well but for the purpose of the present order examination only of default in the payment of rent in the month of July, 1978, will suffice.

2. The petitioner/ tenant filed an appeal but without any success as the same was dismissed by the High Court on 2‑12‑1979 and a second appeal being S.A.O. No. 31 of 1980 also met the same fate and was dismissed by the High Court on 3‑3‑1980.

3. The petitioner had come up in a petition for special leave to appeal against the aforesaid to this Court.

4. Learned counsel for the petitioner conceded that the rent for the month of July, 1978, was belated by two days but his submission was that actually the 14th of August, 1978, was a public holiday being Pakistan Day, and so far as the 15th of August, 1978, is concerned he submitted that no doubt the rent due in the circumstances should have been deposited on that date but what really happened was that the challan was given to his client by the learned Rent Controller quite late in the day, with the result, that when he reached the treasury the same was closed and for that reason the rent could not be deposited on that day and was consequently deposited on the next day i.e. the 16th August, 1978. His explanation was not found satisfactory by the High Court and his appeal was dismissed as aforesaid.

5. Learned counsel has repeated the same plea before us. However, we notice that the tenant before the learned Rent Controller did not raise this plea. In that Court the petitioner made no application from the 15th August, 1978 to 13th September, 1979 (i.e. the date when the case was finally decided) for the purpose of getting the aforesaid delay of two days condoned. The plea was similarly not taken in the grounds of appeal before the learned District Judge and nor does it find mention in his judgment. A perusal of ground No.4 of grounds of appeal in the High Court shows that actually the landlord had filed a proper application pointing out to the learned Rent Controller the default on the part of the tenant in depositing the rent. In the aforesaid ground, it is pleaded, "the appellant filed his "written reply" alongwith the receipts of the rent". However, the learned counsel is not in possession of the aforesaid written reply to show to us whether lie had taken up the factual plea of the challan having been given to him late by the learned Rent Controller and his consequent failure to deposit the rent for that reason in the Treasury in time. In these circumstances we feel that the Courts below were justified in not accepting the aforesaid plea which was put forward at a belated stage. Had this been the real position there was nothing to debar the petitioner to raise it before the learned Rent Controller straightway, firstly, in the form of a regular reply which had been filed by the petitioner in writing and secondly, on 13‑9‑1979 when he was directed to be evicted. The plea had not been raised even before the learned District Judge. Since this plea was not taken at any proper time and its authenticity otherwise is not borne out from the existing record, the view in the circumstances taken by the Courts below cannot be said to suffer from any infirmity, omission or misreading of evidence in any manner.

6. The result is that this petition has no merit and is dismissed. However, we grant four months time to the petitioner to vacate the shop subject to his continuing to pay the rent regularly in accordance with law. M.I. Leave refused.