1. NASiM HASAN SHAH, J: This appeal by leave of this Court is . Directed against the judgment passed on 16-2-1980 by a learned Singe Judge of. The Lahore High Court in S. A. O. No. 213 of 1977.
2. The facts briefly are that the respondent filed a petition for ejectment of the appellant from House No. K/107-B, Samanabad; Lahore, on the grounds of default in payment of rent and personal requirement. The relevant order, with which we are concerned in this appeal, is the order, dated 22- 1-1974 passed under section 13(6) of the Rent Restriction Ordinance by the Rent Controller requiring the appellant to deposit an amount of Rs. 450 towards the arrears of rent by 9-2-1974. The appellant challenged this order by filing a petition before the Additional District Judge and three, days before the expiry of the time fixed for making the said deposit an order was passed on 6-2- 1974 by him staying the operation of the order dated 22-1-1974 passed by the Rent Controller. The appeal remained -pending in the Court of the Additional District Judge until 24-2-1976 when it was dismissed as in--competent. No order for extending time for the deposit of the rent was passed by him. However, the parties, were ordered to appear before the Rent Controller on 3-3-1976. The appellant appeared before the Rent Controller on 28-2-1976, which was already fixed by him, while the determina--tion of the appeal before the Additional District Judge was being awaited.
3. On that date, the appellant informed the Rent Controller about the dismissal of his appeal, who passed an order allowing him time to deposit the arrears of rent by 19-3-1976. The rent was deposited by him on 18-3-1976.
4. However, when the case came up for arguments before the Rent Controller on 25-6-1976, the respondent submitted that the order dated 28-2-1.976 passed by him allowing time to the appellant for deposit of the rent up to 19-3-1976 was illegal and that the earlier order of deposit (dated 22-1-1974) not having been complied with, the defence of the tenant was liable to be struck off: The appellant, thereafter, on 8-6-1976, submitted a miscellaneous application before the Rent Controller to counter the above contention contending that the Rent Controller was competent to extend the time for deposit of arrears of rent. Alternatively, as he believed bona fide that, in the circumstances, a fresh order of depositing the arrears of rent was to be made, the default, if any, in depositing the arrears of rent was unintentional and, therefore, excusable.
5. The Rent Controller, by his order dated 28-7-1976, held that the original order of deposit made on 22-1-1974 could not be reviewed and had to be complied with. It would have been complied with if the: appellant had deposited the arrears after the dismissal of his appeal by the Additional District Judge within the time left for depositing it on the date the stay order was granted by the Additional District Judge. Hence the application dated 8-6-1976 could not be accepted and his defence was liable to be struck off. The ejectment petition, filed by the respondent, was accepted and the tenant ordered to vacate the premises.
6. The appeal of the appellant against the above order was rejected by the Additional District Judge on 23-2-1977 on the ground that after the dismissal of the tenant's appeal on 24-2-1976 he could have made the deposit of the arrears of rent upto 21-2-1976 and there was no provision in the law authorising the. Rent Controller to extend the time as allowed by him, vide his order dated 28-2- 1976.
7. The second appeal was dismissed by the High Court holding that the appellant (tenant) ought to have complied with the order under section 13(6) of the Rent Restriction Ordinance during the remaining period after deducting the period for which the stay remained operative, under the orders of the appellate authority. Reliance was placed on Messrs Ansari Brothers v. Holy Trinity Church Trust (1). This order was passed on 16-2-1980. Hence this appeal by leave to this Court.
8. We have heard Mr. Abdul Majid Sheikh. On behalf of the appellant and Mr. Ghulam Haider Alghazali, Advocate, on behalf of the respondents and have come to the conclusion that no interference is called for in the orders passed by the Courts below. We are of the view that the finding that the Rent Controller could not extend the time is correct as it was only the Appellate Court, while dismissing the appeal or by a supplementary order, who could have extended it. Hence the order passed by the Rent Controller dated 28-2-1976, allowing time to the appellant after dismissal of the appeal, was rightly held to be illegal.
9. See Shah Wali. v. Ghulam Din alias Gaman (2). Also see Murad Ahmad and others v. Bashir Ahmad
(3) and upheld by this Court in Muhammad Shabbir and others v. Bashir Ahmad (4). These decisions show that the appellate Court can grant "reasonable time" for performance of an act ordered by the original Court, the operation of which is stayed, but the appeal ultimately fails and the time fixed for the performance of the act, has, in the meanwhile, expired.
