' ABDUL QADEER CHAUDHRY, J.--Leave to appeal is sought against the judgment of the Lahore High Court dated 3-1-1990 by which Constitution petition filed by the petitioners was dismissed.
2. The facts, in brief, are that the property in dispute was let out to the petitioner No, 1 by the landlord at a monthly rent of Rs, 1,600. The respondents Nos. 3 to 5 filed an eviction application on 10-1-1987 for the ejectment of the petitioners on the grounds of default in the payment of rent with effect from August 1983, their personal need and subletting. The application was contested by the petitioners. Six issues were framed.
3. The learned Rent Controller held that the petitioner No, 1 had defaulted in the payment of rent for the months of August, September and October, 1983 and that the premises was required in good faith by the landlords for their own use. The issue of subletting was decided against the landlords.
The order of eviction was passed on 28-2-1989. The petitioners' appeal was dismissed by the Additional District Judge; however, he reversed the finding with regard to the bona fide requirement of the landlord but the finding of default was upheld. The petitioners unsuccessfully challenged the aforesaid two orders in the Constitution petition.
4. Learned counsel for the petitioners submitted that the default was alleged for the months of August, September and October, 1983 but the eviction application was filed on 10-1-1987. The rent was barred by time, therefore, the ejectment application on the ground of default pertaining to the period earlier to three years was not competent. Learned counsel has referred to Muhammad Ahmad v. Mrs. Qamar Anwar Sheikh 1980 CLC 664, where it was held that "there can be cavil with the proposition of law that under section 13(2) a landlord may seek eviction of a tenant if the tenant has not paid or tendered rent due from him in respect of the building or rented land but ejectment cannot be sought on the basis of arrears of rent for the period beyond the limit of three years from the date of institution of proceedings". The Rent Restriction Ordinance (hereinafter referred to as the Ordinance) is a special statute. The Ordinance restricts the increase of rent and the eviction of tenants. A machinery has been provided for the eviction of tenants and certain rights have been granted to the tenants under this Ordinance if they fulfil their obligations. The Ordinance is not a statute for the recovery of rent. A landlord who wants to recover the rent without seeking the eviction of his tenant has to file a suit for recovery of rent in the Civil Court. In case eviction is sought on the ground of default then he has to apply to the Rent Controller. The "rent due" includes time-barred rent. The recovery of rent and eviction of tenant are two distinct cases. It is a different matter that a landlord cannot recover the amount due to lapse of time but the liability would not be extinguished. An action to recover rent in a Court of law may not be available but eviction of tenant on the ground of default will still be available to the landlord. The contention that an eviction application is not entertainable on the ground of default of time-barred rent cannot be accepted. A tenant is entitled to retain possession of a premises on certain conditions including the payment of rent. Once it is established that he has defaulted in the payment of rent, he loses his right to occupy the premises. The word "default" connotes an element of negligence and failure of the tenant to fulfil his obligation under the law. In Muhammad Ahmad's case reliance was placed on Ashfaqur Rehman v. Mohammad Afzal PLD 1968 SC 230. It was observed that:-- "A Rent Controller acting under section 13(6), West Pakistan Urban Rent Restriction Ordinance, 1969, cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation.
' The propositions:
(i) that a time-barred debt is a debt due although the legal remedy in respect of it may be barred; and
(ii) that the Rent Controller is not a Court to attract the bar of the Limitation Act, arc well- established, but they do not necessarily lead to the conclusion that the provisions of section 13(6) of the Ordinance could be employed to deprive the tenant of a legal defence under the general law.
' The recovery of rent due from a tenant is not one of the primary objects of the Ordinance.
' It is within this limited intent that the words "all the rent due" are to be construed. Deposit of "all the rent due" and its payment to the landlord is not dependent on the ultimate decision on the action before the Rent Controller. For example the application for eviction may be dismissed, but the rent found due shall be paid to the landlord and in default such an order shall under section 17 be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. To this extent the determination of "all the rent due" in subsection (6) of section 13 by the Rent Controller is in the nature of an adjudication by a Court in a suit for recovery of arrears of rent."
