P L D 1971 Supreme Court 700 (PLP)

The tenant then took a Letters Patent Appeal against the r judgment and order of the learned Single Judge, but it way dismissed on the ground that there was indeed a default with regard to the payment of rent for the month of March 1960. Under the Rent Controller's order, dated the 18th April 1960, the tenant was to pay "all arrears of rent up-to-date" by the 30th of April 1960. The tenant deposited Rs. 6,480 only by the 30th April 1960. It is evident from the Rent Controller's earlier order dated 3-12-59 that this sum represented arrears of rent up to November 1959. Hence, the tenant, according to the Rent Controller's order, dated 18-4-60, was required to deposit the rent for another four months from December -1959 to March 1960. As, however, the rent for anohter four months was not deposited by the 30th April 1960. the Rent Controller took the view that his order, dated 18.4-60 was not complied with and, for that reason, he struck off the tenant's defence and directed his ejectment. It is contended on behalf of the tenant that the order striking off the defence and directing ejectment was premature inasmuch as the tenant was entitled to deposit the balance, namely, rent for the said four months amounting to Rs. 720 at any time before the expiry of the 30th of April 1960, the last date fixed by the Rent Controller for payment of arrears. It is pointed out that the 30th April 1960 being a Saturday, the tenant deposited Rs. 720 on Monday, the 2nd May 1960. It is next contended on the tenant's behalf that the time allowed by the Rent Controller's order, dated 3-12-59 for payment of the arrears should be counted from the appellate order, dated 2-4-60 dismissing the tenant's appeal in which case there was no default. On the other hand, it is submitted on behalf of the landlord that after the dismissal of the tenant's appeal on 2-4-60, the Rent Controller's order, dated 3-12-59 revived and it was still possible to deposit the rent for the month of March 1960 before the 5th of April 1960 pursuant to the Rent Controller's said order and that the rent for the said month not having been deposited by the said date (5-4-60), there was clearly a default on the part of the tenant and, for that reason, the Rent Controller had no option but to strike off the tenant's defence and direct his ejectment. It is further contended on the landlord's behalf that when the Rent Controller was bound to strike off the defence and direct ejectment because of default in payment of rent for the month of March 1960, he was not competent to pass the order, dated 18-4-60 which, in effect, extended the time fixed earlier for depositing arrear and future rent- The Rent Controller, it is submitted, has no power under the Ordinance to extend time in any case, for, he is a persona designata and the power under section 148 of the Code of Civil Procedure is not available to him. The main question that arises in this appeal is whether there was any default on the part of the tenant in depositing rent, particularly the rent for the month of March 1960, in accordance with the order of the Rent Controller, dated 3-12-59. This question, in its turn, gives rise to the following further questions, namely :- (i) Whether the tenant was required to pay the arrears of rent and future monthly rent in accordance with the original order of the Rent Controller made on 3-12-59 under sec tion 13(6) of the Ordinance, (ii) whether the time for payment of such arrears, in the event of the dismissal of the appeal without enlarging time, should be counted from the date of the appellate order, (iii) whether the Rent Controller has jurisdiction to extend the time for payment of rent after a default has occurred, and (iv) whether the Rent Controller's order striking off the defence and directing ejectment of the tenant in this case was premature. With the dismissal of the tenant's appeal, the Rent Control ler's order, dated 3-12-59, directing the deposit of arrear and future monthly rent was restored. Such an order, as has been held by this Court in Abdul Ghafoor v. Ahmad Kunhi (P L D 1966 S C 983), remains operative till the final determination of the proceedings before the Rent Controller. Therefore, after the dismissal of his appeal, it was required of the tenant to comply with the said order of the Rent Controller. As, however, the time allowed by the Rent Controller had already expired and the appellate order did not fix any time-limit for depositing rent, the question arises as to the time within which the Rent Controller's order should have been complied with. Under the Rent Controller's order, dated 3-12-59, the tenant was given time up to 6-1-60 for depositing the arrears of rent' amounting to Rs. 6,480, but the future monthly rent was tot be deposited before the 5th day of each month. Thus the A tenant