1. ' To reach and comprehend the controversy raised in the constitutional petition facts in brief so far as necessary are:- ' Petitioner No.2 is in occupation of a portion of property No.16-Empress Road, Lahore as tenant of respondent No.1 at monthly rental of Rs.1,500 since the year 1974. Ejectment petition seeking eviction of the petitioner from the tenanted premises on grounds of default in payment of rent since May, 1976, bona fide personal requirement of the premises, damage to the property, nuisance and user of the property for a purpose other than for which it was let out was moved. The tenant opposed the ejectment petition through his written statement Pleadings of the parties are reflected in the following issues settled by the Rent Controller:-
(1) Whether the respondents are defaulters for the payment or tendering the rent for the disputed period? O.P.D.
(2) Whether the respondents are using the disputed property for a purpose other than it was rented for? O.P.P.
(3) Whether respondents have made out material changes and alterations without the prior consent of the landlord? O.P.P.
(4) Whether the petitioner requires the property in question for his own occupation and use in good faith and bona fidely? O.Y.P.
(5) Whether the respondents have not properly maintained the property so as to impair its value and utility? O.P.Y.
(6) Whether the respondents are causing nuisance to the petitioner as well as to the locality.
2. (6-A) Whether there is no relationship of tenant and landlord between the petitioner and respondents Nos.1 and 3? O.P.P.
(7) Relief.
3. ' The parties produced evidence in support of the issues framed. During the course of the proceedings as per mandatory requirements of section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 as amended, Rent Controller vide order dated 31-5-1978 passed a tentative rent order directing the tenant to deposit the rent due before 15th of each succeed ing month till the final decision of the ejectment petition. The tenant in pursuance of the above-noted direction of the Rent Controller continued depositing the monthly rent. However, as the misfortune would have it, he committed a lapse in making deposit of the rent for the month of July, 1980. Instead of depositing the rent for the month of July before 15th of August, 1980 as directed, it was deposited in Bank on 19-8-1980 a few days after the time limit fixed by the statute. Landlord, who was on watch, took prompt notice of this lapse and on 15-11-1980 presented a petition under section 13(6) of the Rent Ordinance for striking off the defence of the tenant, passing of an order of ejectment forthwith and putting the landlord in possession of the premises without further inquiry. This miscellaneous petition was seriously opposed and resisted by the tenant who offered explanations for the lapse attributed to him in not depositing the rent for the month of July, 1980 before 15th of August, 1980.
4. Learned Rent Controller, on merits, found all the material issues against the landlord. Default under section 13(6) was also not held proved. Vide order dated 16-3-1981 ejectment petition failed and was dismissed. Correctness of two independent orders, one refusing ejectment on merits and the other to strike off the defence under section 13(6) was convassed in first appeal under section 15 of the Rent Ordinance before the District Judge, Lahore, Rent appeal as transferred to the file of learned Additional District Judge, Lahore. Learned appellate Court maintained findings of Rent Controller recorded on merits. However, he disagreed with the approach of the Rent Controller in regard to the default committed by the tenant for making late deposit of the rent for the month of July, 1980 and consequently on this ground proceeded to strike off the defence and order ejectment of the tenant from the premises in his occupation. The relevant observa tions of the learned Additional District Judge are:- "Coming now to the point urged before me to the effect that the learned Rent Controller was law bound to strike of defence of the tenants due to non-compliance with order under section 13(6) of the Punjab Urban Rent Restriction Ordinance. I find that this order under section 13(6), was passed on 31-5-1978. The tenants were depositing rent regularly thereafter. Rent for the month of July, 1980 was however, deposited late. A perusal of the deposit receipts with respect to rent for the month of July, 1980 available on record of the lower Court at page No.187 shows that this was deposited on 19th August, 1980 instead of 14th of August, 1980. 14th August, 1980 being a holiday the rent could have been deposited on 15th of August, 1980. The receipt, however, shows deposit on 19th August, 1980. Learned counsel for the appellant has submitted that this late deposit of rent for the month of July, 1980 warrants striking of defence of the tenants in view of the provision of section 13(6), Urban Rent Restriction Ordinance. In this connection he has relied upon 1982 SCMR 616, 1982 SCM R 33 and PLD 1982 Lah. 92 besides some other authorities. Ratio of all the authorities is that a rent Controller is law bound to strike of defence of the tenant in case tenant fails to comply with the order passed under section 13(6) of that Ordinance unless it is shown that the tenant was incapacitated or was debarred from depositing the rent due to a sufficient cause beyond his control. In this connection case of the tenants was that rent for the month of July could be deposited by 15th August, 14th being a holiday but an employee of the respondent being under the impression that civil Court being closed during the month of August he could not deposit the rent during August but later on when told that he could do so he deposited the rent on 19th of August, 1980 and as such was not a wilful defaulter. In this connection learned counsel for the respondents has also relied upon section 9 of West Pakistan General Clauses Act. This law or the position