1993 PLP 535 (SCMR)

Date of hearing: 21st October, 1992. NASIM HASAN SHAH, J.‑This appeal by Malik Shoaib Anwar is directed against the judgment of a learned Single Judge of the Lahore High Court dated 22‑2‑1992 dismissing his writ petition.

2. The relevant facts briefly stated are that Malik Shoaib Anwar appellant filed 34 ejectment petitions against different tenants, including Bashir Hussain Shami, respondent No.l, on the ground of default in the payment of monthly rent and damage to the property. On 7‑12‑1989 the learned Rent Controller passed an order under section 13(6) of the Rent Restriction Ordinance, 1959 calling upon all the tenants to deposit the monthly rent before the 15th of the month following. After the evidence of the appellant was closed in all the cases, he filed applications to the effect that all the tenants had not been paying the rent as ordered and had, accordingly, violated the order of the learned Rent Controller passed under section 13(6) of the Ordinance. After scrutiny of the rent receipts deposited by the tenants, the learned Rent Controller found that the exact position was that while all the rents had been deposited in time, the rents for the month of February, 1989 were, however, deposited on 15‑3‑1989 with a delay of one day, which default not being condonable he passed a consolidated order dated 10‑7‑1991 striking off the defence of all the tenants and called upon them to vacate their respective premises. Feeling dissatisfied, all the tenants preferred appeals to the District Judge, Lahore, and during their pendency filed applications for amendment of the grounds of appeals. The learned District Judge, vide his consolidated judgment dated 2‑12‑1991, which covered all the appeals, accepted the application under Order 6, Rule, 17, C.P.C. and also the appeals and set aside the judgments of the Rent Controller. The cases were remanded to the Rent Controller with the direction that he should proceed to decide the same on merits. In his judgment, the learned District Judge held that the real contest between the parties was only with regard to late deposit of the rent for the month of February 1989 and as the affidavits filed by Sh. Nazir Hussain on behalf of the tenants were not controverted by the appellant landlord, according to which he had presented as many as 102 challans in all the 34 ejectment petitions before the learned Rent Controller, but the Reader of the Court had returned the same to him at 1‑00 p.m. on 14‑3‑1989 at a time when the bank was closed and, therefore, deposit could not be made on the 14th of March, 1989. These averments contained in the affidavit were found to be believable and inspiring confidence. He, therefore, felt that no default had taken place in the deposit of the rents for the month of February, 1989. Aggrieved by the said judgment, the appellant filed 34 writ petitions against the same which were all dismissed in limine by a learned Single Judge of the Lahore High Court on 22‑2‑1992. He then moved this Court for grant of leave.

3. Leave was granted to consider whether the view taken by the learned District Judge and upheld by the High Court was consistent with the view expressed by this Court in the case of Khadim Hussain 1973 SCMR

243. We have heard the learned counsel for the parties and perused the relevant record. In our opinion, the question whether the tenant is guilty of default and has committed a violation of the Court's order passed under section 13(6) of the Ordinance can only be answered by an examination of the special facts and circumstances of each particular case and no hard and fast rule can be laid down in such matters. The learned District Judge in the course of his judgment has observed:‑‑ "Here it would be pertinent to mention that the respondent (appellant herein) is owner of a big building known as Noor Muhammad Building which houses as many as 33 appellants as tenants. They had deputed Nazir Hussain on their behalf to deposit the rent in the Court. He has deposed that on 14‑3‑1989 he had presented the challan forms in all the 34 ejectment petitions before the learned Rent Controller but the Reader of the Court returned him the challan forms which were 102 in number (34 x 3) at 1 p.m. on that day and by that time the bank was closed. It caters to common sense that the learned Rent Controller must have n busy in Court on that day and he had to reserve lot of time to sign 102 challan forms. This affidavit has not been controverted by the respondent which otherwise is believable and inspires confidence." ' (Underlining is ours). The judgment of the learned District Judge was questioned by a writ petition in the Lahore High Court and the only criticism to the above approach is made as follows: "That the learned District Judge, Lahore has erred in relying on an affidavit submitted by Nasir Hussain. The said affidavit has been filed to cover up the late deposit .of rent and is afterthought and has been filed at belated stage. No such plea was taken before the learned Rent Controller before passing the order of striking off the defence of the respondent. Moreover, the respondent did not file any application to condone the delay of one day in depositing the rent before the learned lower Court before passing the eviction order:'

4. The statement made in the affidavit that 102 challan forms were submitted before the Rent Controller on 14‑3‑1989 (in all the 34 ejectment petitions) that they were returned at 1‑00 p.m. and that by that time the Banks were closed; hence the deposit was made the following day 15‑3‑1989 has not been challenged. Only technical and legal pleas have been raised criticising the conduct of the Court in taking note of these averments. But in the absence of any challenge to the correctness of these averments, we do not think that the findings recorded by the authority exercising jurisdiction under Rent Restriction Ordinance, who is required to decide such matters in accord with the recognised legal principles and the broad rules of natural justice and fairness can be invalidated on legalistic and hyper-technical objections. The High Court was, therefore, right in not interfering with the order of the District Judge in writ jurisdiction and this appeal directed against the said two orders, must, therefore, also fail. The matter shall, as directed by the learned District Judge, go back to the Rent Controller for decision of the case on merits. In view of the time already spent on this litigation, he should give priority to these cases and dispose them of within 3 months. The upshot is that this appeal stands dismissed in the above terms, leaving the parties to bear their own costs. AA./S‑719/S Appeal dismissed.