1987 PLP 1189 (CLC)

‑‑‑S. 13(6)‑‑Tentative rent order‑‑Non‑compliance of‑‑Question of waiver‑‑Withdrawal of rent by landlord from Court, held, would not itself amount to waiver on part of landlord to save tenant from legal consequences of non‑compliance of tentative rent order passed by Rent Controller. Mst. Bachi Bai v. Ghulam Abbas P L D 1972 Kar. 278; Muhammad Younas v. Abdul Hamid P L D 1975 Lah. 1326 and Umar Din v. Ghulam Jilani P L D 1976 Lah. 567 ref. Sh.Maqbool Ahmad for Appellant. Qazi Shafi Muhamamd for Respondent. The order will dispose of S.‑A.O. Nos. 14, 15 and 16 of 1976. Briefly stated the facts giving rise to these appeals are that on 1‑2‑1972 Haji Ghulam Sabir, respondent, filed applications for the ejectment of the appellants Muhammad Shabbir, Muhammad Saleem and Muhammad Afzal from three rented shops part of Property No. 17/Q, situated in Farid Town, Sahiwal, on the grounds that the appellants had caused damage to the rented shops and that the said shops were required by him in good faith for reconstruction and for his own use and that of his son. In the case of Muhammad Saleem appellant, it was also alleged that he had sublet the rented shop.

2. The appellants were ordered by the Rent Controller, Sahiwal, on 15‑3‑1975, to hand over the vacant possession of the shops in their occupation to the owner Haji Ghulam Sabir, respondent, before 16‑4‑1975, as their defence was struck off under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 (hereinafter to be referred as the Ordinance) because they had failed to deposit the rent of the shops for the month of July, 1974, before the 15th of August, 1974, in accordance with the order passed by the Rent Controller on 31‑3‑1972. Their appeals against the order of the Rent Controller were dismissed by the Additional District Judge, Sahiwal, on 27‑11‑1975. Feeling aggrieved by the orders of the Rent Controller and the Additional District Judge the appellants have filed the present appeals in this Court.

3. Learned counsel for the appellants has contended that the default in depositing the rent for the month of July, 1974, before 15th of August, 1974, was not wilful because they could not deposit the said rent in the month of August as the Courts were closed for summer vacation. They had deposited the rent for the month of July in September after the re‑opening of the Courts. In the two preceding years 1972 and 1973 also, they had deposited the rent for the month of July in September, and since the respondent has received the said rent, without raising any objection, they were under a bona fide belief that as advised by their counsel, the rent for the month of July could be deposited after the re‑opening of the Courts in the month of September, without their being any risk of non‑compliance with the order of the Rent Controller. It has also been contended that the respondent after having the rent deposited by the appellants had waived the non‑compliance of the rent Controller's order regarding deposit of rent by the appellants and, as such his application for striking off the appellant's defence submitted by him to the Rent Controller on 6‑12‑1974 was not legally competent. It has been further stated that the learned Rent Controller did not afford adequate opportunity to the appellants to deposit the rent for the month of July, 1974, immediately on the re‑opening of the civil Courts after summer vacation.

4. Learned counsel for the respondent, on the other hand, has contended that the appellants' plea that they were misled by the advice of their counsel in depositing the rent for the 'month of July in September, is clearly an afterthought as they had not raised it either in their replies to the applications submitted by the respondent for striking off their defence, nor was it raised by them before the learned Additional District Judge. Even otherwise, the appellants should not be permitted to raise it for the first time in second appeal. According to he learned counsel, there is no substance in the appellants' contention that no adequate opportunity was afforded to them to explain the default committed by them in depositing the rent for the month of July by due date. Since the appellants had failed to comply with the order of the Rent Controller regarding deposit of rent, they had exposed themselves to the penal provisions as contained in section 13(6) of the Ordinance, and the fact that the respondent had received the rent from the Court or that he had not raised objection when default was committed by the appellants in the past on two occasions, would not amount to waiver on the part of the respondent, nor would it save the appellants from the legal consequence of non‑compliance of the order regarding deposit of rent.

