Through the instant writ petition the petitioner, Syed Sajjad Prince, impugns the order dated 24.03.2023 passed by the Court of the learned Additional District Judge, Islamabad-West whereby his appeal against the order dated 15.10.2022 passed by the learned Rent Controller, Islamabad was dismissed. Vide the said order dated 15.10.2022, the learned Rent Controller struck off the petitioner's defence under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 ("I.R.R.O.") and accepted respondent No.3's eviction petition and the petitioner was directed to hand over vacant possession of Shop No.1, Malik Heights 1, Sector E-11/2-3, Islamabad ("Rented Premises") to respondent No.3.
2. The facts essential for the disposal of the instant petition are that on 22.06.2021 respondent No.3, Mrs. Manaria Bibi, filed a petition for the petitioner's eviction from the Rented Premises on the ground of default in the payment of monthly rent since January, 2021. The order dated 07.06.2022 passed by the learned Rent Controller shows that the petitioner could produce any proof of payment of rent for the month of March, 2022. The learned Rent Controller therefore, directed the petitioner to produce on the next date of hearing, proof of the payment of rent for the month of March, 2022 and also directed the petitioner to keep on depositing in the Court the future monthly rent amounting to Rs.66,550/ before 15th of each month. On the next date of hearing i.e. 22.06.2022, the petitioner submitted the receipts of the rent deposit inter alia for the month of March, 2022 and took the plea that in the said rent he had adjusted the amount expended on work done on the rented premises. The learned Rent Controller thereafter framed issues out of divergent pleadings of the parties and adjourned the proceedings for production of respondent No.3's evidence. On 11.10.2022, respondent No.3 asserted before the learned Rent Controller that the petitioner is not depositing rent in the Court. The learned Rent Controller vide order dated 11.10.2022 directed the petitioner to produce before the Court on 15.10.2022, the receipts of deposited rent. The order dated 15.10.2022 shows that the petitioner did not produce the receipts of rent deposit as directed by the learned Rent Controller therefore, his defence was struck off and respondent No.3's eviction petition was accepted under Section 17(9) of the I.R.R.O.
3. The petitioner assailed the learned Rent Controller's said order dated 15.10.2022 by filing writ petition No.4236/2022 in this Court. The petitioner's said writ petition was dismissed as not maintainable by this Court vide order dated 14.03.2023. There was statutory remedy of appeal under Section 21 of the I.R.R.O available to the petitioner.
4. On 22.03.2023, the petitioner filed an appeal under Section 21 of the I.R.R.O. against the learned Rent Controller's order dated 15.10.2022. Apparently, the said appeal was accompanied with an application for condonation of delay. Vide the impugned order dated 24.03.2023, the learned Additional District Judge dismissed the petitioner's appeal by rejecting the said application for condonation of delay. Hence the instant petition.
5. Learned counsel for the petitioner, after narrating the facts leading to filing of the instant petition, submitted that the petitioner had regularly been depositing the monthly rent in the Court in compliance with the learned Rent Controller's tentative rent order dated 07.06.2022; that for the month of October, 2022 the petitioner had been allowed by the learned Rent Controller to deposit rent on 13.10.2022; that since the petitioner had all the receipts showing deposit of rent, the learned Rent Controller had erroneously passed the order dated 15.10.2022; that the petitioner unintentionally availed the wrong remedy of filing a writ petition before this Court; that after the said writ petition was dismissed, the petitioner filed an appeal before the learned District Court along with an application for condonation of delay under Section 14 of the Limitation Act, 1908; that vide the impugned order dated 24.03.2023, the learned Appellate Court dismissed the petitioner's said application for condonation of delay and his appeal; and that the impugned order does not correctly appreciate Section 29 of the Limitation Act, 1908 because the provisions of I.R.R.O do not explicitly exclude the applicability of Section 14 of the Limitation Act, 1908; and the impugned order dated 24.03.2023 is contrary to law. Learned counsel for the petitioner requested for the instant petition to be allowed in terms of the relief prayed therein.
6. I have heard the contentions of the learned counsel for the petitioner and have perused the record with his able assistance.
7. The main thrust of arguments advanced by the learned counsel for the petitioner is that under Section 14 of the Limitation Act, 1908 the time spent by the petitioner in prosecuting writ petition before this Court had to be excluded while computing the period prescribed for filing an appeal under Section 21 of I.R.R.O. Indeed Section 14 of the Limitation Act, 1908 provides for exclusion of period spent bona fide in proceedings before a Court without jurisdiction, but the exclusion of time provided in the said Section is limited only to the extent of the two categories of cases i.e. Suits and Applications and does not include the appeal. Section 14 of the Limitation Act, 1908 reads thus:- "14. Exclusion of time of proceeding bona fide in Court without jurisdiction.
