MIAN BURHANDUDDIN KHAN, J.-- Leave was granted by this Court vide order, dated 2-4-1979 on the ground whether the appellant, by mistake, interpreting the Controller's order, deposited the rent not before but on the 15th day of the month, and, therefore, in such case it was a bona fide mistake on the part of the tenant and as such he could not be held to have made a default.
2. Facts of the case are that the respondent /landlord filed an ejectment application, in the Court of the learned Rent Controller in respect of his house situate in Begum Street No. 39, Ahata Bibi Chah Miran, Misri Shah, Lahore on the ground that the appellant is a defaulter; that the property in dispute is required by the respondent /landlord for his bona fide personal use and occupation and that the appellant/ tenant has caused damage to the property in dispute. The appellant/ tenant resisted the ejectment application which was fixed for evidence of the respondent/landlord. The learned Rent Controller directed the appellant/ tenant to produce the bank challan for the deposit of future rent as ordered by him. It was found that the appellant had committed default .In the payment of rent for the month of October, 1977 by not complying with the direction issued by the Court. The learned Rent Controller, therefore, asked the appellant/ tenant to explain the unavoidable circumstances, if any, for the delay caused in compliance of the order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance. After recording the statement of the appellant/ tenant the learned Rent Controller struck of the defence of the appellant /tenant and directed him to vacate the premises in question within three months from the date of ejectment order.
3. Against the aforesaid ejectment order an appeal was filed in the District Court which was disposed of by the learned Additional District Judge vide judgment, dated 8-10-1978 dismissing the appeal of the appellant/ tenant. Thereafter, S.A.O. Was filed in the High Court against the judgment of the Additional District Judge which was also dismissed by a learned Judge of the Lahore High Court vide the impugned order, dated 8-11-1978.
4. Learned counsel for the appellant contended that the Courts have erred in law in arriving at the decision that the default on the part of the appellant was wilful; that in determining whether the default was wilful and the penalty provided under the law, was to be imposed, it was necessary to determine that the default was intentional; that in the absence of intention to commit default, the penalty provided under the law cannot be imposed; that the phrase 'before 15th' in common parlance, is open to different interpretation and a lay man While hearing the term 'before 15th' would readily retain in his memory that the 15th is the last date of the period fixed for payment of rent. It was further contended that in all other laws where the determining date has been provided, the phrase used by the Legislature is 'on or before the 15th'.
5. We have examined the contentions raised by the learned counsel. He relied on Sarfraz Khan v.
Muhammad Abdul Rauf PLD 1969 Kar.. 176 wherein it was held that if the deposit of rent is made in the Controller's Office by cheque and payment of this cheque is received by the Controller, from then the tenant cannot be deemed to be in default unless the deposit of the cheque itself was made after the expiry of the date prescribed in the Controller's order; that where Controller's direction is for deposit of rent before certain date and the tenant is under the impression that the deposit was to be made 'before' or 'by' the 15th, making deposit on the last date, then the tenant was held to have made a bona fide mistake in interpreting the order of the Controller. Such bona fide mistake, it was held, cannot be made a ground to hold that the tenant was in default.
6. The learned counsel then referred to Fazal Haque v. Abdul Latif Akhund PLD 1975 Kar.. 681 wherein it was held that the Controller's order for deposit of future rent 'before 15th' of every calendar month, the tenant committed default of a day by depositing rent 'on' instead of 'or before' 15th. No evidence that the tenant knew that he had committed default by depositing the rent 'on' the 15th.
Held, the default in the case was not wilful and the order striking of the defence was set aside.
7. The sane point was also examined in Muhammad Jan v. Khadim Hussain 1973 SCMR 243 wherein it was held that the default in the case was due to .The fact that by the the the petitioner got the necessary permission from the Rent. Controller on the 14th of each month, for the said months of January and March, 1972 to deposit the rent in the State Bank of Pakistan and went to the State Bank, the banking hours had expired and the Bank was not prepared to accept the deposit on that day. The deposit had, therefore, to be made on the following day. It was argued that the rent deposited on the following day, was deposited within the. This plea was rejected and it was held that the failure to do so was entirely due to the tenant's negligence and, therefore, he cannot claim to come within the principle laid down in Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530. It was further observed that the petitioner in that case could easily have avoided the default if he had gone to the Court and obtained the permission in the.
8. In Muhammad Hussain v. Mian Mahmood Ahmad and 3 others PLD 1970 Lah. 140 the question precisely before the Court was whether the word 'before' means an expression 'before the 15th day of each month' or means 'on or before the 15th of each month'. It was observe( by the learned Judges in that case that the Legislature used the word: 'before the 15th day of each month' in subsection (6) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (V of 1959) and carries no other meaning except the one that the payment should be made earlier than that date.
If it had been intended that the payment could also be made on the 15th, there would have been no difficulty it their way to have made a provision to that effect. Wherever the Legislature had any such intention, they have always used the words 'by or before' the expiry of a certain date. The expression 'by' indicates the utmost limit of the being the end of the expiry of the date on period indicated. Similarly, the words before the expiry of the date mean: before that date expires. It was observed that in a number of statute: where the date mentioned is also to be included the words used are 'or or before' which clearly means that if the Word 'bill is not used along with the word 'before' that limiting date is-hot included. In the absence o1 these words and there being ho other indication in the Ordinance that the Legislature had intended to use the words 'before the 15th day of each month' to include the fifteenth day as well, therefore, there is no reason to depart from the ordinary meaning of the word 'before'.
9. In Fatima Bai v. Fatima Begum PLD 1977 Kar.. 1007 it was contended that the default in making the payment on the 15th of the month instead of before the 15th was as a result of the bona fide misunderstanding. It was held that the rule laid down in Sarfraz Khan PLD 1969 Kar.. 176 is not a rule of law to be applied invariably and that under section 13 (6) of the Ordinance i.e. West Pakistan Urban Rent Restriction Ordinance (V of 1959) order requiring deposit of tentative rent payable month after month to be made 'before the 15th of each month' and not apart and inclusive of the 15th date of each month.
10. Having examined the facts of the present case we find that the appellant was present on the date when the order for deposit of rent for the month of October before the 15th of the next month, was made and the appellant could not give any reason for not having deposited the rent before the date fixed by the trial Court not the learned counsel could urge any ground before us in this regard. Therefore, we approve the authorities cited above regarding the interpretation of the phrase 'before 15th' as meaning 'exclusive of the last day of fifteenth of the month'. Hence, this appeal is dismissed with costs.