1995 PLP 19 (CLC)

3. The appellant filed a written statement and asserted that he had paid the rent to the respondent up to May, 1993, and on his refusal to accept the rent for June, 1993, he had started depositing the same in Miscellaneous Rent Case No. 451 of 1993 with the Nazir of the Rent Controller.

4. On an application under section 16 (1) of the Ordinance filed by the respondent after notice to the appellant and upon consideration of his 'objections learned Rent Controller by an order dated 16‑11‑1993 directed the appellant to deposit the arrears of rent at the rate of Rs.1,400 per month with effect from the month of October, 1991, till October, 1993 amounting to Rs.35,000 within 90 days from the date of the Order. He was further directed to deposit further monthly rent on or before the 10 of each following month.

5. Before the expiry of the period for the deposit of arrears of rent appellant moved an application before the Rent Controller seeking an order for transfer of an amount of Rs.6,500 deposited in Miscellaneous Rent Case No. 451/1993 to Rent Case No. 408 /1993.

6. He also prayed for extension of three months time for depositing the arrears of rent as he was not in a position to do so within the time allowed by the Controller. Alongwith the application he filed copies of the challans showing the deposit of rent by him in‑the Miscellaneous Rent C&‑,e prior to the passing of the tentative rent order.

7. Learned Rent Controller after notice to the respondent by a short order dated 13‑2‑1994 dismissed this application with the observation that there was no provision in the Ordinance for review of the order. On the next day, i.e. 14‑2‑1994 appellant deposited a sum of Rs. 28,500 with the Nazir of the Rent Controller and he continued to deposit the future monthly rent in terms of the order passed by the Rent Controller.

8. Being dissatisfied, the respondent moved an application under section 16 (2) of Ordinance against the appellant seeking to strike off the defence of the appellant on the ground that he had failed to deposit the arrears of rent within 90 days which expired on 14‑2‑1994. A notice of this application was issued to the appellant who denied the default stating that he had complied with the tentative rent order. After hearing learned counsel for the parties, learned Controller came to the conclusion that the period of 90 days fixed by him for the deposit of arrears of rent expired on 13‑2‑1994 whereas the appellant had deposited the same on 14‑2‑1994. He, accordingly, directed the striking off the defence of the appellant allowing him 60 days time to vacate the premises, which had been impugned in this appeal.

9. I have heard learned counsel appearing for the appellant and the respondent in person at length who had come fully prepared with the brief and did not require the services of any advocate.

10. Calculating the period of 90 days from the date of initial order, it seems that the period of 90 days would expire on 14‑2‑1994 taking into consideration 14 days in the month of November, 31 days each in the month of December, 1993 and January, 1994 and 14 days in the month of February, 1994 when the arrears of rent were actually deposited. Learned counsel for the appellant rightly urged that the period of 90 days would be reckoned from the day following the day of passing of the order and calculated accordingly, there was no default in compliance of the order as misunderstood by the Rent Controller. In fact, the respondent himself in his application under section 16 (2) of the Ordinance had categorically stated that the 90 days period allowed for deposit of rent expired on 14‑2‑1994.

11. Respondent Mahboob Ali Khan, however, contended that the initial order requiring the appellant to deposit the arrears of rent within 90 days from the date of the order would mean and include the date of passing the order and not excluding the date thereof. In the given circumstances, I am not inclined to accept the view advanced by the respondent as well as the learned Rent Controller as under the provisions of Limitation Act as well as the Sindh General Clauses Act, the date of passing the order cannot be taken. into consideration to the disadvantage of the appellant. Since the provisions of section 16 (2) of the Ordinance are penal in nature these have to be construed strictly and in the event of a slightest doubt benefit has to be resolved in favour of the tenant. I am fortified in this opinion by a judgment of a learned Single Judge of this Court in the case of Mst. Shahana Jawed v. Haroon decided on 11th February, 1991, reported in 1991 MLD. 1914. In this case my learned brother Wajihuddin Ahmad, J. observed as under: "This has to be so as in the Limitation Act, 1908, under section 12 (1) therefore the day from which the period of limitation is to be reckoned shall be excluded. Likewise in terms of the Sindh General Clauses Act, 1956 per section 8 thereof in a Sindh statute "it shall be sufficient, for the purposes of excluding the first in a series of days or any other period of time to use the word "from" and for the purpose of including last in a series of days or any other period of time to use the word `to'. No doubt we are not construing here a statute nor a period of limitation strictu senso but in the absence of guidelines in the relevant Rent Law the rule of beneficial construction has to be applied to acts done under the Rent Law, much the same way as equitable principles of the Code of Civil Procedure have been appropriately invoked, and in consonance with the rule the commencing day has to be counted out from the reckoning. Any other approach would be unfair and unjust. Another reason for this interpretation lies in the fact that section 16 (2) is penal in nature and penalties are to be imposed only in a strict manner and beyond the scope of all doubts. In such behalf the Controller may have been within his powers to include the date of the order for the purposes of count but since he has not done so exclusion of such date in making deposit cannot attract penalties."

