1979 PLP 650 (CLC)

(c) West Pakistan Urban Rent ResttrIction Ordinance (VI of 1959)- S. 13(6)-Default in deposit of rent-Tenant failing to deposit rent for month of vacation-Held, tenant entitled to assume that ;.,,, because of closure of Courts rent would not be accepted and default not committed in circumstances. Visumal Chatumal Khilnani v. All Bakhsh and others P L D 1968 Karl 521 and Muhammad Ishaq v. Abdul Haque and another P L D 1978 Kar. 898 rel. Muhammad Saiduzzaman Siddiqi for Appellant. Jan Muhammad Dawood and K. T. Doshi for Respondents.' Dates of hearing : 24th and 25th April 1979 . The facts giving rise to this second appeal are that a rent order was made by the Rent Controller on 2-4-1976 directing the appellant tenant to deposit arrears f rent from 19th January;. ,1969 to April, 1967, less Rs. 3,000 admitted to have been received by the landlord before 15th of July, 1967 and future rent before the 15th of every following month. In terms of this order the appellant was required to deposit rent for the month of May, 1967 before 15th of June, 1967 but he did not do so until 3rd of July, 1967. In so far as the arrears of rent is concerned the whole of it including the time barred rent was deposited by the tenant before 15-7-1967. The rent for the month of July, 1967 was deposited on 16 8-1967. In these circumstances the respondent-landlord moved the Rent Controller for striking off the defence of the tenant on the ground that there was default in depositing rent for the months of May and July 1967. The explanation that was 'given by the tenant in so far as rent for May 1967 is concerned was that June was summer vacation and he was under a bona fide impression that he could not deposit the rent in Court and. therefore, immediately on reopening of the Court on 1st of July 1967, his Advocate sought to deposit the same but as the file was not traceable he could not do so on that day. The succeeding day was a Sunday and the deposit was made on the day following and, therefore, there was no wilful default. As regards the rent for July, 1967 the explanation that was given was that 14th of July was a holiday rind, therefore, rent was sought to be tendered or. 15th but he could not do so as the day ended before tenant could succeed in depositing the rent date to rush in Court and, therefore, the rent was deposited on the next day.

2. Both the Courts below did not accept the explanation offered by the tenant and concurrently held that the tenant had wilfully defaulted in depositing the rent for the said two months May and July, 1967 and, therefore, struck off the defence of the tenant-appellant.

3. Mr. Saeeduzzaman Siddiqui, the learned counsel for the appellant firstly challenged the order made on the ground that the rent order dated 29-4-1967 was itself not in accordance with law and, therefore, its non compliance cannot result in striking off the defence of the tenant. The learned counsel pointed out that the tenant was by this order directed to deposit time barred rent which was beyond the jurisdiction of the Rent Controller in view of the judgment of the Supreme Court reported in Ashfaque Rehman v. Chaudhri Muhammad Afzal (P L D 1968 S C 230). That is undoubtedly so but in reply it was stated on behalf of the landlord, both by Mr. Jan Muhammad Dawood and Mr. Doshi that the law that prevailed on the date on which the rent order was made was the law laid down by the Full Bench of the High Court of West Pakistan reported in Asfaqur Rehman v. Ch. Muhammad Afzal and another (P L D 1965 Lab. 59) according to which the Rent Controller had the jurisdiction to direct the tenant to deposit time barred rent, fact, however, is that when the Rent Controller struck off the defence of the tenant, the law in force was the one laid down by the Supreme Court in the case referred to above P L D 1968 S C 230 and every Court in the country was bound to give effect to that judgment. It may also be noticed here that the Supreme Court had in appeal reversed the Full Bench Judgment of the West Pakistan High Court referred to above. Be that it may, the fact remains that on the day on which the defence sought to be struck off it was open to the tenant to show that the order of which non-compliance is alleged, as not in accordance with the law and should not be made the basis for striking off his defence. Admittedly on the day on which the defence of the tenant was struck off the law was that no time barred rent could be ordered to be deposited by the Rent Controller. Mr. Saeduzzaman Siddiqui invited my attention to a decision of the Supreme Court reported in Barkat Ali v. Messrs Pakistan Sanitary and Drainage Works (1974 S C. M R 75) in which case under similar circumstances, the High Court set aside the order of the first Appellate Court striking off the defence of the tenant. It is correct that there is no discussion in this case as to the effect of the Full Bench Judgment and that of the reversal Judgment of the Supreme Court, but the fact remains that in that case also when the rent order was made the law that prevailed was the Full Bench decision referred to above and so also on the date on which the defence was struck off but all the same the Supreme Court refused to interfere with the order made by the High Court that the rent order in so far as it directed the tenant to deposit time barred rent was without jurisdiction and there was, therefore, excess payment by the tenant, which covered the, subsequent .default of current month rent and there was, therefore, no wilful default on the part of the tenant and his defence could not, therefore, be struck off.

4. Mr. Doshi relied on a judgment of a learned Single Judge of this Court in Appeal No. .263/69 in which it was held that the relevant date is the date on which the rent order is made and if the order was valid when made the subsequent decision of the Supreme Court referred to above will not come to the assistance of the tenant who had failed to deposit the rent in terms of the rent order. It is not clear from their judgment as to whether or not the Supreme Court judgment was in the field as on the date on which the Rent Controller struck off the defence. As aforesaid I am of the view that the relevant date is when the Rent Controller struck off the defence of the tenant and on that day the Rent Controller is bound to follow the law l laid down by the Supreme Court which was that there was no jurisdiction in the Rent Controller to direct the tenant to deposit time-barred rent.

5. Faced with this situation Mr. Doshi the learned counsel for the landlord pointed out that the arrears of rent including the time barred rent in the present case was not deposited until 15th July 1967, while before that the tenant had already committed default in depositing the rent for the month of May, 1967. The argument was that the order of the Rent Controller was valid in so far as deposit of current rent was concerned irrespective of the fact that it may not have been valid in relation to deposit of time barred rent. The order, therefore, should be read in two parts and since in relation to one part it was valid and not complied with, eviction must follow. . Similar question was raised in a decision reported in Khair Muhammad Nizamani v. Abdul Quddus (P L D 1965 Kar. 367) and the argument was repelled by a learned Single Judge on the ground that the provisions contained in sub section (6) of section 13 of the Rent Ordinance are penal in nature and, therefore, strictly construed and the order of the Rent Controller must either 9 fail or stand depending upon its strict compliance with the said provision of law. I am in respectful agreement with this view that it is not open to the Court to bifurcate the order. In the alternatively I am of the view that an explanation had been offered by a person not less than an Advocate who has sworn an affidavit to the effect that he came to the Court on the reopening of the Court on Ist of July 1967 and could not deposit the rent as the file was not traceable, and since no rejoinder was filed to this counter affidavit there was no reason not to accept this explanation. As regards the failure of the tenant to deposit the rent in June, the month of vacation I refer to a case, reported in Visumal Chatumal Khilnani v. Ali Bakhsh and others (P L D 1968 Kar. 521) and Muhammad Ishaq v. Abdul Haque and another (P L D 1978 Kar. 898) wherein it has been held that a tenant was entitled to assume that because of the closure of Court rent would not be accepted during vacation.

6. The result, therefore, is that this appeal is allowed but in the circumstances there will be no order as to costs. Appeal accepted.