1987 PLP 2176 (CLC)

PLD 1975 Lah. 185 rel. Ch. Muhammad Arif for Appellant. Syed Munir Hussain for Respondents. Date of hearing: 25th January, 1983. This S.A.O. has been filed by the landlords to assail the validity of the order of the first appellate authority dated 1‑7‑1978 whereby the appeal of the tenant was accepted and the order of the Rent Controller passed under section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 striking off the defence of the tenant was set aside.

2. The brief facts giving rise to this appeal are that on 18‑12‑1972 the appellant s‑la n d1ord s filed an eviction application against the tenant on the ground of personal requirement, subletting and default. The learned Rent Controller on 19‑4‑1973 passed an order in terms of section 13 (6) of the Ordinance for the deposit of the arrears before 15‑5‑1973 as well as future monthly rent before the 15th of each succeeding month. The eviction of the tenant was ordered by the Rent Controller on 13‑1‑1975 on the ground of non‑compliance with the order regarding deposit of rent. The matter was taken up in appeal and the plea was raised that proper opportunity had not been given to the parties. The case was remanded. In remand the Rent Controller again held that there was a wilful disobedience of his orders and therefore directed the striking off the defence of the tenant. The matter was then taken up in appeal which came up for hearing before Mehr Muhammad Nawaz, Additional District Judge, Kasur who by his order dated 1‑7‑1978 purported to accept the appeal and reversed the order of the Rent Controller.

3. The learned counsel appearing on behalf of the appellants has strenuously argued that firstly, in so far as the deposits with respect to months of April, August to October and December, 1973 were concerned, they were to be made before the 15th of each succeeding month. They were instead made on the 15th of each month whereas the deposit for the rest of the months was made in keeping with the spirit of the order before the 15th. This by itself is a sufficient circumstances for the inference that in so far as the true import of the order of the Rent Controller is concerned the tenant suffered from no misgivings. I am however of the view that a litigant who adopts the course of filing a suit on the last day of limitation or complies with an order on the last date or thereafter does so at his own risk and peril. This is not a rule of law that the Court should lean in favour of a presumption of ignorance in favour of a litigant. Ignorance of law has never been considered to be a good ground. If on the facts of a given case a plea of fact was sustained as regards the bona fide import of the order and benefit was extended to a tenant it cannot be extended as a universal rule. Therefore, the view of the learned first appellate authority that there was a doubt or benefit of doubt ought to be extended in favour of a tenant is based on misappreciation. Even in cases of doubt, the doubt must be such as would arise in the mind of a reasonable person. The degree of reasonableness has not been adverted to by the first appellate authority. Therefore, on no conceivable principle he could have condoned the delay when it amounted to infringement of a mandatory direction of the Rent Controller. The exercise of jurisdiction in this Case by the first appellate authority therefore does not proceed on sound principles for exercise of judicial discretion.

4. In so far as the second default is concerned, it is not disputed that the rent for the months of the June and July, 1973 and May, 1974 had been deposited on the 17th instead of 15th of the succeeding months. There was thus a clear breach of the order of the Rent Controller. This default was sought to be covered through the certificates of a person issued on the same date, i.e. 18‑9‑1974 while the default was pointed out by the landlords to the Rent Controller. A bare reading of these certificates which are coming, as held by the first appellate authority, from a quack would show that they in each case covered the period of 15th of each month in dispute and co‑incidentally the periods during which the illnesses occurred were between 10th and 16th. The evidence of the so‑called doctor Zaheer .Ahmad Farooqi who was not a qualified person to practise medicine to say the least, miserably fell short of the requirements of an expert evidence or evidence of a doctor which could be relied upon for the purpose of condonation of serious default which was to be visited with a severe penalty of striking off the defence of a tenant. There is no explanation from the tenant himself that even if his attorney was ill, why he himself was incapacitated to deposit the rent and to comply with the mandatory order of the Rent Controller. This is not a case of an isolated default. Nothing has been brought on record to show that in the event of the attorney being sick, the tenant was incapable of performing the same act himself. The matter between the tenant and his attorney is as between themselves. The case had to be brought within the ambit of circumstances beyond the control of the tenant to comply with the order. These legal requirements are miserably deficient in the present case. Therefore, the discretion exercised by the first appellate authority in favour of the tenant borders on arbitrariness which is subject to correction.

5. The third ground which has weighed with the learned first appellate authority is that of waiver. The matter rests on policy of law. It was not a personal right of a landlord who could waive or abandon it. The matter being between the Court and the litigant the concept of waiver has no application. The learned counsel for the appellants has also relied on the ratio of PLD 1975 Lahore

185. This is an authority for the view that in order to attract the rigours of waiver, there has to be a conscious conduct of the person concerned. So, where in case like this there is no element of conscious conduct on the part of a landlord in condoning a delay when in fact he had no such authority to do so, the question of waiver would not properly arise.

6. For all the above reasons, I have no hesitation in accepting this appeal, setting aside the impugned order of the learned Additional District Judge and ordering that the respondents defence was rightly struck off by the Rent Controller on correct appreciation of facts and proper application of law.

7. At this stage, the learned counsel for the respondents has taken up the stance that his clients have been carrying on business in the shop in dispute for a long period and that keeping in view this fact, notwithstanding the statutory bar they be allowed sufficient time to find out an alternative accommodation. The prayer is being made for a year by the respondents to stay on the premises subject to their paying the rent and also handing over vacant peaceful possession to the landlords without having resort to execution proceedings. This proposal is accepted by the learned counsel for the appellants. One of the appellants Muhammad Siddiq is also present in Court and he accepts this proposal and offer of the learned counsel for the respondents. Both the tenants Inayatullah and Balal Ahmad are also present and this proposal has been made by their learned counsel after due consultation. In my view, the matter now rests more on a compromise course and therefore I have no hesitation in ordering that the respondents‑tenants will handover vacant peaceful possession of the premises in dispute to the landlords on 24‑1‑1984. In the In the meanwhile they shall continue to pay the monthly rent. In the circumstances of the case, there will be no order as to costs. K. B. A. / M‑266 /L Appeal accepted.