1. ' This second Appeal under section 15 (4) of the West Pakistan Urban, Rent Restriction Ordinance (hereinafter referred to as the Ordinance) has been filed by Mst. Fatima Bai and seven others to challenge an order of the Civil Judge and Controller, Karachi, whereby the appellants were ordered to be evicted which was affirmed by the 1st Additional District Judge, Karachi, whereby the appeal against the order of the Civil Judge was dismissed.
2. ' I have heard Mr. Nisarally for the appellants, and Mr. Karim Siddiqui for the respondents.
3. ' The brief facts of the case are that the appellants are the tenants of respondent Rehmatullah and two otheRs, The respondents filed a rent application, bearing No, 986/1968, seeking eviction of the appellants on the ground of default in payment of rent. On 8-10-1969, an order for tentative deposit of rent, pending the proceedings, was passed by the 1st Civil Judge. By this order, the appellants were directed to deposit the arrears of rent. The relevant portion of the order is reproduced hereunder :- "Hence tentative rent at Rs, 25 p. In. Is fixed. The applicant is entitled for 3 years rent prior to filing of application which was filed on 23-4-1968. The rent from 1-5-65 to end of September 1969, total amounting to Rs, 1,325 be 'deposited in Court subject to adjustment of amount paid or deposited in Court during this period before 15-12-69."
4. The order was passed on 8-10-1969, and an appeal was filed, bearing No, R. A. 718/1969, before the Additional District Judge. In this appeal, the order of the Rent Controller was stayed on 27-11-1969.
5. This appeal was ultimately dismissed by the Additional District Judge on 12-1-1971. I am informed by counsel on either side that a Second Appeal was also filed in the High Court, and the same was dismissed in limine. It would thus seem that the order for deposit of the arrears of rent had acquired finality. I am stressing this, because, Mr. Nisarally has persuaded me to reopen the question about the intention underlying that order in the present proceedings, but in my view I am prevented from questioning this order for deposit of rent it seems that the order was not complied with, so that the Rent Controller passed an order of eviction. Even this order was challenged before an Additional District Judge, but without success, and hence this Second Appeal.
6. ' The short point in this case is, whether the appellants have committed default in compliance with the order dated 8-10-1969. Some dates need to be mentioned. The order was passed on 8-10-1969, and the appellants were directed to deposits a sum of Rs, 1,325, less such amounts as had been deposited between May, 1965 and September, 1969, by 1512-1969. A stay was granted on 27-11-1969 by the Additional District Judge on an appeal by the appellants, but this appeal was dismissed on 12-1-1971. It may be mentioned that a Second Appeal had been filed, but the same was dismissed in limine. Admittedly, a sum of Rs, 820 only was deposited on 2-9-1971.
7. ' On computation, it would appear that, while the deposit was to be made by 15-12-1969, and if stay had been granted before 15-12-1969, such period, during which the order for deposit of rent had been stayed, would need to be excluded. It would mean that the period between 27-12-1969 viz. The date of grant of stay and 12-1-1971 viz. The date of dismissal of the appeal, would have to be excluded. In that case, the period already allowed to pass before grant of stay would have to be considered in conjunction with the period following 12-1-1971, when the appeal was dismissed, and thereafter so many days have to be allowed as would be equal to the time that was originally allowed by the Controller for deposit rent. Computing this time in accordance with the decision of Supreme Court in the Messrs Ansari Brothers v. Holy Trinity Church Trust (1) the amount had to be deposited by 30-1-1971. Even Mr. Nisarally states that, if the case of Ansari Brothers is to be followed which, I must say, I am bound to follow, the time by which the arrears should have been deposited was 30-1-1971. Admittedly, a default of three days has been committed. What is more that the amount deposited was Rs, 820, whereas by the rent order, the appellants C had to deposit Rs, 1,325 subject to adjustment of amounts, which are paid, or, deposited in Court as between May 1965 and September, 1969. Along with the stay application, the appellants had filed a list, showing the amounts deposited by them in Court. This list shows that a total amount of Rs, 1,402 had been deposited as between 3-4-1963 and 3-10-1969. The first three months deposited earlier than may 1965 have, therefore, to be excluded, and therefore, during this period, viz. From May 1965 to September 1969, the total amount that has been deposited is Rs, 1,072. Even if full credit is given to the appellants for these deposits, still the amount that was to be deposited on, or, before 30-1-1971 was Rs, 1,325 out of which only Rs, 1,072 had been paid, or deposited in Court until September, 1969.
8. Therefore, a sum of Rs, 253 was outstanding. Admittedly, no amount had been deposited before 30-1-1971. This amount of Rs, 1,402 deposited in Court also includes a sum of Rs, 273, which the list appended to the stay application before this Court does not show the date of payment. Looked at from any angle, the point is clear that the appellants have committed a default.
9. ' The next point urged by Mr. Nisarally is that the default is not wilful. He states that the order of the Rent Controller was vague, as it did not specify the exact amount that had to be deposited. I am afraid I cannot reopen that case, as this order had acquired finality. Mr. Nisarally has additionally contended that the default had occurred on account of interpretation of the judgment in the Lahore High Court case of Holy Trinity Church Trust v. Ansari BrotheRs, Mr. Nisarally wishes me to construe this judgment to mean that, if an order for deposit of rent is stayed by the Appellate Court, then, on the dismissal of the appeal by the appellate Court, time for deposit will start running afresh. I am afraid this does not appear to be the interpretation of the words used by the learned Judge in the Lahore High Court case. In fact, this case had been taken in appeal before the Supreme Court and the Supreme Court judgment is reported in PLD 1971 SC 700. The appeal was dismissed, and, in that appeal, the judgment of the learned Single Judge of the Lahore High Court was upheld. The Supreme Court judgment clearly states that such time as had been allowed to pass before filing of appeal and obtaining of stay from appellate Court has to be deducted out of the total time granted for making deposit. I am afraid, the interpretation that is being placed by Mr. Nisarally on the Lahore High Court judgment in the case of Holy Trinity Church Trust is wrong.
10. ' Admittedly, a default has been committed, and there appeared to be no grounds for condoning the delay. This matter has been pending for the last thirteen yeaRs, I am informed that, earlier to this case of ejectment, there was litigation between the parties in regard to the house, which is in dispute.
11. ' I dismiss this appeal with costs.
12. ' By consent, the appellants are granted for months' time to vacate the premises.