' This Second Appeal is directed against the order passed on 4th December. 1977 by the learned District Judge, Mirpurkhas in Rent Appeal No, 75/1976 whereby the said appeal was dismissed and the order of 14th September, 1976 passed by the learned. Rent Controller was maintained.
1. The brief facts of the case are that the appellant is the tenant of the respondent in respect of House No, 1136/58-24-C Thomasabad, Mirpurkhas on monthly rent of Rs,
125. The appellant himself is the owner of another house of his own adjacent to the abovementioned rented premises.
' An application for ejectment was filed by the respondent against the appellant on 12th August, 1975, which was registered as Rent Application No, 47/75, in the Court of Rent Controller. Mirpurkhas under section 13 of the then West Pakistan Urban Rent Restriction Ordinance, 1959 on a number of grounds including default and personal requirement.
' The aforementioned case was contested by the appellant.
2. During the pendency of the proceedings on 9th February, 1976 the learned Rent Controller by an order passed by consent of the parties directed the appellant to deposit arrears of rent amounting to Rs, 750 within 30 days of the passing of the order and to continue to deposit future rent from 1st February, 1976 (payable in March, 1976) at the rate of Rs, 125 per month before 15th of every calendar month.
3. On 24th July, 1976 the respondent/landlord moved an application under section 13 (6) for striking off the defence of the appellant/tenant on the plea that he had failed to deposit in time the monthly rent for May, 1976 and instead of depositing on 1st July, 1976 he deposited the said amount on 13th July, 1976 and thus failed to comply with the order dated 9th February, 1976. In opposition, the appellant filed objections wherein he pleaded that during the month of June, the Civil Court was closed and that on 1st July, 1976 for deposit of rent for the month of May, 1976, he approached the Nazir's Office but was told that he should come on some other day and he was also told that he may deposit the rent on any day before 14th July, 1976. An affidavit in support of these objections was also filed wherein the same plea was taken as stated above.
' The learned Rent Controller after hearing the parties by order passed on 15th September, 1976 did not accept the explanation of the appellant and accordingly allowed the application, struck off the defence of the appellant/tenant and he was directed to put the landlord in possession of the premises forthwith.
4. Against the above order, Rent Appeal No, 47/76 was filed which was also dismissed by the learned District Judge, Mirpurkhas, by order passed on 4th December, 1977.
5. The learned counsel for the appellant has challenged the findings of the two Courts below and submitted that the appellant had approached the Nazir's Office on the opening of the Court on 1st July, 1976 but he was informed by the office that he should deposit the rent afterwards up to 14th July, 1976. The learned counsel submitted that no counter-affidavit in rebuttal was filed and thus the explanation given by the appellant ought to have been accepted.
6. I am however unable to accept the plea raised on behalf of the appellant as above. It would be seen that the order passed by the Rent Controller on 9th February, 1976 had given express direction as to the deposit of future rent which time under the law was statutorily fixed under section 13 (6) of the Ordinance of 1959. It was the obligation of the tenant to have deposited and complied with the said order and accordingly rent for the month of May, ought to have been deposited before 15th June, 1976, which if could not -be done due to the closure of the Court on account of Summer Vacation, should have been deposited on the first day on the opening of the Court on 1st July, 1976.
The appellant has tried to put forward the following plea :- "That I approached Nazir's Office in June and then again on 1st July, 1976 for deposit of rent for the month of May. 1976 but I was told that I should deposit afterwards up to 14th July, 1976 and therefore the default is neither intentional nor deliberate".
7. As regards the statement to the effect that the appellant had approached the Nazir's Office in the month of June, 1976 but amount was not accepted it may be noted that the learned lower Appellate Court itself had observed that the Nazir was accepting rent even in the vacation and concerned parties were depositing rent.
However even if the Courts were closed it cannot be said that the office of the Nazir of the Civil Court was also closed. In fact the learned lower appellate Court has taken notice of the fact that Nazir's Office was B open to receive deposit of rents. It is therefore evident that failure to deposit rent of May, 1976 before 15th June, 1976 was a clear case of noncompliance of the order passed by the Rent Controller.
8. As regards the statement made by the appellant that he had approached the Nazir's Office and he was told by the office that he should come on some other day and further told him that he should deposit rent on any other day before 14th July, 1976 I find that this explanation has not been accepted, by both the Courts below. These concurrent findings therefore cannot be challenged in this Court.
