1. MUHAMMAD HALEEM, C J.--This appeal, by leave, arises from the order of the Lahore High Court, Lahore, dated 1-4-1978 by which S.A.O No.164 was dismissed in limine.
2. Leave to appeal was granted to consider whether the defence could be struck off as a consequence of any contravention of the order under section 13 (6) of the Urban Rent Restriction Ordinance, and not for the breach of the terms and conditions of any stay order passed by the superior Court in the exercise of the powers vested in it under Rule 5 Order 41 of the Code of Civil Procedure.
3. The appellant herein was a tenant of a shop situate at 18----Temple Road, Saffan Wala Chowk, Lahore City. The respondent filed a suit for ejectment, and during the pendency of that suit, a tentative order for payment of arrears of rent and future rent was passed under section 13 (6) of the Urban Rent Restriction Ordinance on 6th of April, 1967. On 4th of May, 1967, the appellant filed an appeal against this order which was dismissed by an Additional District Judge on 19th October, 1967. However, the learned Additional District Judge allowed the appellant a period of one month to comply with the order of the Rent Controller. Before the expiry of this period the appellant filed a second appeal in the High Court which was admitted to regular hearing on 16-11-1967, and while suspending the order of the learned Additional District Judge, interim order was passed to the effect that in lieu of deposit of the arrears of rent at the rate of Rs.35/- per month from 1-7-1964 to 1-4-1967, the appellant should furnish security for the amount and the future rent to be deposited at the rate of Rs.35/ - per month on or before the 15th of each succeeding month. The appellant furnished security for the arrears of rent and continued to deposit future rent as ordered till the dismissal of appeal on 7th of April, 1973. Though there was no provision for enlarging the time for the deposit of the arrears, yet the appellant deposited this amount on 21st of February, 1973. There was, however, default in the deposit of rent for the months of June, 1972, March, 1973, August, 1973 and June 1974. The rent for these months was deposited on 21st of July, 1972, 17th of April, 1973, 15th of September, 1973 and 15th of July, 1974 respectively. The deposit for the month of June, 1972, was made during the pendency of the appeal while the rent for the months of August, 1973 and June, 1974, was made on the last date stipulated by the order dated 6th of April, 1967. The rent for the month of March, 1973 was, however, deposited after the dismissal of the appeal, two days after the crucial date, that is, 15th of next succeeding month.
4. While the case was pending before the Rent Controller, the respondent filed an application on 9th of January, 1975, and prayed that the defence of the appellant be struck off as he had defaulted in the payment of rent. By order dated 17th of December, 1975, the Rent Controller struck off the defence and ordered his ejectment.
5. Against this order an appeal was filed but that too was dismissed by the Additional District Judge by order dated 5th of February, 1978. Aggrieved by this order, the appellant filed a second appeal in the High Court which was dismissed in limine.
6. The High Court while examining the merit of the default, held as under: "I would be inclined to admit this case if the default had been merely in the deposit of the arrears; and the arguments of the learned counsel would then be fit for consideration, but unfortunately in this case there is no reasonable explanation given by the appellant as to the default committed in the deposit of rent for the months of June, 1972 and March, 1973 within time. The default of the other two months can be ignored on the ground that no litigant can suffer for an error of the Court and as such if he was allowed the period upto 15th of each succeeding month for deposit of monthly rent, he could not be called upon to deposit it before the 15th of each month subject to the liability of the penalty as provided by Section 13 (6) of the West Pakistan Urban Rent Restriction Ordinance."
7. And dismissed the appeal as there was a violation of the terms and conditions of the order of the High Court in the first round of litigation while suspending the order of the Rent Controller, in that, that the rent for the months of June, 1972 and March, 1973, was deposited not as ordered by it but on the premise "that the order of the High Court was only a continuation of the order of the Rent Controller or a repetition of that order."
8. The respondent has not cared to defend the appeal, and upon hearing the learned counsel for the appellant, we are of the view that the principle laid down in the case of Messrs Ansari Brothers v.
9. Holy Trinity Church Trust, (PLD 1971 S.C. 700), is fully applicable to the facts and circumstances of the instant case. It cannot be doubted that upon the dismissal of the appeal the stay order stood automatically vacated and it was then the order of the Rent Controller which occupied the field.
10. The Rent Controller regarded the deposit of the arrears of rent as beyond reasonable time as according to him it should have been deposited on the 9th of February, 1973. At the same time, it was the case of the appellant that while applying the principle of reasonable time, he should have been given a concession of at least one month and 20 days. According to the calculation, the arrears of rent should have been deposited by the 24th of June, 1967, but as the first appellate Court granted a stay order on the 4th of May, 1967, its consequence was that the appellant could still avail of the time left as balance. The High Court took note of it and expressed that if that was the only question, it would have admitted the appeal.
11. By implication, the contention of the appellant was held to be fit for consideration.
12. As for the contravention of the interim order of the High Court in not depositing the rent for the month of June, 1972, in accordance with the terms of the interim order, that was during the pendency of the appeal and if there was any violation in regard to the date of deposit, the matter should have been brought to the notice of the High Court, but the Rent Controller could not take note of it subsequently while his own order remained suspended and was only revived after the dismissal of the appeal. It is for the violation of his own order that the relief of striking off the defence was available and not otherwise. The High Court also fell into an error in holding that its interim order under Order 41 Rule 5 of the Code of Civil Procedure was in continuation of the order of the Rent Controller as the former was passed in exercise of the appellate power under Order 41 Rule 5 and not under the Ordinance.
13. There is no violation of the order of the Rent Controller so far as the deposit of rent for the months of August, 1973 and June, 1974 is concerned, as they were deposited on the last day of the order which itself was not worded in terms of the relevant provision, and the High Court has rightly observed that no litigant can be punished for a wrong order of the Court. Apparently, there is a violation in the deposit of rent for the month of March, 1973, which too cannot be regarded as a default as the last day was a holiday and the day following it was also a holiday, and the deposit was, therefore, made on the third working day i.e. 17th of April, 1973, on the same principle that if it is a holiday on the last day of limitation, the appeal or application could be filed on the next working day.