1. AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 1-12- 1988 passed by a learned Single Judge of the High Court of Sindh in ERA. No,62 of 1986, filed by the respondent/landlord against the dismissal of his application under section 16(2) of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, by the learned 1st Senior Civil Judge and Rent Controller, Hyderabad, by his order dated 4-1-1986 in Rent Application No,522 of 1979, allowing the same and striking off the defence of the appellant/tenant. Leave to appeal was granted to consider the question, whether the act of depositing of rent which was to be performed by the appellant having fallen within the notified vacations, his conduct of making the deposit on the re-opening of the Court would be deemed to be the performance of the original act on time with reference to section 9 of the West Pakistan General Clauses Act, 1956, hereinafter referred to as the Act.
2. 2.The facts to be noted are that the respondent filed aforesaid rent application for ejectment on the ground of default. Upon respondent's application under Section 16(1) of the Ordinance, the learned Rent Controller passed a tentative rent order on 3-3-1983. The operative portion of the aforesaid order reads as follows:- "After giving the due consideration to the contentions of both the parties and after perusing the record carefully, 1, in the interest of justice, pass this order tentatively and direct the opponent to deposit Rs,1,30,500 in Court being the arrears of rent from May, 1979, to December, 1982, at rate of Rs,3,750 per month (Total amount comes to Rs,1,65,000 less Rs,34,500 already deposited by opponent in Court Rs,1,30,500 only) on or before 30th May, 1983. The opponent is further directed to deposit future monthly rent commencing from the month of January, 1983, at the same rate of Rs,3,750 in Court on or before 10th of each succeeding month i,e, rent of January 1983 should be deposited on or before 10th February, 1983, and so on."
3. 3.It appears that pursuant to the above order, the appellant deposited the arrears of rent as well as monthly rent till the deposit of rent for the month of May, 1985, which was deposited on 1-7-1985 and not on or before 10-6-1985. Thereupon, the respondent filed an application under Section 16(2) of the Ordinance in or about August, 1985, on the ground of default of the above tentative rent order for the month of May, 1985. To the above application, the appellant filed a counter-affidavit on which in paras 3 to 5, the following averments were made:- "(3) That I deposited the rent for the month of May, 1985, on 1st July, 1985, the very first opening day after summer vacations of the Civil Courts under the bona fide impression in good faith that the Civil Courts are closed and the rent is not accepted in the month of June due to vacations holidays.
(4) That there is thus no wilful default in depositing rent for the month of May, 1985.
(5) That I have deposited very large amount in Court and have been regularly depositing monthly rent in the past as is evident on record."
4. 4.It may be pointed out that no rejoinder to the above counter-affidavit was filed by the respondent. Be that as it may, the learned Rent Controller, after hearing the parties, dismissed the respondent's above application for the following reasons recorded in the order:- I have perused the objections of the Advocate for the opponent and report of the Nazir. The rent for month of May, 1985, was to deposited on or before the 10th of June but since in the month of June there was vacation and the rent was not acceptable and it was 1st July 1985 was the opening day.
5. The report of Nazir clearly shows that rent for the month of May, 1985, has been deposited in Court on 1-7-1985, therefore, there is no default in the rent for the month of May, 1985.
6. I therefore, dismiss the application with no order as to costs."
7. Against the above order, the respondent filed aforesaid F.R.A. In the High Court, which was allowed by the learned Judge in chambers by placing reliance on the judgment of this Court in the case of Ahmad Azpez Zia v. Messrs Bisvil Spinners Ltd. And others 1987 SCMR 542 and the appellant's defence was ordered to be struck off for non-compliance with the tenative rent order. The appellant thereafter filed a petition for leave to appeal, which was granted to consider the above question.