12. Finding him on weak wicket the respondent then vehemently urged that the appellant had committed a wilful default by depositing a sum of Rs.28,500 as against the required deposit of Rs.35,

000. On being confronted with the position that the tenant‑appellant had been depositing rent in Miscellaneous Rent Application No. 451/1993 much before the filing of the ejectment case against him, he contended that the deposit in Miscellaneous Rent Case could not be considered as sufficient compliance with the tentative rent order passed by the learned Rent Controller. He was of the view that since that amount was not transferred by the Rent Controller to the account in the ejectment application filed by him, this ground was not available to the appellant. In this connection he relied upon a judgment of this Court by a learned Single Judge reported in 1984 CLC 1341. I have gone through the reported case in which the facts were entirely different. In the said case Rent Controller had directed on 5th May, 1991 the deposit of arrears of rent amounting to Rs.7,200 within 30 days and future monthly rent on or before 10th of each calendar month. Instead of depositing the entire amount within time the tenant had deposited only a sum of Rs.3,600 on 21st May, 1981 on the ground that he had already paid rent to the landlord through two Bank drafts for Rs.2,700 each. However, on being advised he had deposited the balance amount on 4th July, 1981. In these circumstances, it was held that he had committed a default in compliance with the direction for deposit of the tentative rent amount.

13. On perusal of the record and proceedings,. I find that the appellant before this Court had very rightly and well within time made a prayer for adjustment of a sum of Rs.6,500 deposited by him in the Miscellaneous Rent Case by making an application before the Rent Controller on 1‑10‑1993. unfortunately, learned Rent Controller did not appreciate this aspect of the case and instead of calling for a report from the Nazir and directing the transfer of the amount to the rent account of Rent Case No. 408/93, he declined the prayer on the short ground that there was no provision in the Ordinance for the review of the order. It is noteworthy that the appellant had never asked for review of the earlier order and all that he desired was to take into account the amount already deposited by him much prior to the passing to the tentative rent order.

14. In these circumstances, I am unable to persuade myself to agree with the contention of the respondent that the appellant had committed a wilful default by depositing lesser amount with the Nazir or that the earlier amount deposited by him in Miscellaneous Rent Case was of no avail to him. Although no authority is required in support of this proposition there is a judgment by another learned Single Judge of this Court reported in 1991 MLD 1390. In this case, my learned brother Hyder Ali Pirzada, J (as he then was) has held that the deposit of rent in Miscellaneous Rent Case was a mere irregularity rather than penal non‑compliance of the order of the Controller. Reliance was placed on a judgment of the Hon'ble Supreme Court of Pakistan in the case of Abdullah Ghanghro and another v. Mst. Tahira Begum and others (1988 SCMR 970).

15. In view of what has been stated above, I am clear in any mind in holding that the learned Rent Controller fell into an error by striking off the defence of the appellant in the aforesaid circumstances. Accordingly, impugned order is set aside and the appeal is allowed with no order as to costs. The rent case is remanded back to the learned Rent Controller for decision in accordance with law from the stage before the passing of the impugned order. In view of pendency of the rent case for a long time and the respondent having prayed for ejectment on the ground of his personal bona fide requirement, the Rent Controller would take steps to ensure that the case is decided on merits as quickly as possible. The parties are directed to appear before the Rent Controller on 2‑10‑1994. The office is directed to ensure the return of the R & P to the lower Court immediately. H.B.T./H‑384/K Appeal allowed.