1993 PLP 1584 (SCMR)

Anwar H. Mir, Advocate‑on‑Record for Appellants. Nemo for Respondents. Date of hearing: 12th April, 1993. SAEEDUZZAMAN SIDDIQUI,J‑‑‑The appellants have called in question, in the above appeal through leave of this Court, the order passed by the learned Chief Justice of Peshawar High Court dismissing the appeal of the appellants and confirming the order of Rent Controller passed in the above case. Leave granting order in the above case is as follows:‑‑ "In this case of striking off of the defence of the petitioner/tenant in an urban property tenancy case', falling within the Cantonment area, leave to appeal has been sought on various grounds, inter alia that whatever was possible for the tenant side, for the purpose of depositing the rent was done but the deposit could not be effectuated within the prescribed time for reasons beyond the petitioner's control. They, amongst the others included. Firstly, that on the 4th of the month the deposit could not be made as it was Friday and on 5th i.e. the next available day the Bank having received the amount could not make it as a deposit on account of its own practice. The statement of the Bank Manager has been relied upon in this behalf. This and other features in the case require examination. Leave to appeal, accordingly, is granted.? Stay to continue in the meanwhile: The admitted facts in the case are that the appellants were required to deposit monthly rent in a rent case instituted against them by the respondent, under orders of the Rent Controller dated 27‑11‑1988 at the rate of Rs.50 per month from December 1988. The rent was to be deposited in Court for each calendar month before 5th of the following month. During the pendency of the rent case, the respondents moved an application before the Rent Controller for striking off the defence of appellants, alleging default in payment of rent for the month of December 1990. The appellants resisted the application and took the plea that they could not deposit the rent for the month of December 1990 on 4th January 1991, as it was a Friday, and when they deposited the rent in the bank on the next day, namely, 5th of January 1991, the banking hours were over, so the amount was shown credited in the books of bank on 6th of January 1991. In support of the above contention, the appellants examined the bank Manager who categorically stated in cross‑examination that the amount of rent was deposited by the appellants at the counter of the bank on 5th of January 1991. However, as the banking hours were over and transactions were closed at 10' clock, the amount deposited by the appellants was entered in the record on the following date namely 6th of January 1991. The learned Chief Justice of Peshawar High Court, while disposing of the contention of the appellants, that they deposited the rent on 5th of January 1991 but it was entered as having been paid on 6th because the dealing at counter had been closed at 10' clock on 5th January, observed as follows:‑‑ "

8. There is force in the arguments of the learned counsel for tie respondents that the tenant was not supposed to have waited for the last date for making the deposit and if he has done so, he has done it at his own risk. The statement of the Bank Manager who was neither the recipient of the rent nor scribe of the so‑called entry in the register, that the rent had been paid a day earlier but could not be deposited as the bank was closed, was correctly discarded by the learned Controller of Rent. There is nothing on the record as to whom in the bank the respondent had paid the monthly rent and in which capacity the rent was accepted and then deposited on the next day i.e. 6th of January. Burden of proof of all these facts was on the respondent which he failed to discharge. In Muhammad Anwar v. Abdul Shakoor, it was observed by their Lordships of the Supreme Court that points not raised in the. Courts below could not be permitted to be raised in appeal before the Supreme Court. Relying on such dictum when the respondent himself has set up a case that the rent of the month of December payable before 5th of January was in dispute while explaining the delay for 4th of January being Friday, he cannot be allowed to turn round and raise a new and quite different plea. Their Lordships further observed that when an order of default attains finality and the same is violated, the Controller of Rent 'is left with no alternative but to strike off the defence. In Salahuddin v. Additional District Judge and a Division Bench judgment of this Court fully supports the landlord‑respondent's case. In that case deposit of rent on 15th was held to be violative of the order of the Rent Controller directing such deposit before 15th of the month." With utmost respect, we are unable to subscribe to the above line of reasoning. The Manager of the Bank, where the appellants deposited the monthly rent, was examined in the case. He was an independent witness. He ~ad categorically stated before the' Rent Controller that although normally hen the transaction in the bank is closed at 01‑00 p.m. no further deposits are 'accepted, however, the Cashier at the counter in his discretion, keeping in view the difficulty of a client, may accept the payment but in such an event the transaction is recorded in the register on the following working day of the bank, The above statement made by the Bank Manager remained consistent and there is nothing on the record to show that either the Bank Manager was deposing falsely or had any motive to make the above statement. The learned Chief Justice proceeded in the case on the assumption that the Rent Controller did not believe the statement of Bank Manager that the amount was deposited by the appellants on 5‑1‑1991 in the late hours and therefore, it was shown as deposited in the record on 6‑1‑1991. The above assumption by the learned Chief Justice was not correct as the Rent Controller Commented on the evidence of Bank Manager in his order, dated 27‑11‑1991, as follows:‑ " I have perused the record and also heard the learned counsel. It has been alleged by the petitioners that the respondent deposited the rent on 6‑1‑1991 and thus violated the rent deposit order which stipulated that the respondent had to deposit the rent before 5th of each month. I have also seen the record furnished by the Manager, National Bank of Pakistan and his evidence as well. In his evidence the Manager admitted that‑‑ It shows that rent was received by the bank on 5‑1‑1991 in late hours but entered on 6‑1‑1991 and thus violated the rent deposit order which stipulated that the respondent had to deposit the rent before the 5th of each month." The above observations of Rent Controller clearly show that he did not disbelieve the statement of Bank Manager regarding deposit of amount on 5‑1‑1991 but he struck off the defence of appellants because he reached the conclusion that the deposit was not in accordance with the rent order which contemplated deposit before 5‑1‑1991. The learned Chief Justice in the impugned order also observed that the appellants should not have awaited until the last date, for making the deposit of rent. The appellants, under the law, could make the deposit of rent up to 4‑1‑1991. The fact that the appellants waited till last date to deposit the rent could not be construed as a circumstance to prove his default or contumacy in complying with the order of deposit of rent. If a person under the orders of the Court or by law is required to do or perform an act by a particular day or date, he has the option either to do or perform it before or by the day or date fixed in this behalf. If the last date or day available to him to perform the act, happens to be a closed or public holiday, he is entitled to do or perform the act on the following day. Again the last date fixed for performance of the act will be available to him as a whole and he shall be deemed to have done or performed the act, if he establishes that he performed it before the date changes. Similarly, if the date fixed for performance of an act happened to be a closed holiday, the whole of the following day will be available for performance of the act. In the case before us, the rent for December 1990 could be deposited under the law up to 4‑1‑1991. 4th January 1991 being the Friday, a closed public holiday, the appellants could deposit the rent on 5‑1‑1991. The evidence on record shows that the appellants deposited the rent with the bank on 5‑1‑1991 though after banking hours namely after 01‑00 p.m. Since the date changes after 12 p.m. the appellants could deposit the rent before 12 p.m. on 5‑1‑1991. The fact that the bank recorded the transaction on 6‑1‑1991 because it was deposited on 5‑1‑1991 after the banking hours were closed, could not render the deposit made on 5‑1‑1991 invalid. We, accordingly, hold that the deposit of rent by the appellants on 5th of January 1991 though entered in the bank records as on 6th of January 1991 because it was deposited after closing hours of the bank, amounted to due compliance of the order of the Rent Controller and as such his defense could not be struck off for non‑compliance of the order of the Court. We, accordingly, allow the above appeal, set aside the orders of the Courts below and remand the case to the Rent Controller for disposal in accordance with the law. There will be no order as to costs in the circumstances of the case. A.A./M‑1772/S ????????????????????????????????????????????????????????????????????????????????? Appeal allowed,