(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
Explanation I. In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II. For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation III. For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
8. Additionally, definition of suit' provided under Section 2(10) of the Limitation Act, 1908 specifically mentions that suit does not include appeal or an application. It may be true that the principles provided under Section 14 of the Limitation Act, 1908 can be taken into account while deciding application filed in an appeal for condonation of delay under Section 5 of the Limitation Act, 1908.
But the I.R.R.O. is a special law and by implication of Section 29 (2) of the Limitation Act, 1908 the provisions of Section 5 of the Limitation Act, 1908 are inapplicable upon an appeal filed under Section 21 of I.R.R.O., therefore, this argument also does not come to the petitioner's aid. The Hon'ble Supreme Court in case of Khushi Muhammad Vs. Mst. Fazal Bibi (PLD 2016 SC 872) observed as follows:- "35. In the preponderance of the cases cited above it has been categorically held that the application of Section 14 ibid is restricted to suits and the provision shall not be attracted to appeals. However the ratio of some cases is that because an appeal is the continuation of a suit therefore on the basis thereof the section can be extended to appeals. But there are catena of judgments (which are cited by both the sides and also researched by our office) propounding the view that although Section 14 has no direct application to appeals the principles enshrined therein can be taken into consideration by the courts while deciding whether a sufficient cause for condonation of delay has been established in terms of Section
5. As per the salutary rule of interpretation of statutes, for construing a provision/section the ordinary dictionary meaning should be assigned to a word/expression appearing therein; however if such word/expression has been defined in the statute itself it should be given the same restrictive meaning. From the word the "suit" which appears in Section 14, it is abundantly clear that the said section applies to suits and there is no mention of appeal or revision etc."
9. It needs to be mentioned that in order to make out a case under Section 14 of the Limitation Act, 1908 it was mandatory for the petitioner to have established his due diligence' in prosecuting remedy of writ petition instead of filing an appeal within the time prescribed. On this account the only justification offered by the petitioner for filing writ petition instead of statutory appeal was that he had approached the wrong forum "unintentionally." So much so that the copy of application for condonation of delay filed along with appeal has not been annexed with this petition, which may have enabled this Court to have seen any other grounds mentioned therein. Now the order dated 14.03.2023 passed by this Court in writ petition No.4236/2022 shows that the said petition was dismissed after an objection with regard to its maintainability was raised by the other side. In that it also cannot be the petitioner's case that he exercised due diligence and withdrew the petition on his own with the Court's permission to avail alternate remedy.
10. For the above reasons, I am constrained to hold that Section 14 of the Limitation Act, 1908 is inapplicable on the petitioner's appeal filed under Section 21 of the I.R.R.O. and the time spent by the petitioner in prosecuting remedy of writ petition before this Court could not have been excluded from computing the period prescribed for filing appeal before the District Court under Section 21 of I.R.R.O.
11. Even otherwise the order dated 22.06.2022 passed by the learned Rent Controller shows that the petitioner did not pay the entire rent for March, 2022 this he did in stark derogation of earlier order dated 07.06.2022 passed by the said Tribunal. The petitioner had ascribed to adjustment of expenditure on the rented premises as a reason for short payment of rent. Any amount that the petitioner may have spent unilaterally on the maintenance of the rented premises or carrying out any repairs thereon without the express permission of respondent No.3 cannot be adjusted against the rent which was payable by the petitioner to respondent No.3. Unless a lease agreement explicitly provides for a mechanism for the adjustment of the amount expended by a tenant on repairs or maintenance of the rented premises against the rent, a tenant does not have a right to withhold the payment of rent on the plea of having carried out repairs or maintenance works. In the event, the demised premises are in need of repair or maintenance and the landlord refuses to carry out the same. Section 15 of the I.R.R.O. provides a mode and mechanism for repairs to be carried out by a tenant on the demised premises, and the amount expended on the same to be deducted from the rent payable to the landlord. Now at no material stage did the petitioner apply to the learned Rent Controller under Section 15 of the I.R.R.O for a direction to the petitioner to carry out the repairs on the demised premises and deduct the amount from the rent payable to respondent No.3. It is also settled law that a thing required by law to be done in a particular manner must be done in that manner or not at all. Reference in this regard may be made to the law laid down by the Superior Courts in the cases of Noorul Hassan and others Vs. Federation of Pakistan reported as PLD 1956 SC 331 and Khalid Saeed Vs. Shamim Rizvan and others reported as 2003 SCMR 1505.
12. I am therefore of the view that the petitioner could not have deducted the amount of rent without permission in this regard having been obtained by the learned Rent Controller. Beside this the learned Rent Controller has unambiguously held vide order dated 15.10.2022 that the petitioner did not produce receipts for payment of rent despite a direction to that effect was issued vide earlier order dated 11.10.2022. Therefore, the learned Rent Controller struck off his right of defence and accepted respondent No.3 s eviction petition well within the jurisdiction conferred upon the said forum under Section 17(9) of the I.R.R.O.
13. In view of the above, I do not find any legal infirmity or jurisdictional error in the impugned order dated 24.03.2023, this petition being without merits is, therefore, dismissed in limine.