8. 5.In support of the above appeal, Mr.K.A.Ghani learned A.O.R. Appearing for the appellant, has vehemently urged as follows:-
(i) that since during the month of June, 1985, Hyderabad District Court was closed for long summer vacations upto 30-6-1985, the appellant was justified in depositing the rent for the month of May, 1985, on 1-7-1985 on the first day of re-opening of the Court and, therefore, the learned Rent Controller was justified in declining the respondent's above application under Section 16(2) of the Ordinance and the High Court was not justified in reversing the above order of the Rent Controller;
(ii) that, in any case, the appellant had been depositing rent regularly in compliance of the above tentative rent order and that if there was any alleged default for the month of May, 1985, the same was on account of the belief on the part of the appellant that the rent could be deposited on the re-opening of the Court on 1-7-1985;
(iii) that since the learned Rent Controller had exercised discretion in favour of the appellant by declining respondent's above application under section 16(2) of the Ordinance, the High Court should not have interfered with the above discretion. On the other hand, Mr. S. Zaki Muhammad, learned Advocate Supreme Court appearing for the respondent, has made the following submissions:-
(i) that section 9 of the Act cannot be pressed into service as it does not cover long vacations but refers to "a certain day" on which the Court or office is closed;
(ii) that the Nazir's report indicates that the appellant had deposited rent on three occasions in the month of June, 1983 and 1984 namely, on 8-6-1983, 11-6-1983 and 10-6-1984 and the appellant's above plea that he was under the belief that he could deposit the rent on re-opening of the Court, is belied;
(iii) that since there was admittedly default of the tentative rent order, the Rent Controller was obliged to order the striking off defence which he failed to do so and, hence, the High Court was justified in rectifying the above illegality.
9. 6.Mr. K.A. Ghani, in furtherance of his above submissions, has referred to section 9 of the Act and the following cases. It may be pertinent to reproduce section 9 of the Act, which reads as follows:- "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."
10. A perusal of the above section indicates that it provides that 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 and if the Court or office is closed on such day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken within the due time if it is done or taken on the next day afterwards on which the Court or office is open. It may further be noticed that the proviso to the above section excludes the application of the section to any act or proceeding to which the Limitation Act, 1908, applies.
11. 7.We may now revert to the cases relied upon by Mr.K.A.Ghani, learned counsel for the appellant:--
(i) Akbar Ali v. Bagh Din and others (1985 SCMR 1198); in which the facts were that, while decreeing a pre-emption suit, inter alia it was ordered that the plaintiff shall deposit the balance of sale price of Rs,83,200 upto 5-2-1977, failing which the suit shall stand dismissed. It appears that 5-21977 was declared as a holiday, whereas 6-2-1977 was a closed holiday, being Sunday, and on 7-2-1977 the learned Civil Judge was on leave. The plaintiff made an application on 8-2-1977 seeking extension of time for making the deposit, which was refused on the ground that the Court had become finictus officio. The appeal filed against the above order in the High Court, also failed. A petition for leave to appeal was filed in this Court, which was declined but following observations were made with reference to section 9 of the General Clauses Act:-- The learned counsel for the petitioner invoked before us section 9 of the General Clauses Act read with Order XX, rule 14 of the C.P.C. For claiming a right of depositing the amount on 8-2-1977.
12. Besides, it is contended that he had a good ground for being excused in the matter. The fact that the petitioner had applied for extension of time when the Court had become functus officio is not in dispute. It had become functus officio in view of this Court's decision in Shah Wali v. Ghulani Din alias Gaman and another PLD 1966 SC 983. The benefit of section 9 of the General Clauses Act could be claimed by a prayer not for extending the time for deposit but for depositing the amount or had deposited the amount on 7-2-1977. In the circumstances of the case, we consider that it is not a fit case for grant of leave to appeal. The petition is, therefore, dismissed."