taken by the learned counsel for the respondent does not help the respondent in any manner. I must mention that deposit of rent had got nothing to do with Courts closure or otherwise. The deposit had to be made in Bank. A perusal of the receipts on record available at page Nos. 181 to page 225 on file of the lower Court show that rent was being deposited by the tenants without any authentication by the Court. All these receipts beginning from the month of September, 1978 to the month of October, 1980 shows that these challans were not signed by Presiding Officer of any Court or any Official of the Court. There is no Court stamp either on these challans forms. It only means that rent was deposited right from September, 1978 without any order from the Court. Even if the civil Court had been closed totally and no Duty Judge had been working, still rent could have been deposited as per practice. This has been shown by conduct of the tenants themselves. They had been depositing rent without intervention of the Court right from September, 1978. In this connection I must also mention that rent for the month of July, 1979 was also deposited on 12th of August, 1979. Therefore, there was no justification whatsoever even for the view that the tenant was under the impression that rent could not be deposited in August. When rent was deposited in August, 1979, where was room for the thought that it could not be deposited in August, 1980. I, therefore, find that by their own conduct through the receipts with regard to deposit of rent it was proved on record that the tenants were inclined in not depositing rent for the month of July, 1980 in time. The learned Rent Controller in his order was constrained to hold that the tenants were under the impression that rent could not be deposited in August, 1980 but having informed on 18-8-1980 they had, deposited the rent with permission of the Duty Judge. This is the clear misreading of material on record. A perusal of the receipt for July, 1980 shows that no permission was sought from the Duty Judge while depositing rent for this month. Even otherwise there was no need of information on that stage because the tenant knew through their previous conduct that rent could be deposited in the month of August. I, therefore, find that the learned Rent Controller had not exercised the discretion in accordance with law and have rather done it by misreading the material on record or by omitting to read the material on record. I must mention that the order of deposit of rent by the Rent Controller under section 13(6) of Urban Rent Restriction Ordinance, needs compliance not only because it is an order of a forum but because there is a statutory obligation behind it. The parties are law bound to abide by statutory requirements of this law. The Rent Controller had only to pass the order and thereafter, the law had to take its own course. In the present case if any agent of the tenants was under a misapprehension that he could not deposit rent during the month of August he had acted ignorantly. When the law requires depositing of rent before 15th of next succeeding month any ignorance on part of the tenant amounts to ignorance of law for which there is no excuse.
5. ' I, therefore, set aside the finding of the learned Rent Controller on this point and hold that the case was fit for striking of defence of the tenants on this point. Learned counsel for the respondents submitted that throughout the tenants have been paying the rent regularly and mere elapse for one month should not be made to take such an action against the tenants. I do not agree with this contention of the learned counsel. Had this been intention of the Legislature it must have been provided with a solitary lapse will not be sufficient for striking of defence. The law however, provides otherwise. Even a solitary instance of non-compliance with law and order of the Rent Controller is sufficient to strike of defence of the tenant".
6. ' Haji Sheikh Ghias Muhammad, learned counsel for the tenant petitioner, has contended that the rent for the month of July, 1980 could be deposited on the reopening day of the civil Courts which remained closed in the month of August on account of long summer vacation. Tenant had a bona fide impression that the deposit could not be made in the month of August and consequently when he was advised by a counsel he proceeded to deposit the monthly rent on 19-8-1984. Default, thus was not wilful. At least there was neither negligence nor contumacy. Tenant has been mindful of his obligation to pay/deposit rent throughout. There was no complaint of any default. The one alleged in the ejectment petition was not pressed at the hearing, and the lapse attributed was found not proved. It was not a case of wilful default and presented a proper case for exercise of discretion in favour of the tenant. It was also submitted that the petitioner tenant had not been afforded adequate opportunity of explaining the alleged default. Further, learned counsel stated that an order refusing to strike off defence is by itself appealable under section 15 of the Rent Ordinance, 1959. No separate appeal was filed by the landlord. In an appeal preferred against the final order refusing ejectment on merits, the order refusing to strike off defence could not be assailed. Learned counsel stated that the principle of section 105, C.P.C. was inapplicable to appeals under Rent Ordinance. Ch . Khurshid Ahmad, learned counsel for the respondents vehemently asserted that the tenant was a defaulter inasmuch as he failed to deposit the monthly rent per requirements of the mandatory direction of the Rent Controller before the time fixed.
7. Instead of depositing the rent before 15th of August, 1980 deposit was made on 19th of August, 1980.
8. It was a clear case of default justifying recourse to provisions of section 13(6) of the Rent Ordinance. The tenant at different stages has offered different explanations to suit his convenience.
