AGHA ALI HAIDER, J----The circumstances giving rise to this Constitutional Petition are as follows:-
2. Bungalow No. 73, situated at Garden Road, N. I., Lines, Karachi, was owned by Messrs Eduiji Dinsha Limited and the petitioner No 1 was the tenant thereof against a monthly rent of Rs. 351.69. The said bungalow was sold by Messrs Edulji Dinshaw Limited to the respondent No. 2 by a Registered Deed dated the 11th September, 1963. The petitioner No. 1 was apprised of the transaction through a notice from Messrs Edulji Dinshaw Limited dated September 12, 1963 and was also called upon to square up the rent to them till the I Ith of September 1963.
3. It is an admitted position that Messrs Edulji Dinshaw Limited had been paid the rent up to the relevant period, that is, September 11, 1963. The petitioner No. 1 neither heard from the respondent No. 2, nor took any step to make any payment to him for quite some time. It was on 10-12-1963 that he sent a money order for Rs. 351.69 which was refused by the respondent No. 2. He then made a second remittance of the same amount through another money-order on 17-12- 1963 which was again refused. Thereafter, the petitioner No. 1 deposited the rent in Court after fling a rent application being No. 19 of 1964. On December 23, 1963, the respondent No. 2 instituted eviction proceedings under section 17(1) of the Cantonments Rent Restric--petition Act, 1963, against the present petitioner No. 1. Subsequently an amendment was sought and the petitioner No. 2, and another person alleged to be unauthorized sub-tenants were added. The grounds urged were: firstly, default in payment of rent, secondly, that the petitioner No. 1 had sublet the premises to the petitioner No. 2 and another person without any written consent of the respondent No. 2 and thirdly, that the property was being used for purposes other than residential.
4. The learned Rent Controller answered all the three grounds in the negative and dismissed the application. In regard to the default, he was of the opinion that in the absence of any written agreement the rent became duo on the 12th of October, 1963, and as the payment was duly tendered on the 10th of December, 1963, it was within 60 days from the period when the rent became due. In regard to the allegation of unauthorized sub-letting, he found that they were living to the knowledge and with the consent of the former landlord.
5. An appeal was taken by the respondent No. 2 to the District Court. The learned District Judge affirmed the findings of the learned Rent Controller in regard to the other issues, but found that a default was involved, as the rent for the month of September 1963, had become due on 1-10-1963 and not on 12-10-1963, and therefore 60 days elapsed on 1-12-1963 before the rent due was tendered. The learned District Judge sought support for his view from an unreported judgment in Second Appeal, being No. 3 of 1964 from this Court. As no Second Appeal lies from an appellate judgment under the Scheme of the Cantonments Rent Restriction Act, 1963, this Petition has been filed impugning the judgment of the learned District Judge.
6. Given that the bungalow had been purchased by the respondent No. 2 on the 11th of September 1963, and that the petitioner No. 1 had paid the rent thereof to the former landlord till that date, the question for consideration is whether the rent for the remaining days of September 1963 was due to the said respondent on 1-10-1963 or on 11-10-1963, that is, after full one month of the commencement of the new tenancy.'
7. Section 17 (1) (2) (i) of the Cantonments Rent Restriction Act, 1963, reads as under: "17.-(1) After the commencement of this Act no tenant, whether before or after the termination of his tenancy, shall be evicted from the building in his possession or occupation in execution of a decree passed after such commencement, except in accordance with the provisions of this section.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for an order in that behalf, and the Controller may after giving the tenant a reasonable opportunity of showing cause against the application, make an order directing the tenant to put the landlord in possession, if he i3 satisfied that-
(i) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent, or in the absence of such agreement, within 60 days following the period for which the rent is due; or Admittedly, the tenancy was not based on a written agreement.
Therefore under section 17 (2) (i) of the aforesaid Act, the default would occur in the absence of payment of the rent within 60 days following the period for which the rent was due, It is beyond the pale of any controversy that the tenancy in this cast had commenced from the 12th September 1963. There is no reason as to why the monthly rent would become due in only 20 days, so that the Gregorian calendar could be followed for the monthly rents thereafter. The first month of the tenancy was completed on or about the 11th of October 1963 and the default in view of section 17
(2) (i), would occur if the rent remained unpaid within 60 days thereafter. There are a number of cases reported under section 106 of the Transfer of Property Act in which it has been held that the rent had to be computed from the date when the tenancy commenced. That is also the state of law in England; a reference might as well be made to the case of Sidebothom v. Holland (I Q 378) where the only question in dispute was whether the tenancy commenced from 19th or the 20 of the month.
6. The learned District Judge was, however, of the opinion that the rent had become due on 1-10- 1963, that is, the petitioner No. 1 had to pay the rent for 18 days to come in line with the calendar month. For this he sought support from the judgment of a learned Single Judge of this Court in the case of Khalil v. Mst. Hanifan, being Appeal No. 3 of 1964, I have perused the judgment but there are no discussions whatsoever on the point. It has just been assumed it is so. Mr. Aziz Munshi, learnedth counsel for the respondent No. 2 had nothing further to say in that context. Unfortunately the arguments in the case remained limited to facts, on both the sides. It is true, that in the application under section 17 (1) of the Cantonments Rent Restriction Act, it was mentioned that the tenancy commence from the first of the Calendar month. This allegation was not denied. For aught we know, the tenancy at the inception did commence from the 18th of the calendar month. The tenancy in the Instant case however commenced from the 12th and therefore the rent would be due after 30 days thereof, and not only 18 days. There is nothing in the said Act which enjoined upon the petitioner No. 1 to clear the rent for the remaining 18 days of September, 1963 on the 1st of October 1963 and then make the payments from month to month. I therefore agree with the opinion of the learned Rent Controller that the rent from the petitioner became due at the end of the tenancy month ending on the 11th of October 1963. There was no default, wilful or otherwise as the rent was tendered on the 10th of December 1963. He followed it up again on the 17th of December. The fact that he had made the remittances for one month will be of no consequence, because apart from other considerations, the application for eviction was filed on December 23, 1963, when the rent of the other months had not fallen due.
7. The order of the learned District Judge was, therefore, not within the four corners of the Cantonments Rent Restriction Act, 1963. He had exceeded his jurisdiction. A competent authority under the provisions of a law can function within its limits. It is not the law, that any and every order passed by it, even in a passing fancy, would be immune from a challenge, within the provisions of the extraordinary jurisdiction exercised by this Court, I am clearly of the opinion, that the impugned order was unlawful and, therefore, of no legal consequence.
8. In the result, I will set aside the order passed by the learned District Judge and allow the petition with costs.