5. There is no dispute that the appellants were required to deposit the rent for the month of July, 1974 before 15th of August, 1974, in accordance with the order passed by the Rent Controller. In the reply submitted by the appellants to the respondent's applications for striking off their defence, it was stated by them that they could not deposit the rent in the month of August as the civil Courts were closed and that they had deposited the rent for the month of July immediately on reopening of the Courts after summer vacation. The appellants further stated that they had not committed wilful default in depositing the rent for the month of July in the month of September. The appellants' plea that they could not deposit the rent for the month of July in August, 1974, as the civil Courts were closed on account of summer vacation, would have been acceptable if the appellants had deposited the rent immediately on re‑opening of the Courts. The appellants. A however, deposited the rent after 10 days of the re‑opening of the Courts i.e. on 11‑9‑1974, as is evident from the photostat copies of treasury challans placed on the file by the respondent. There is no explanation why the rent was not deposited on 2‑9‑1974 immediately on reopening of the civil Courts after summer vacation. Under these circumstances, appellants' failure to deposit rent in compliance with the orders of the learned Rent Controller was obviously wilful, and the learned Rent Controller was justified in striking off their defence. The learned Rent Controller had no option in the matter as has been held in Ghulam Muhammad Khan Lundkhor v. Sardar Ali P L D 1967 SC 530 Messrs Ansari Brothers v. Holy Trinity Church Trust P L D 1971 SC 700 and Syed Ghulam Shah Bokhari v. Muhammad Saeed Akhtar 1972 SCMR 428)

6. There is no force in contention now being raised by the appellant that they were not afforded an adequate opportunity to explain the circumstances under which they could not deposit the rent immediately on the reopening of the civil Courts, because what they had stated in their replies to the applications of the respondent for striking off their defence was that they had deposited the rent for the month of July immediately on the reopening of the civil Courts in the month of September, and as they had not mentioned the date on which the said deposit was made; the question of affording them opportunity to explain the circumstances for not depositing the rent on 2‑9‑1974, when the civil Courts reopened after summer vacation did not arise. Learned counsel for the appellants has referred to Muhammad Akram Shah v. Ghulam Nabi P L D 1976 Lah. 957 where it was observed that the question of default by the tenant under section 13(6) of the Ordinance was a question of fact and that it must be properly determined before such question could be foreclosed in appeal. This case is, however, distinguishable on facts as the tenant in that case had pleaded before the Rent Controller that it was on account of unavoidable circumstances that he could not deposit the rent on 4th of July and had to deposit it on the following day. In the present case, the only explanation given by the appellants for not depositing the rent for the month of July on the due date was that the civil Courts were closed for summer vacation in the month of August which was duly considered by the learned Rent Controller and rightly founded to be without substance.

7. It is not controverted by the learned counsel for the appellants that the plea that rent for the month of July used to be deposited by the appellants under the advice of their counsel has been taken up for the first time in this Court. According to him, there is no legal bar to raise this plea in second appeal. The fact that the appellants deposited the rent for the month of July, 1972 and 1973, alongwith the rent of the month of August of the said years before 15th of September and that the respondent had received the said rent without raising any objection, was sufficient to show that the appellants had in good faith accepted the advice of their counsel. I am unable to agree with the learned counsel for the appellants that the aforementioned plea can be' legally taken up in second appeal because in the first instance it is to be noticed that it is not purely a question of law which is being raised by, the appellants as there is nothing on the record to show that the appellants had in fact acted in accordance with the advice of their counsel and secondly the omission to raise this plea before the learned Rent Controller, where the appellants were represented by the same counsel who had allegedly given the wrong advice to them, supports the respondent's contention that the plea now being raised by the appellants is an afterthought. There are a number of authorities in support of the view that new points cannot be raised in second appeal, especially, when such points are not purely questions of law. Reference in this contention may be made to Badar Din v. Bahadur Ali P L D 1968 Lah. 573, Faqir Muhammad v. Jumma Khan P L J 1974 Pesh. 36, Chowdhury Nur Ahmad v. Gavenath Roy P L D 1964 Dacca 172 and Divisional Superintendent v. Muhammad Sharif P L D 1963 SC 340.

8. There is also no force in the appellants' contention that the respondent after withdrawing the rent could not raise the objection that the rent was not deposited in accordance with the order of the Rent Controller and that the appellants' defence was liable to be struck off under section 13(6) of the Ordinance, because the withdrawal of rent itself did not amount to waiver and that too on a point of law. Reference in this connection is made to Mst. Bachi Bai v. Ghulam Abbas P L D 1972 Kar. 278; Muhammad Younas v. Abdul Hamid PLD 1975 Lah. 1326 and Umar Din v. Ghulam Jilani P L D 1976 Lah. 567.

9. For the foregoing reasons, all the three appeals fail and are, accordingly, dismissed with costs. The appellants shall deliver the vacant possession of the rented shops in their occupation within two months from the date of this order. H.B.T./776/L?????????????????????????????????????????????????? Appeal dismissed.