9. These different stands showed that he had no explanation to offer. It was further submitted that the fact that the civil Courts remained closed during the month of August, cannot be pressed in service as a ground condoning the default committed. Tenant in the past has been depositing the monthly rent in bank without obtaining orders from the Rent Controller. This time also if he wanted to comply with the direction he could have deposited the rent. Presence or absence of Civil Judge/Rent Controller did not make any material difference. He also submitted that the tenant was afforded full opportunity to explain the default, and in exercise of this right different explanations were submitted. As regards the objection that a separate appeal was not filed against the order refusing to strike off the defence, he submitted that the petitioners did not raise this question before the Court of appeal and in fact one appeal could be filed challenging the interlocutory order on the analogy of section 105, C.P.C.
10. ' Ejectment petition on several grounds including default was filed against the tenant. Decision on merits was recorded against the landlord by the Rent Controller. On appeal, findings on merits have been maintained by the learned Additional District Judge. Ejectment has proceeded on the basis of default on late deposit of monthly rent for the month of July, on 19-8-1980. Question that arises in the case is whether rent for the month of July, on account of the summer vacation in the month of August could be deposited on the reopening of the civil Courts in the succeeding month of September. This question arose for consideration in Visumal Chatumal Khilnani v. Ali Bakhsh and others PLD 1968 Kar.
521. In the above-noted precedent case, rent for the month of May, 1964 which was to be deposited before the 5th of June had been deposited on 4th of July, 1964, June being a month of vacation ti the District Court at Karachi. Default was explained on two grounds:
(i) That June was a month of vacation and accordingly the tenants were under the impression that deposits would not be accepted during vacation;
(ii) That the tenant himself was out of Karachi and his wife-who was entrusted with the work of deposit of rent could not attend the Court due to the illness of her young child. Rent Controller struck off the defence on the basis of default.
11. ' This order was reversed in appeal by the learned Additional District Judge who found that it was not a case of wilful default. Question of default, in these circumstances came before the Karachi High Court. Mr. Justice Noor-ul-Arfin of the Karachi High Court, relying on Ghulam Muhammad Khan Lundkhor v. Safdar All PLD 1967 SC 530, speaking on the question of default observed:- "The question of the defence being struck off on the ground of default in payment of rent has been considered by their Lordships of the Supreme Court, in the case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530, where Hamood-ur Rehman, J. stated that the word "default" imports an element of negligence or fault and means something more than mere non compliance, and further to establish default, one must show that the non-compliance has been due to some avoidable cause. It was further observed that it is not lightly to be presumed that the law intends to cause injustice or hardship. In view of this decision, it cannot be said that the default of the respondents is attributable to their negligence or fault. There is no doubt that during the month of June, which is a vacation month for civil Courts in Karachi, no civil work is at all transacted except urgent work. The respondent were justified in presuming that deposit of rent will not be accepted during the vacation. Their bona fides can also be judged from the further fact that they deposited the rent for May and June, 1964, on 4th July. The contention that the deposit should have been made on First July, when the District Court reopened after vacation, loses force in view of the Medical Certificate on record that the child of the respondent No.1 was very ill then and consequently, respondent No.1 being out of Karachi, his wife could not attend the District Court for this purpose. In the circumstances it cannot be held that the respondents were negligent in depositing the rent in compliance with the order of the Rent Controller."
12. ' The point came up for consideration before this Court in case Muhammad Shabbir v. Haji Ghulam Sabir 1981 Law Notes (Lah.) 292. Relevant discussion is found in para. 5 of the report. It reads:- "There is no dispute that the appellants were required to deposit the rent for the month of July, 1974 before 15th of August, 1974, in accordance with the order passed by Rent Controller. In the reply submitted by the appellants to the respondent's applications for striking off their defence. It was stated by them that they could not deposit the rent in the month of August as the civil Courts were closed and that they had deposited the rent for the month of July immediately on reopening of the Courts after summer vacation. The appellants further stated that they had not committed a wilful default in depositing the rent for the month of July in the month of September. The appellant's plea that they could not deposit the rent for the month of July in August, 1974 as the civil Courts were closed on account of summer vacation, would have been acceptable if the appellants had deposited the rent immediately on reopening of the Courts. The appellants however, deposited the rent after 10 days of reopening of the Courts i.e. on 11-9-1974 as is evident from the photostat copies of Treasury challans placed on the file by the respondents. There is no explanation why the rent was not deposited on 2-9-1974 immediately on reopening of the civil Courts after summer vacation. Under these circumstances, appellants' failure to deposit rent in compliance with the orders of the learned Rent Controller was obviously wilful, and a learned Rent Controller was justified in striking of their defence."