(1) PLD 1971 SC 700 (2) PLD 1966 SC 983
(3) PLD 1973 Lah. 481(3) 1974 SCMR 24 As for the time to be granted in such a situation, light is thrown on this question by the judgment in the case of Holy Trinity. According to the judgment of the High Court in this case PLD 1963 Lah. 489 it was observed that the dismissal of appeal brings about the restoration of the original decree, with all its contents and provisions. The time for the performance of the act, which had been suspended during the pendency of the appeal is revived from the date of the appellate order to be performed within the period equal to that as enjoined in the original order. Applying this rule to the facts of the present case, it will be observed that the appellant was granted 18 days by the order dated 22-1-1974 within which the arrears of rent were to be deposited. The operation of this order was suspended by the Additional District Judge on 6-2-1976 but the appeal ultimately failed.
10. Hence after the dismissal o B the appeal, the original order dated 22-1-1974 got restored. Since 15 day had already gone-by out of the period granted for depositing the rent and only three days remained, the deposit could only be made in the aforesaid three days i.e. Up to 27-2-1976. . The rule, referred to above, as enunciated by the High Court, was upheld by this Court, on appeal : Messrs Ansari Brothers v. Holy Trinity Church Trust. This Court, in the course of its judgment followed with approval the observations made by this Court in the case of Shah Wall v. Ghulam Din alias Gaman and another. Herein; the majority held that as the operation of the decree passed by the Court of first instance is not automatically suspended, on the mere filing of an appeal therefrom unless the time fixed for the deposit of the 'pre-emption money is varied in the order passed on appeal the successful pre-emptor can disregard the time limit fixed in the decree at his peril. He might, of course, consider that the time allowed for payment by the trial Judge was too short, or that the pre-emption money fixed was excessive. In such a case, be might anticipate that the appellate Court would interfere, in the course of the appeal, with the decree and might give an extension of time for deposit of the correct amount. But if his anticipation is not realised in this regard and. He has failed to deposit the money within the time fixed by the Court of fist instance, the result must be that his suit would be dismissed.
11. In the present case, as the appeal of the appellant against the order dated 22-1-1974 was dismissed on 24-2-1976 and the Appellate Court did not extend the time for deposit of the arrears of rent, one view could be that the time for deposit, having expired in the meanwhile and the appeal having failed and the appellant having disregarded the time limit fixed in the order of the trial Court at his pearl, his defence could be struck off for non-compliance of the original order. But even if the rule of "reasonable time" was adopted in that case also the deposit could have been made only within the time fixed in the original order after deducting the time spent In the Appellate Court. The appellant, on this basis, could, thus, have made the deposit only within time that was still left on the date the stay was granted and the appeal remained pending until it was finally dismissed, namely, three days. As the appellant did not do so, his defence was rightly struck off an d~ the said order dees not require any interference. Even if the Rent Controller had any power to grant-time for making the deposit, after the dismissal of the. Appeal, the same could not be more than three days. Therefore, his order dated 28-2-1976 for depositing the arrears of rent by 19-3-1976 was an unreasonably long time and could be struck down on that ground also. It may be recalled that the ejectment petition was filed on 23-6-1972 and the order of deposit was made on. 22-1- 1974. The appellant wasted another two years and more by filing an incompetent appeal before the Additional District Judge. Hence the grant of another 19 days besides the four days wasted already to make the deposit at this stage, when in the original order dated 22-1-1974 itself only 18 days were granted, was wholly unjustified. This Court in Haji Ishtiaq Ahmad and others v.
12. Bakhshaya and others (1976 SCMR 420upheld the order of the High Court, which set aside the order of the` Appellate Court granting an unreasonably long period of time after dismissing the appeal.
13. The plea that the default committed by the appellant was unintentional because he was under the bona fide impression that a fresh order was to be made by the Rent Controller, as the time granted to him for deposit of the arrears of rent in the earlier order dated 22-1-1974 had already expired during the pendency of the appeal, is of no avail. The law on this question had already been sufficiently clarified as early as 1963, vide the judgment in the Holy Trinity case (PLD 1963 Lab. 489), which view was upheld by this Court, on appeal, the same case reported in Messrs Ansari Brothers v. Holy Trinity Church Trust D Consequently, the conduct of the appellant in 1976, in not depositing the arrears of rent within the time left over in the time granted for this purpose, vide order dated 22-1-1974, after excluding time spent in the prosecution of the appeal, cannot be regarded as bona file. The same view has been taken by us in Civil Appeal No. 69 of 1974 Khurshid Akbar v. Mian Manzur Ahmad and another, decided on 2-5-1981.
14. The overall result is that. This appeal fails and is hereby dismissed, but the parties are left to bear their own costs.