1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed; against the judgment dated 16-3-1988 of the Lahore High Court; whereby Constitutional Petition filed by the respondent/tenant against the striking off of his defence and eventual ejectment, was accepted.
2. ' Leave was granted in the facts and circumstances and on the point as follows:-- "On 13-11-1986, an order was made by the Rent Controller under section 13(6) of the Rent Restriction Ordinance directing respondent No, 3 (the tenant) to deposit the arrears of rent from November, 1985 to October, 1986 before 30th November, 1986 and also pay the future rent before 15th of each succeeding month. Respondent No, 3, however, committed a default in compliance with the aforesaid order, in that the rent was deposited on 30th November, 1986 and not before 30-11-1986.
3. "The petitioner, therefore, filed an application for striking off his defence. This was granted by the Rent Controller vide order dated 15-2-1987. The respondent's appeal against the said order was dismissed by the learned Additional District Judge vide order dated 25-10-1987 but the High Court on the writ petition filed by respondent No, 3 accepted the same observing that the explanation given by the tenant that he had tried to deposit the rent on 29-11-1986 but was prevented from doing so despite his best effort, had force.
4. "Ch. Khurshid Ahmad, has submitted that this Court has repelled the kind of the explanation offered by the tenant and accepted by the High Court in several decisions inter alia Ch. Muhammad Siddique v. Muhammad Rashid 1985 SCM R 21 and Fazalur Rahman v. Mst. Sarwari Begum and others 1986 SCM R 1156 on the view that if a tenant takes the risk of waiting for the last day for making a deposit and fails to do so he has himself to blame for the default." noted for examination.
5. The explanation offered from the respondents side for failure to deposit the rent on 29th November, 1986 a day before the target date was that: he had submitted an application for obtaining permission to deposit the rent on 29th November, 1986 but the Presiding Officer of the Court being on leave he was told that a duty Judge was to sanction the challan. And further that the learned duty Judge allowed the application and signed the challan for deposit in the State Bank at 12-45 Noon. Thereafter, he further asserted, he rushed to the Bank but it had by then been closed, therefore, he deposited the amount on the next day i.e, on 30th. A certificate from the bank which has been placed on record shows that its working time on the particular day was upto 12 Noon.
6. ' Both the learned counsel cited considerable case-law purporting to support them respectively. In that it is the duty of the tenant that he should take care in making the deposit well in time and should not take any unnecessary risk. While in one of those judgments it has also been observed that if it involves a greater risk the tenant should not wait for the last date. Depending upon the circumstances of each case this approach is unexceptionable. But there are other cases which emphasize that a litigant who is bound to act in a certain manner within a period of time, is entitled as of right to utilize the last day of such limitation in his favour. Acting on this principle there are observations in some of the cases that in case a tanant waits till the last date then in that case on the said last date he should not take unnecessary chances or risks. Such approach also depending upon the circumstances of each case cannot but be treated as unexceptionable.
7. ' Thus it depends upon the circumstances of each case as to whether the rule laid down in the judgment of this Court in the well-known case of Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530, is satisfied. It remains the touchstone for deciding such like controversies; namely, that event or the cause which prevents the tenant from complying with the order under section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959, must be established by him to be beyond his control. In this context mere waiting for the last date by itself would not be treated as preventing a tenant from showing that he was prevented by a cause beyond his control.
8. ' Applying the aforereiterated principle to this case it is obvious that the respondent had every intention of making the deposit. He had put that intention and desire into action by drafting the application so as to obtain sanction for the deposit. The same beyond that stage was not entirely within his control. The deposit could not take place without the sanction of the Presiding Officer of the Court. It was also not within his control that the Presiding Officer should be present and functioning. His being on leave thus was beyond his control. The manner in which the Clerical Staff of the said Court acted and behaved; whether diligently or otherwise, was also not within the control of the tenant. The same would apply to the grant of sanction for deposit by the duty Judge at 12-45 Noon. This was also beyond his control. It is well known that none shall be allowed to suffer on account of an act of Court. Keeping in view that principle, it has been already noticed that the time for deposit of the rent in the bank had already passed. Nevertheless whatever was in his control was to rush to bank which he did but the eventual success in making the deposit was not in his control; because, the bank had already closed. Accordingly, it is a fit case in which the rule of `beyond control' having rightly been applied by the High Court in respondent's favour we find no force in this appeal. The same accordingly is dismissed with no order as to costs.