was given 34 days in all for depositing the arrears of rent. On the tenant's appeal, the learned District Judge, by his order, dated 4-1-60, suspended the operation of the Rent Controller's order. Thus 31 days elapsed between the Rent Controller's order and the appellate order suspending the opera tion of that order. On these facts, it is for consideration whether the said period of 34 days should be counted from 2-4-60 on which date the appeal was dismissed. The learned Single Judge of the High Court has held that the period allowed by the Rent Controller for depositing the arrears should be counted from the appellate order. But, according to the observations made fn the case of Shah Wali v. Ghulam Din (P L D 1966 S C 983), the rule of "reasonable time" should be applied in such a case. Although the cited case was one in regard to pre-emption, the observa tions made therein are apt and equally apply in the present case. In that case, Cornelius, C. J. approved of the rule of "reasonable time" as laid down in A I R 1939 Nag. 279, in the following words :- "A parallel case to the present case is that of Kisan Dewaloo Mali v. Ganga Bai A I R 1939 Nag. 279 where the pre-emptor after dismissal of his suit by the District Judge withdrew the money lie had deposited towards the price in compliance with the trial Court's decree. Later, his appeal was allowed by the High Court and the suit was decreed in his favour, but no tine was fixed for payment of the price, When he attempted to deposit the money in the trial Court, he was resisted on the ground that the time fixed had already expired, but the matter coming again before High Court, it was held that this was a case of `technicality pushed to extremes' and that the money ought to have been allowed to be deposited within a reasonable time." In the same case, Hamoodur Rahman, J. (as he then was) observed : "But there appears to be some difference of opinion on the question as to what is to happen if the appellate Court even in such an appeal says nothing about the time fixed by the lower Court in making the deposit. One view is that the time remains unchanged, for, even if the appellate decree supersedes the decree appealed from it must be taken to have simply confirmed that decree to that extent vide Sukhram Das v. Nazar Muhammad. The other view is that if the appellate Court decree is the only executable decree and it fixes no period for depositing the pre-emption money the appellate decree must be deemed to have incorpo rated the terms of the decree appealed from with this difference that the period fixed will run from the date of the appellate decree vide Rup Chand and others v. Shams-ul-Jehan. The third view is that in such event the deposit may be made within a reasonable time from the date of the appellate decree vide Guptar Tewari v. Debi Soran Tewari A I R 1914 All. 248 and Kissan Dewaloo Mali v. Ganga Bai A I R 1939 Nag.

279. Another extreme view taken is that in such a case the successful pre-emptor should be entitled to enforce the decree within the period prescribed for the execution of the decree by the Limitation Act, vide Chakar Dar and others v. Ghapila and another 10 P R 1895. Neither the first nor the second nor the last view appear to be based upon sound principles. If the first view prevails then the right of appeal would be rendered illusory unless the deposit has been made even if the pre-emptor is appealing against the quantum of the pre-emption money or the reasonableness of the period fixed. The second view is on its face inconsistent, for, if the appellate decree has incorpo rated within it the terms of the decree appealed from how can the starting point of the period be deemed to have been varied by implication. The adoption of the last view would be clearly in disregard of the provision of Order XX, rule 14, Civil Procedure Code. In the circumstances, I would agree with my Lord the Chief Justice that the third view which appears to be more in consonance with reason and justice should be preferred so that inconsistencies are avoided and a successful pre-emptor is not deprived of the fruits of his decree unreasonably." Under the rule of "reasonable time", the tenant in this case could, at the most, claim a period of 34 days from the appellate order for depositing the arrears as was allowed to him under the order of the Rent Controller less 31 days elapsed between the Rent Controller s order, dated 3-12-59 and the stay order, dated 4-1-60 granted by the appellate Court. Hence, the tenant, who had already spent 31 days before the said stay order, should have deposited the arrears within 3 days after the dismissal of the appeal on 2-4-60. But the arrears amounting to Rs. 6,480 was not paid within those 3 days: Thus applying the rule of "reasonable time", it is found that there was a default on the part of the tenant