13. ' Observations of the learned Judge in case of Muhammad Shabbir v. Haji Ghulam Sabir, 1981 Law Notes (Lah.) 292, received approval of the Supreme Court of Pakistan in civil petition for special leave to Appeal No.125 of 1981. Karachi High Court in Fahim Ansari v. Kalim Qamar Shaikh PLD 1980 Kar. 231, however struck a discordant note. Earlier case of Visumal Chatumal Khilnani v. Ali Bakhsh and others PLD 1968 Kar. 521 was not referred to in this judgment. So far as Lahore High Court is concerned, the views are found in Muhammad Shabbir v. Haji Ghulam Sabir 1981 Law Notes Lah.
14. 292, reproduced above. In the Province of Punjab, powers of Rent Controller are being exercised by Civil Judges. Civil Courts are closed in the month of August on account of summer vacation except for urgent work. In such circumstances, when the Courts are closed any act or proceedings directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, shall be considered to have been done or taken in due time, if it was done or taken on the day on which the Court or office is open. Section 9 of the General Clauses Act, 1957 reads:- "9. Computation of time.--Where, by any West Pakistan Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: ' Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act, 1908, applies.
15. ' The principle contained in section 9 quoted above, lend support to the argument raised by the learned counsel for the petitioner. Admittedly Courts were closed and if a Civil Judge to deal with specified urgent matter was available in vacation that does not mean that the office of Rent Controller was not closed. The tenant, therefore, could A legitimately rely on the concession granted to him on the rule of law enacted in section 9 of the General Clause Act, 1957. The rent was being deposited under the direction of the Rent Controller. It is stated on behalf of the landlord that the tenant had been depositing due rent without obtaining the orders from the Rent Controller seeking his permission for the said deposit. General practice is to the contrary. Whenever a deposit is made under an order of a Court, permission is sought and then the amount is deposited. The fact that previously the tenant deposited the rent for the month of July in time in the month of August without obtaining the orders of the Rent Controller cannot be used as an argument to deprive him of a right under section 9 of the General Clauses Act. As observed in the case of Muhammad Shabbir, if the deposit had been made on 2-9-1974, argument raised would have been acceptable. The rule of law laid down clearly implied that the rent could be deposited on the reopening day of the civil Courts. In the case under consideration, no fault would have been found if the C tenant had deposited the rent on the day of reopening of the civil Courts. He cannot therefore, be penalized if he deposited the rent on 19th of August, 1980. Speaking with immense respects for the views expressed in Fahim Ansari v. Kalim Qamar Shaikh PLD 1981 Kar.
231. I prefer to rely on the rule laid down in case Muhammad Shabbir v. Haji Ghulam Sabir 1981 Law Notes Lah. 292 which has received the approval of Supreme Court of Pakistan. Therefore, the tenant could not be found guilty of late deposit and penalized in making an order of ejectment against him. That aside, provisions of section 13(6) of the Rent Ordinance, though mandatory in nature and have to be given effect to in case of default but then "default" as observed by the Supreme Court of Pakistan in case Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530, necessarily imports an element of negligence or fault and means something more than mere non- compliance. From this, it necessarily follows that the Court while passing an order under section 13(6) striking off the defence of a tenant must necessarily look to the circumstances attending the default. In case it was found E. that the default was unavoidable and was beyond the control of the tenant, then an order of ejectment may not follow. This part of section 13 is designed to test the bona fides of the tenant in the matter of defending ejectment proceedings brought against him and also to ensure prompt payment of the rent past as well as future to the landlord during the pendency of the proceedings before the special tribunals. Rent Controller after consideration of the circumstances, attending the default had found in favour of the tenant and had refused to strike off his defence. Learned Additional District Judge relying on a decision from Karachi jurisdiction proceeded to order ejectment. He was bound to follow the rule of law laid down by the High Court in Muhammad Shabbir v. Haji Ghulam Sabir 1981 Law Notes Lah.
292. Discretion exercised by the Rent Controller was not arbitrary, capricious or perverse. Tenant had succeeded on merits as the allegations levelled against him in the ejectment petition were found not proved. He was in occupation of the rented premises for over a decade and has been mindful of his obligation in regard to payment of rent. Alleged late deposit of monthly rent of July, 1980 by 19-8-1980 was in fact no default. Learned Additional District Judge acted without lawful authority when he proceeded to order ejectment is disregard of the rule of law laid down by this Court in Muhammad Shabbir v. Haji Ghualm Sabir 1981 Law Notes Lah.
292. I, therefore, have no hesitation in striking down his order as illegal. Writ petition is allowed.
16. Order dated 12-11-1982 passed by the learned Additional District Judge, Lahore is set aside and declared to be without lawful authority. In the circumstances parties are left to bear their own costs.