(ii) Messrs Bisvil Spinners Ltd. And 2 others v. Ahmad Aziz Zia and another 1985 CLC 1207; In the above case, the facts were that the landlord filed ejectment case against the petitioners in which a tentative rent order under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the late Ordinance, was passed, of which default was committed inasmuch as the rent for the month of July, 1980, instead of depositing before 15-8- 1980, was deposited on 19-8-1980. Thereupon, the landlord filed an application under section 13(6) of the late Ordinance. The learned Rent Controller by a common order disposed of the case on merits as well as the landlord's application under section 13(6) of the late Ordinance and dismissed both. Thereupon, the landlord filed an appeal which was allowed by the learned Additional District Judge on the ground of noncompliance of the tentative rent order. The above order of the Additional District Judge was assailed through a constitution petition which was allowed by a learned Single Judge of the Lahore High Court by placing reliance on section 9 of the Act. The relevant portion of the judgment reads as follows:- The principle contained in section 9 quoted above, lends 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 legitimately rely on the concession granted to him on the rule of law enacted in section 9 of the General Clauses 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 he 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.
13. 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 tenant had deposited the rent on the day of reopening of the Civil Court. He cannot, therefore, be penalized if he deposited the rent on 19th of August, 1980. Speaking with immense respect 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 1987 CLC 1189 which has received the approval of Supreme Court of Pakistan."
(iii) Muhammad Shabbir v. Haji Ghulam Sabir 1987 CLC 1189; in which the facts were that the appellant/tenant's defence was struck off on the ground of non- compliance of the tentative rent order. His appeal before the learned Additional District Judge also failed and so also his second appeal before the High Court. However, Mr. KA. Ghani has relied upon the following observations, which have some bearing on the question in issue:- "5.There is no dispute that the appellants were required to deposit the rent for the month of July, 1974, before 15th August, 1974, in accordance with the order passed by the 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 wilful default in depositing the rent for the month of July in the month of September. The appellants' 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 the 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 respondent. 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 the learned Rent Controller was justified in striking off their defence. The learned Rent Controller had no option in the matter as has been held in Ghulam Muhammad Khan Lundkhor v. Sardar Ali PLD 1967 SC 530, Messrs Ansari Brothers v. Holy Trinity Church Trust PLD 1971 SC 700 and Syed Ghulam Shah Bokhari v. Muhammad Saeed Akhtar 1972 SCM R 428."
(iv) Krishna Dhan v. Ummatul Zohra Begum AIR (36) 1949 Allahabad 209; In the above case, the appellants were to deposit the security money within the period of six weeks from the date of the grant of certificate for filing appeal in the Privy Council under Order 45, Rule 7, C.P.C. The six weeks within which security could be deposited expired during the High Court vacations. The question before a Division Bench of the Allahabad High Court was, whether deposit of the security amount on the reopening day of the Court was within time. It was urged before the learned Judges of the Division Bench that since the High Court office was open, section 10 of the General Clauses Act, 1897 (which corresponds to section 9 of the Act) could not have been pressed into service. However, the above submission did not find favour with the learned Judges who, while rejecting the above contention, observed as follows:- "The six weeks within which security could be deposited expired during the High Court vacation. If the period expires on a closed holiday, it is not disputed that the time would be excluded in computing the period of six weeks. This is done under section 10, General Clauses Act (X of 1897), which provides that whereunder any Central 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. The argument against excluding the period of the High Court vacation is that during this period, or at any rate, a part of it, the High Court Office is open and it has in the past been receiving the security money and other deposits. The fact that to prevent delay the High Court Office receives deposits during the vacation cannot help in the determination of the question. Learned counsel for the respondent has urged that in section 10, General Clauses Act, the words "Court" or 'Office" have both been used and, if the money can be deposited in the High Court Office during the High Court vacation when the office is open, section 10, General Clauses Act, will not apply. The security money which has to be deposited under 0. 45, R.7, Civil P.C.
14. Is to be deposited in the Court. The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open. There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the Ministerial office attached to the Court are an office within the meaning of the term in section 10, General Clauses Act and they have a separate existence from the Court.
(2) We are, therefore, of the opinion that the money having been deposited on the day the Court re-opened after the High Court vacation and the time for depositing having expired during the vacation the deposit was made within time. The money may be accepted. The office may proceed."