Moreover the appellant has neither given the name of the person or clerk of the Nazir's Office who allegedly advised him to come on some C other day and deposit rent on any day before 14th July, 1976 nor the said clerk was summoned to give evidence.
' The negligence on the part of the appellant is further evident from the fact that instead of consulting his own Advocate, he chose to rely upon the alleged advice given by some clerk of the Nazir's Office. This cannot however exonerate him from his liability for non-compliance of the directions given under section 13 (6) by the Rent Controller. I may refer here to the case of Nabi Bakhsh v. Khan Muhammad Sarfaraz Khan. In the said case condonation of delay in filing petition1 for leave to appeal before Honourable Supreme Court was ought on the ground that the said delay was caused due to erroneous advice given by counsel in Multan that Supreme Court registry was closed during summer vacation and the petition could be filed on the opening of the Court. The Honourrable Supreme Court while observing that the registry remains open in summer vacation on week days except on Saturday and Sunday, further held :- "But even if the petitioners erroneously believed that it was closed the time for filing the petition had already run cut. It also does not absolve the petitioner from blame if instead of seeking advice from a proper source he chooses to consult a District Court's lawyer who is not familiar with rules and procedure of the Court."
' The petition for leave to appeal was dismissed as barred by time and the ground urged in support of piea or for condonation of delay was rejected.
9. Reference may also be made to the case of Allah Bux v. The Custodian of Evacuee Property West Pakistan, Lahore, where the condonation of delay was sought on the ground that the same was caused due to wrong advice given by the counsel. The Honourable Supreme Court dismissed the petition as barred by time with the observation :- "That the wrong advice of a lawyer cannot be regarded a good sufficient cause for exclusion of the period spent in proceeding with the misconceived application for the Certificate."
10. Reference may here be also made to the case of Fateh Ali Khan v. Muhammad Khan, where the Honourable Supreme Court observed that since the office of the Supreme Court remains open, section 4 of the Limitation Act would not be applied as the offices were open for receiving objections and for doing other work.
11. It would be relevant to refer here to the case of Ghulam Muhammad Khan v. Safdar Ali, where the Honourable Supreme Court laid down that to the proceedings taken under section 13 provisions o Transfer of Property Act do not apply nor can principles of section 114 of the said Act could be invoked on equitable principles for equity cannot override the law. It was held :- "This is not a case of forfeiture at all but of granting to a tenant a relief which goes beyond what the meaning of the words in the statute strictly import. This obviously cannot be done."
In the same case while construing the word 'default' the Honourable Supreme Court held that the word 'default' appearing in subsection (6) of section 13 cannot possibly excuse non-compliance which is avoidable. The most liberal interpretation that has been given to the word covers only defaults which are unavoidable or are due to causes for which the defaulter is, in no way responsible.
12. Lastly reference be made to the case of Ansari Brothers v. Holy Trinity Church Trust, wherein the Honourable Supreme Court laid down the law that time for payment of monthly rent is statutorily fixed under section 13 (6) of the Ordinance and that it is not within the competence of the Rent Controller to enlarge the same.
13. Keeping in view the principles laid down by the Honourable Supreme Court I find no hesitation in holding that the appellant had committed default which could not be described as having occurred due to any unavoidable or causes for which the appellant was in no way responsible. The vague allegation made and the story set up by the appellant has not been accepted by the two Courts below. The learned lower appellate Court in expressly held as follows :- "I cannot believe that the Nazir had refused to accept the rent on 1st July, 1976 i. e. On the first opening day of the Court. The Nazir has absolutely denied this contention that be was even approached by the appellant before 13th July, 1976 to accept the rent. The learned Rent Controller also for the reasons recorded in his order dated 15th September, 1976 held that the appellant had committed default in deposit of rent and therefore directed that his defence be struck off."
The findings concurrently given by the two Courts below have not been shown to be against law or otherwise suffering from any infirmity so as to call for any interference in this Second Appeal.2 3 4 5
14. The appeal is thus found to be without any merit and is accordingly dismissed.
' The appellant is however granted time up to 31st August, 1982 to vacate the premises subject to the condition that he deposits rent every month during this period. In case of his failure to do so or to vacate the premises by 31st August, 1982, whichever event happens earlier writ of ejectment shall be issued without notice to him. 1968 SCM R 17 1968 SCM R 117 1970 SCM R 238 PLD 1967 SC 530 PLD 1971 SC 700