P L D 2004 Supreme Court 690 (PLP)

FAQIR MUHAMMAD KHOKHAR, J.

The petitioner seeks leave to appeal against order dated 24-4-2003passed by the High Court of Sindh, Karachi in C.P. No.S-122 of 2003.'-

2. Brief facts of the case are that the respondents filed a petition before the Second Senior Civil Judge/Rent Controller, Karachi (South) for ejectment of the petitioner from a showroom of the building Shafi Courts Mereweather Road, Civil Lines, Karachi, on the ground of default m payment of rent. The respondents also moved an application J under section 16(1) of the Sindh Rent Premises Ordinance, 1979 (hereinafter referred to as the Ordinance of 1979), for passing a tentative rent order. The Rent Controller, by order dated 11-12-1998, directed the petitioner to deposit rent from November, 1997 to May, 1998 @ 2,400 Wiper month within thirty days and future monthly rent on or before 10th of every commencing calendar month. On an application of the respondents, the Rent Controller passed an order dated 24-2-2001, under section 16(2) of the Ordinance, 1979, directing the petitioner to hand over vacant possession of the demised premises on the ground that the petitioner had deposited the rent for the months of November, 1999 and December, 1999 on 11-12-1999 and 11-1-2000 respectively by committing default of one day in payment of rent for the said two months. The petitioner preferred an appeal under section 21 (1) of the Ordinance, 1979, before the Additional District and Sessions Judge (South), Karachi, which was allowed, by order dated 10-1-2003. The case was remanded to the Rent Controller with the direction to dispose of the case on merits after recording the evidence. The respondents filed Constitutional Petition No.S-122 of 2003. The same was accepted by a learned Single Judge of the High Court of Sindh. Karachi, by the impugned order dated 24-4-2003, whereby order dated 10-1-2003 of the Additional District and Sessions Judge was declared to be illegal and without lawful authority and order dated 24-2-2001 passed by the Rent Controller was restored. Hence this petition for leave to appeal.

3. None of the respondents have appeared despite repeated notices. Therefore, they are proceeded ex parte.

4. The learned counsel for the petitioner argued that the delay of one day in the payment of monthly rent on both the occasions had occurred for the reason that 10th December, 1999, was the first day of Ramazan which was declared to be a bank holiday for the purpose of deduction of Zakat and 10th of January, 2000 was Eid Holiday. In these circumstances, the delay could not be considered to be a default within the meaning of section 16(2) of the Ordinance, 1979. The learned counsel lastly contended that it was laid down in the cases of The State Life Insurance Corporation of Pakistan v. Kotri textiles Mills (Pvt) Ltd., (2002 SCMR 605), Malik Shoaib Anwar v. Bashir Hussain Shami and 2 others (1993 SCMR 535) and Nasir Kamal Pasha v. Muhammad Ismail Khan (PLD 1983 Karachi 192), that in the absence of mala fide or wilful negligence on the part of a tenant to comply with the order of the Rent Controller, the delay of one day in deposit of rent could be legitimately condoned.

5. We have heard the learned counsel for the petitioner at length. We find that the monthly rent was deposited by the petitioner on 11th of December, 1999 and 11th of January, 2000 whereas the same was required to be deposited on or before 10th of December, 1999 and 10th A of January, 2000. However, the delay of one day on both the occasions was on account of the circumstances beyond the control of the petitioner as 10th December, 1999 was declared to be a bank holiday and 10th of January, 2000 was a Eid Holiday. Therefore, the orders of the High Court as well of the Rent Controller were not justified.

6. A similar question was considered in a number of cases. In the case of Malik Shoaib Anwar (supra), the delay of one day in the deposit of rent by the tenant was condoned on the ground that by the time the challan forms for deposit were returned to the tenant, the banking hours were over. The deposit of rent on the following day was considered to be a valid deposit. In Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 (W.P) Lahore 11), the tenant was directed to deposit fixed rent up to 5th of each month. However, 4th day of the month happened to be Sunday. It was held that the rent could validly be deposited on 5th of the month. In Messrs Bisvil Spinners Ltd. and 2 others v. Ahmad Aziz Zia and another (1985 CLC 1207 Lahore), the Court was closed on last day for the deposit of rent fixed by the Rent Controller. The deposit of rent by the tenant on reopening of the Court was held to be a valid deposit as the tenant was not at fault so as to be penalized for not depositing the rent on last day. In case of Obaid-ud Salam and others v. Faiz Muhammad Khan and others (1987 SCMR 216) the Court had directed the pre-emptor to deposit the sale price prior to 21st of the month. However, 20th was declared to be a public holiday. This Court took the view that in the circumstances, it was permissible for the pre-emptor to deposit the sale price on the day next after the public holiday in view of section 9 of the West Pakistan General Clauses Act VI of 1956. A somewhat similar view was expressed in the cases of Ikramullah and others v. Said Jamal (1980 SCMR 375) Mst. Mumtaz Begum v. Abdul Wahid (1990 CLC Peshawar 1305), Noor Badshah v. Dr. Rana Arif Ali (1995 CLC Peshawar 1830), Harinder Singh v. S.Karnail Singh and others (AIR 1957 SC 271), Pat Ram and others v Edwin Horward and others (AIR 1931 Lahore 388), Ghulam Muhammad v. Mst. Raj Begum (PLD 1962 (W.P) Quetta 136), Raja Pande v. Sheopujan Pande and others (AIR 1942 Allahabad 429)(F.B), Kaushalendra Prasad Naryan Singh v. R.P. Singh and others (AIR 1958 Patna 196) and Muthuvenkatapathy Reddy v. Kuppu Reddi and others (AIR 1940 Madras 427)(F.B).

7. In our view, even where provisions of section 9 of the West Pakistan General Clauses Act 1956, or section 10 of General Clauses Act, 1897, in terms do not apply, the principles underlying said provisions can be, invoked in appropriate cases in aid of justice, equity and good conscience. The legal maxim lex non cogit ad impossibilia is also attracted in such cases. The petitioner could not be penalized as it was not possible to deposit the rent on the last date fixed by the Rent Controller on account of being bank holiday and public holiday. The impugned judgment of the High Court is not sustainable at law. The deposit of rent by the petitioner on the day following the holiday would be deemed to be a valid deposit as if made on the last day fixed by the Rent Controller in terms of section 16(1) of the Ordinance, 1979.

8. For the foregoing reasons, this petition is converted into an appeal and is allowed. Consequently, the impugned order of the High Court as well of the Rent Controller are set aside. The Rent Controller shall proceed to decide the main case on merits expeditiously. There shall be no order as to costs. M.B.A./5-30/S Appeal allowed.