5. This interpretation was given while considering the import of section 13(6) of the Ordinance.
Under this provision the Controller shall direct the tenant to deposit rent due from him and also deposit till the final decision of this case before the 15th day of each month the monthly rent. This provision is not meant for the recovery of rent. This order is tentative in nature. The decision of this Court in Ashfaqur Rehman's case has to be considered in the context of section 13(6) of the Ordinance.
6. It is well-established that limitation in personal action bars only the remedy and does not extinguish the right itself. The fact that remedy is barred by the law of limitation does not by itself end the right to which remedy relates. In Surat Municipality v. Sarifa Karunnissa AIR 1939 Born 494, it was observed as hereunder:- "The rule of limitation is rule of procedure, a branch of the adjective law, and does not either create or extinguish rights, except in the case of acquisition of title to immovable property by prescription under S.28, Limitation Act. It is only the remedy by way of a suit that is barred, but the right itself continues to exist; and if there is some other remedy by which that right can be enforced, the Limitation Act cannot come in the way. Thus, where the recovery of a debt is barred by lapse of time, the right to the debt is not extinguished, and if the debtor, without being aware of the bar of time pays up, he cannot sue the creditor to refund the money to him on the ground that his claim for recovery of the debt had become time-barred."
7. We approve this principle. In Maqbool Ahmad v. Begum Musarrat Shaukat Hayat Khan 1980 SCM R 750, it was held that:- "As pointed out by the learned Rent Controller that although the respondent could not demand the rent beyond 9-2-1964 (as the application was made on 9-2-1967), the petitioner was not precluded from paying time-barred rent to the respondent, Having himself stated in the challan that the rent was for the period from 6-12-1961 to 6-6-1964 it did not lie in his mouth to say that this be treated as rent for the disputed period. We may add that where a sum of money has been voluntarily appropriated towards a particular debt, the same cannot thereafter be adjusted against some other debt."
8. There is another aspect of the case. According to the petitioners, they had paid the rent for the months of August and September but no receipt was issued by the landlord. Thereafter they tendered the rent for the month of October, 1983 through money-order on 21-8-1983 but the same was refused by the landlord. The Courts below have not accepted this explanation of the petitioners. According to their statement, they had tendered the rent for the month of October, 1983 and thereafter started depositing rent in the Court. The deposit in Court was not conditional. Thus they had acknowledged their liability and accepted the entitlement of the landlord to recover the rent due from them, Once it is admitted that they deposited the entire rent in Court the period of limitation would extend by virtue of S.25(3) of the Contract Act. An acknowledgment under section 19 of Limitation Act and promise under section 25(3) of the Contract Act have the effect of fresh starting point of limitation. An acknowledgment under section 19, Limitation Act is required to be made before expiration of the period of limitation. A promise under section 25(3) of the Contract Act may be made after the period of limitation. Payment of a sum of money may be intended as acknowledgment of debt. A promise to make payment of time-barred rent on moral consideration may not be acceptable in law but if a person with full consciousness of mind promises to pay a debt which is due against him and which is barred by the statute of limitation the efficacy of such promises is now referred to the principle that a person may renounce the benefit of a law made for his own protection. Under section 25(3) Contract Act, a fresh period of limitation for a time-barred rent can be obtained. Payment or tender of time-barred rent is an absolute promise and is an agreement under section 25(3) of the Contract Act and constitutes an acknowledgment.
9. Additionally, a party cannot be allowed to say at one time that it had paid the rent and nothing was due against it and another time say that the rent claimed by landlord was barred by law. Even if he is not estopped the principle of approbation and reprobation will apply and he cannot be allowed to take this position.
10. The over all conclusion would he that time-barred rent does not preclude landlord for the enforcement of his right for eviction of his tenant on the ground E of default.
11. This petition has no force. The same is dismissed and leave to appeal is refused.