(v) Rakhadoo Issoo Kohari v. Narayan and others AIR 1959 Madhya Pradesh 352; In the above case, the plaintiff filed a suit for redemption of a mortgage. A consent decree was eventually passed whereby defendant undertook to place the plaintiff in possession of the land upon his making payment of Rs,1,450 to the defendant on or before 31-5-1954, failing which the plaintiff's suit was to stand dismissed. The Civil Courts were closed on 31-5-1954 on account of summer vacation and were re-opened on 14-6-1954. The plaintiff brought the amount of Rs,1,450 on 14-6-1954 for depositing it in Court. Thereupon, the Presiding Officer sent a memo to the Nazir to receive the amount. However, the Nazir directed the plaintiff to bring the amount on the next day as it was tendered after the treasury hours. The amount was then deposited in the Court on 15-6-1954.
15. The defendant raised an objection before the trial Court for the non-compliance of the terms of the decree, which objection was overruled. However, upon appeal, it was sustained by the learned Appellate Court. Thereupon, a second appeal was filed which was allowed by a learned Single Judge of the Madhya Pradesh High Court and it was held that the above tender on the first day of re-opening of the Court was a good tender in view of section 10 of the General Clauses Act. The relevant portion of the judgment reads as follows:-
(6) The amount was actually tendered in Court by the appellant on 14-6-1954 when it reopened after the summer vacation. It was not through his fault that it was not accepted on that date. As he had brought the money within the Court hours, the tender was valid: see Mahbub Ali v. Bishen Singh AIR 1944 Lah.
470. Under section 10 of the General Clauses Act (Central), which is applicable to the case, the payment could be made on 14-6-1954 which was the first working day of the Court after the summer vacation. In this view, the appellant must be deemed to have satisfied his part of the decree and was properly placed in possession of the mortgage fields."
(vi) ) Akhtar Bibi and others v. Rajlakshmi Debi and others 1959 CWN 684; in which the facts were that one Manjur Ahmed on 24-8-1953 obtained a Rule from the Calcutta High Court calling upon the opposite parties to show-cause why an order passed in a reference under section 18 of the Land Acquisition Act should not be set aside or such other order or orders passed as the Court may deem fit and proper. It appears that Manjur Ahmed died on 7-7-1954 leaving behind 11 persons as legal heirs, 10 of them filed application for bringing them on record in place of the deceased. The opposite side raised an objection on the ground of limitation and attempted to distinguish between closing of the Court and closing of office of the Court, but a Division Bench of the Calcutta High Court, on the basis of section 4 of the Limitation Act, held that since the Court was closed upto 21-11-1954, the said application could have been filed by 22-11-1954 which was in fact filed on that date and, therefore, was within time. It may be advantageous to reproduce the reasonings recorded by the learned Judges of the Division Bench, which read as follows:-- "This brings us to the main objection raised on behalf of the opposite party, namely, that the application is barred by limitation. Manjur Ahmed's death having taken place admittedly on the 7th of July, 1954, 90 days expired on the 5th of October, 1954. The application would, therefore, ordinarily be barred by limitation unless it was presented on or before the 5th of October. The only way in which the application can save this position is by application of section 4 of the Limitation Act which is in these words: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.'
16. As I have indicated earlier, the Court was closed on the 5th of October, and continued to remain closed up to the 21st of November, and reopened on the 22nd of November so that, on the face of it, the position appears to be that limitation was saved. It is, however, contended on behalf of the opposite party that the word Court in "The Court is closed" and "the Court re-opens" should be given the limitated meaning of "Court's office". So, it is argued that while the period of limitation in this case expired on the 5th of October, when the office was also closed, this application may, under section 4 of the Limitation Act, have been presented on the 29th of October, when the office re-opened and limitation cannot be escaped by making it on the date the Court as a whole re- opened, namely, the 22nd of November. Our attention has been drawn to a notification which was published in these words: "It is hereby notified that the High Court Appellate side, will be closed for the Long Vacation from Friday, the 10th September, to Saturday, the 20th November, 1954, both days inclusive----The office of the Appellate side will be closed from Sunday, the 26th September, to Thursday, the 28th October, 1954, both days inclusive."
