1. MUHAMMAD HALEEM, J. The petitioners seek special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 17th of October, 1979, by which S. A. O. No. 732 of 1978 was dismissed.
2. House No. D-388, situate in Rawalpindi City, was transferred to the respondent by the settlement authorities and a P. T. O. Was issued in his favour on 28th of October, 1960. The petitioner became his tenant by operation of law; and as he failed to pay the rent, the respondent filed an ejectment application before the Rent Controller on 21st of October, 1964: By order dated 18th of October, 1976, the Rent Controller directed the petitioner to deposit the arrears of rent at the rate of Rs. 25 p.m. For the period from 21st of October, 1961 to 30th of December, 1976, before the 18th of February, 1977. The arrears amounted to Rs. 4,550; and as for the future rent, it was ordered to be deposited before the 15th of "each succeeding month". The deposit for the period prior to the commencing date of the arreas was not ordered as it had become time barred. It so happened that the petitioner deposited Rs. 765 and two sums of Rs. 170 each on 2nd of June, 1961, 20th of July, 1961 and 25th of September, 1961, respectively. He sought the adjustment of this amount in an application made by him on 14th of February, 1977, and further deposited Rs. 2,700 on 17th of February, 1977. According to the petitioner the amount thus exceeded the arrears which he was required to deposit as per order of the Rent controller; but the respondent contested the adjustment sought to be made and applied to the Rent Controller for striking off his defence. By order dated 13th of April, 1977, the Rent Controller struck off the defence as he held that the sum of Rs. 1,105 was deposited as rent of the premises before 21st of October, 1961 which could not be adjusted against the arrears of rent due for the period from 21st of October, 1961 till 30th of December, 1976.
3. On appeal, the first appellate Court, by order dated 29th of October, 1978, held that the sum of Rs.
4. 1,105, was liable to be adjusted against the amount of arrears and, accordingly, reversed the order of the Rent Controller. This conclusion was again reversed by the High Court in second appeal as it was of the view that it related to the period for which the rent had become time barred and, therefore, it could not be adjusted against the arrears of rent amounting to Rs. 4,550.
5. In seeking leave to appeal the learned counsel for the petitioner contended that the deposit of Rs.
6. 1,105 remained a tender until such time as it was not withdrawn by the respondent in terms of Explanation (b) to section 13(2)(i) of the West Pakistan Urban Rent Restriction Ordinance and hence it should have been adjusted against the arrears as such deposit did not amount of rent. This contention needs no further examination as the learned counsel conceded that the deposits were made for the rent due for the period preceding the commencing date of the arrears of rent and in this context it was not a case of a deposit of time barred rent. Therefore, the tender of the rent was clearly made against the rent due for that period which could not be adjusted against the arrears of rent for the subsequent period.
7. There is, therefore, no substance in this petition which is dismissed. However, we would grant four months time to the petitioner to vacate the premises subject to the payment of rent.