1983 PLP (2) (CLC)

2. The landlady has filed this appeal against the said order of remand on two grounds :‑ (a) That the appeal filed by the tenant before the Additional District Judge was time‑barred and that he should have dismissed the same as such. (b) That the tenant had committed a clear default in depositing future rent for the month of October, 1975, and `therefore' the Court had no option in the circumstances but to strike off the defence of the tenant, and as such the appellate Court erred to accept the tenant's appeal.

3. It is stated on behalf of the appellant that the Rent Controller had passed his order of striking defence on 10th July, 1976, the respondent had applied for certified copy on 27th .July, 1976, which was prepared .on 13th August, 1976, and as such the last date for filing the appeal was. 25th August, 1976, but the tenant had filed the appeal on 1st September, 1976, which was therefore, time‑barred. It is also contended that since no application was filed under section 5 of the Limi tation Act for condonation of delay, the Additional District Judge . ought to have dismissed the appeal as time‑barred.

4. Learned counsel for the respondent has pointed out that in the month of August, the Court was closed for summer vacation and the appeal having been filed on the reopening of the Court on 1st September, 1976, was within time. However, the learned counsel for the appellant insists that since vacation Judges were working during the month of August and the office was receiving appeals, therefore, it could not be said that the Courts were closed, and the respondent could not take any benefit of section 4 of the Limitation Act, which permits appellant to file an appeal on the reopen ing of the Courts if limitation expired while the Courts were closed.

5. I have examined Notification No. 128‑A/XVIII‑1 dated Lahore the 25th of October, 1971, issued by the High Court to the effect that during the month of August when the subordinate Courts are closed for annual vacations, the respective District Judges shall make arrangements for receipt and entertainment by a Civil Judge, Additional District Judge or by themselves, of civil actions of emergent nature in which an applica tion for stay has also been moved. It is apparent that the arrangement envisaged in the notification was to meet a situation created by the closure of Courts on account of the vacations and not to do away with the vacations. The provisions of section 4 of the Limitation Act `therefore' continued to be applicable during the vacations. In any case without a stay application no appeal could be entertained during the vacations. If one could be filed on the reopening of Courts without a stay application, I do not see how the filing of a stay application with it could make it time‑barred. Reliance is also placed on behalf of the respondent on Fazal Karim and another v. Ghulam Jeelani and others (1975 S C M R 452) in which case their Lordships of the Supreme Court have observed as follows :‑ "From the plain reading of section 4 of the Limitation Act, it be comes abundanty clear that the period during which the Court remains closed on account of the vacations, has to be excluded for the computation of limitation and the notification cannot take precedent over the statutory provision." This observation was made in respect of a notification issued pertaining to the working of the High Court during vacations. The same principle would apply for interpreting the effect of a notification issued in respect of the subordinate Courts. The appeal filed by the respondent, therefore, cannot be regarded as having been barred by time.

6. The next contention of the appellant that there was a clear default committed by the tenant in depositing future rent in Court for the month of October, 1975, is made in the context of the following facts :‑ "The order for depositing tentative rent under section 13 (6) of the Rent Restriction Ordinance was made by the Rent Controller on 24th September, 1975. Arrears at the rate of Rs.100 per month for seven months from March to September 75, amounting to Rs: 700 were ordered to be deposited before 30th October, 1975 and future rent for every month was to be paid before the 15th day of the following months. . The tenant deposited the arrears in time. Two months rent amounting to Rs.200 was sent by the tenant through Money Order before the order of deposit was made and was received by the landlady on 24th September, 1975, i.e , the day on which the Rent Controller had made the order of deposit of rent. Therefore, the tenant paid the rent for January, 1976, onwards in time, but the rent for October, 1975, was deposited on 28th May, 1976."

7. It is obvious that the rent for the month of October, was deposited late, but the tenant had an explanation to offer, which was not accepted by the Rent Controller who struck off the defence of the tenant on 10th July, 1976. The explanation was accepted by the appellate Court, against whose order the landlady has filed this second appeal.

8. The explanation offered is the following: On 1st November, 1975, which was the first date of hearing after the order of deposit was made, the Rent Controller noticed the fact that the tenant had already paid Rs.200 to the landlady through Money OrdeRs.He, therefore, made an order on that very date to the effect that rent for the months of November and December, 1975 stood paid by the tenant, and that she shall now pay future rent for the month of January onwards. The tenant, therefore, continued to pay the rent from January onwards as ordered by the Court. She was misled by the Court's orders and the default for the months of October, 1975, was therefore, not wilful.

9. Learned counsel for the tenant has also submitted that on 1st November, 1975 only the parties appeared in Court and not their advo cates, and the tenant was misled by the orders that were passed on that date. There was no intention on her part to commit any default. He also relies on the maxim actus curiae neminem gravabit, an act of Courts shall prejudice no man, which was noticed and applied in Mian Irshad Ali v. Government of Pakistan (P L D 1975 Lah. 7). In this judgment the case of Nallini Kanta Roy v. Kamardddi and others (A I R 1933 ‑Cal. 239) is cited, the facts of which case were that decree was by mistake dated the 16th of February, 1929, instead of 11th February, and the decree holder being misled thereby applied for execution beyond three years on the 15th of February, 1939, and it was held that the maxim applied and the decree ought to be regarded as having been passed on the 16th of February, 1929. I hold that the maxim applies to the circumstances of the present case as well.

10. I am, therefore, of the view that the tenant could not be penalised for his default when there was a clear direction issued to her by the Rent Controller that she may deposit future rent from the month of January onwards.

11. It is also contended on behalf of the tenant that mere non‑compliance with the order of deposit of rent did not necessarily constitute wilful default. The tenant had made substantial compliance with the orders of the 'Court but she was misled by the orders passed by the Rent Controller. I am of the view that the circumstances of this case were certainly such that the tenant could reasonably hold a. mistaken belief that by depositing the future rent for the months of January onwards she was duly complying with the orders passed under section 13 (6) of the Rent Restriction Ordinance. I therefore, hold that the first appellate Court has rightly decided the question of fact that the, default committed by the tenant was not wilful. A large number of rulings have been cited on behalf of the landlady to the effect that when a default has occurred, it is not possible for the Rent Controller to extend the time. However, the decision of the case turns on the question whether the default made in this case was wilful or not and since it is my view that it is not a case of wilful default, I find that there is no force in this appeal which is hereby dismissed. M. Y. H. Appeal dismissed.