even in respect of the payment of Rs. 6,480 which represented the arrears up to November 1959: By the time the tenant's appeal was dismissed on 2-4-6d, the rent for the months of December 1959 and January to March 1960 fell due. As the Rent Controller's order had been suspended by an interim order of the District Judge, it is understandable that the rent for the months of December 1959 and January to February 1960 could not be paid by the tenant before the 5th of each month concerned. However, the rent for these 3 months as well should have been paid again within reasonable time, and the time up to the 5th of April 1960 appeared to be the reasonable time for this purpose. At any rate, the rent for the month of March 1960, pursuant to the Rent Controller's order, dated 3-12-59, as upheld on appeal, should have been deposited before the 5th of April 1960. It was both necessary and possible to deposit the rent for the month of March before the 5th of April, as there was still time after the dismissal of the appeal to pay the rent for that month before the said date. The time for payment of the monthly rent before the fifth day of each month is statutorily fixed under section 1.3(6) of the Ordinance, and it is not within the competence of the Rent Controller to enlarge that time. Thus there was a default on the part of the tenant in any case. Section 13(6) of the Ordinance is a mandatory provision providing that in case of default in compliance with the Rent Controller's order to pay arrear rent and future monthly rent, the Rent Controller shall strike off the defence of the tenant and put the landlord into possession. That this provision is mandatory will be evident if it is compared with the provision of section 13(2) of the Ordinance which provides that, in the event of any of the contingencies mentioned in clauses (i) to (vi) thereof, the Rent Controller may make an order directing the tenant to put the landlord into possession. The question whether the provision of section 13(6) is mandatory or not came up for consideration before this Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530). In that case, it was held "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to the discretion of the Rent Controller to decide whether he would or would not in a given case enf9rqe the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection is not so much to afford the landlord an expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must not be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him s notice to quit but also to co-relatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available or the other party deprived of his rights under the law (vide Maxwell, page 285, 11th Edition). Applying this principle in the present case the only interpretation that can be given to the provisions of subsec tion (6) of section 13 of the Ordinance is that its words are mandatory and the Court has no further discretion left in the matter, for, the tenant cannot be entitled to more than what the meaning of the words clearly import." In the present case, the tenant has been found to have defaulted in payment of rent, particularly the rent for the month of March 1960. That being so, the Rent Controller, as has been held in the case of Ghulam Muhammad Khan Limikhor v. Safdar Ali, had no discretion in the matter of enforcing the default clause and was under a duty to strike off the defence and put the landlord into possession. Instead of doing so, the Rent Controller made a second order on 18-4-60 permitting the tenant to deposit "all arrears of rent up-to-date" by 30-4-60 and further rent by the 5th of each succeeding month. As the Rent Controller had no alternative but to strike, off the tenant's defence and direct his ejectment under the mandatory provision of section 13(6) on account of default on his part, his second order permitting the tenant to deposit arrears of rent and future rent was unauthorised. That being so, it is not necessary to consider if the tenant was entitled to deposit the rent till the expiry of the 30th April 1960 under the Rent Controller's unauthorised order, dated 18-4-60. Nor is it necessary if the order of the Rent Controller, dated 30-4-60 striking off the tenant's defence and directing his ejectment was premature on the ground of its having been made before the expiry of 30-4-60. When there was indeed a default on the part of the tenant as has been found hereinbefore, the learned Single Judge was right in maintaining the Rent Controller's order striking off the defence of the tenant and putting the landlord into possession. In the result, the appeal fails and is dismissed. However having regard to the point of law involved, I would leave the parties to bear their own costs. WAHEEDUDDIN AHMAD, J.-I agree. SALAUHDDIN AHMED, J. -I agree. g. B. A. Appeal dismissed.