' This is an appeal against the order of Malik Gulbaz Khan, District Judge, Lahore, dated 3rd December, 1971, which was passed by him under section 15 of the West Pakistan Urban Rent Restriction Ordinance.
2. Briefly, the facts are that respondent submitted an application for ejectment of Mohammed Usman on grounds of default in the payment of rent from July 1969 to the date of application (12th January, 1970), failure to abide by the conditions of the tenancy, making alterations in the property without consent of the landlord and requirement of the premises in good faith for personal use of the landlord and her children.
3. On the 2nd of July, an order under section 13 (6) of the above Ordinance was passed by the rent controller directing the appellant to deposit the arrears of rent amounting to Rs, 5,400 by the 2nd of September, 1970 and to continue depositing the future rent including the, rent for the month of July, 1970 before the 15th of each succeeding month.
4. An application for striking off the defence of the appellant for his failure to comply with the order of deposit of arrears of rent was made on 27th October, 1970 of which notice was given the same day to the appellant. Thereafter the appellant submitted an application for extension of time. It may be stated that the arrears of rent as well as the rent for the month of July, 1970 was deposited on 3rd September, 1970 while the rent for the month of August, 1970 was deposited on 15th September, 1970. There was, thus, default in the payment of arrears as well as the rent for the months of July and August, 1970. In his application for extension, the delay in the deposit of arrears was tried to be explained. It was stated, that through an oversight the appellant could not deposit the entire amount by the 2nd September, 1970 and deposited it on 3rd September 1970. He, therefore, prayed for extension of time for one day.
5. The appellant also submitted a reply to the application of the landlord for striking off the defence on 11th November, 1970 in which he stated that the Courts were closed in month of August, 1970 on account of summer vacations and opened on the 1st of September, 1970. He further stated that the sickness at home coupled with oversight prevented the respondent from depositing the rent on 2nd September, 1970 which was deposited on 3rd September, 1970. Regarding the delay in the deposit of the rent for the month of August, 1970 it was stated that the rent was to be deposited by the 15th September, 1970 on which date it was so deposited.
6. The rent controller condoned the delay in the deposit of the arrears but he found himself unable to extend the period for deposit of rent for which there was a statutory provision that it should be deposited before the 15th of each succeeding month. He, therefore, struck off the defence of the appellant and directed him to be evicted. His order is dated 11th November, 1970.
7. The appellant filed an appeal before the learned District Judge in which he changed his ground for deposit of rent for the month of July, 1970 and stated in para. 4 (a) that the rent could not be deposited on account of the closure of the Courts in vacations in the month of August, 1970 and at the earliest it could be deposited on 1st September, 1970. It was then stated that "the appellant inspected the file on 2nd September, 1970 and got the challan signed and deposited the rent for the month of July, 1970 on 3rd September, 1970", Similarly a fresh ground was added regarding deposit of the rent for the month of August, 1970. It was stated that it was due to the sickness at home.
8. The learned District Judge found that the appellant had committed the default and, therefore, dismissed his appeal on 3rd December, 1971.
9. The learned Counsel for the appellant contended that the rent for the month of August, 1970 could not be deposited in time on account of oversight. Regarding the deposit of rent for the month of July, 1970 he submitted that it was deposited on 3rd after inspection of the file which was conducted on the second of September, 1970. He relied upon Visumal Chatumal Khilnani v. Ali Bakhsh and others (1) and Sarfraz Khan v. Mohammed Abdul Raul' (2) in which there is an observation that the tenants normally misconstrue the direction for deposit of rent and treat it as if the order is for deposit by the 15th of the next month and not (1) PLD 1968 Kar. 521 (2) PLD 1969 Kar. 176 before the 15th. In these circumstances, in the above two cases, it was held that there was no default.
10. These authorities will not apply for the reason that it is now too late in the day for such a plea to be taken by the tenant when already this question had been resolved by judicial precedents about ten years ago. A It is the duty of the counsel in each case to inform his client about this provision and I have no doubt that the Counsel do perform this duty. In these circumstances, it is not possible for me to agree that there can be any oversight in this matter.
11. The appellant has, however, in the present case, been changing his grounds. In his reply to the application under section 13 (6) filed by the respondent, he stated that the rent for the month of July could not be deposited on account of illness at home and oversight, but in grounds of appeal before the learned District Judge he changed this ground and stated that he had to deposit the rent by the 1st of September, 1970 but after inspecting the file on 2nd September, 1970 he got the challan signed on 3rd September, 1970. He did not make any reference to the illness or to oversight.
12. Similarly, in regard to the delay in the deposit of rent for the month of August, 1970 he had stated in his reply before the rent controller that he had deposited in time, i,e, by the 15th July, 1970 on the basis of which the argument of oversight has been advanced by the learned Counsel for the appellant, but in his grounds of appeal before the learned District Judge, he stated that it was on account of sickness at home that the deposit was made late by one day.
13. In these circumstances, it is not possible to believe the contention of the appellant and to rely upon the grounds taken by him. The appeal is, therefore, liable to be dismissed on merits.
14. Even otherwise, the appeal is barred by time. The order of the learned District Judge was passed on 3rd December, 1971. After computing the period spent in obtaining copy of the order of the learned District Judge, the appeal ought to have been filed by the 18th of January, 1972, but, though it was filed on 15th January, 1972 it was instituted without the certified copy of the order of the rent controller which ought to have been filed in view of the provisions of Order XLII, rule 1, C. P. C. He submitted an application that the copy shall 'be filed as soon as it is obtained. It appears that this delay was not condoned by the Court since this fact was not brought to the notice of the Honourable Judge hearing the appeal in motion. The same day that the appeal was filed, an application for certified copy of the rent controller's order was filed. That copy was obtained on 10th February, 1972 after the expiry of the period of limitation. It was, however, filed in Court on 15th February, 1972. The appellant is not entitled to compute the period spent in obtaining a certified copy of the order of the Rent Controller. The appeal was, therefore, barred by time. There is no application under section 5 of the Limitation Act, nor has any explanation been given for this delay.
The appeal is also, therefore, liable to be dismissed as barred by time.
15. I, therefore, dismiss this appeal with costs.