17. I must assume for the purpose of this case that this notification was issued under the authority of this Court and represents the correct state of facts as regards the period for which the High Court as a whole was closed and the period during which the office on the Appellate side remained closed. I am unable, however, to see anything in this notification to justify the conclusion that the Court was not closed within the meaning of section 4 of the Limitation Act during the period when the office was open. The offices of the Court are not the same thing as the Court. The Legislature in its wisdom used the words "the Court is closed". We shall be legislating instead of interpreting the statute if for the words "the Court is closed", we read the words "the office of the Court is closed"."
(vii) Visumal Chatumal Khilnani v. Ali Bak hsh and others PLD 1968 Karachi 521; In the above case, the facts were that pursuant to a tentative rent order passed under section 13(6) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, the rent for the months of May and June, 1964, was deposited on 4-7-1964. The explanation was that the rent for the months of May, 1964 could not be deposited before the 5th June as the District Court was closed on account of its summer vacation and that the rent for the months of May and June, 1964, was deposited on 4-7-1964 instead of 1-7-1964 i,e, the first day of re-opening of the Court as the child of respondent No, 1/tenant was seriously ill in terms of the medical certificate and he was out of Karachi and his wife, who was entrusted with the work of depositing of rent, was looking after the child. The Rent Controller did not accept the above explanation and ordered the striking off of defence. However, upon appeal, the learned Additional District Judge found that there was no wilful default on the part of the tenant and, therefore, set aside the order of the Rent Controller. A second appeal was filed in the High Court, which was dismissed by a learned Single Judge and, while dismissing, the following observations were made:-- "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 respondents were justified in presuming that deposit of rent will not be accepted during the vacation. Their bona fides can also be judged from 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 1st July, when the District Court re-opened 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 rent in compliance with the order of the Rent Controller."
(viii) Muhammad Ishaq v. Abdul Hague and another PLD 1978 Karachi 898; in which the tenant had filed second appeal against the ejectment order. He was granted stay by the High Court subject to depositing of rent in terms of section 13(6) of the late Ordinance. It appears that the rent for the month of May, 1977, was not deposited before 15th June, 1977, as was ordered but was deposited on 5-7-1977. The landlord filed an application under section 13(6) of the late Ordinance in the above second appeal, which was heard alongwith the main appeal. From the relevant portion of the above judgment, it seems that the learned Judge in chambers was of the view that since the Civil Courts of Hyderabad were closed on account of vacation in the month of June, 1977, and as no work was transacted in the Courts except urgent judicial work, the tenant could have deposited the above rent on first day of re-opening of the Courts, but factually he deposited three days late after re-opening of the Court, which was condoned on the ground that the tenant could believe that he could deposit rent before 15-7-1977. The relevant portion of the judgment reads as follows:- "It is not disputed that after the appellant was granted the stay, deposited the arrears within time and also continued to deposit future monthly rent within time and also regularly for 5 years, which went to show that the appellant was conscious of his obligation as a tenant. It is also not disputed that the Civil Courts, Hyderabad remain on vacations in the month of June and no civil work is transacted in the Courts except urgent judicial work. This is confirmed even by the application under section 13(6) made by the respondents, inasmuch as, the allegation made therein is that the appellant had deposited the rent late by 3 days. In view of this admitted position, it could well be that the appellant bona fide believed that he could deposit rent before 15th July, although he deposited it on 5th of July, and no counter-affidavit or rejoinder has been filed by the respondents challenging the assertion of the appellant made in his affidavit. That being so, I have no reason to disbelieve the appellant and I hold that, in the circumstances of the case, appellant's failure to deposit the rent in time for one month, after he had been depositing rent regularly for five years, was not wilful and it does not call for striking off his defence. And then, having held, after being fully convinced, that the rent order and the order striking off the defence of the appellant were improperly passed and allowed the appeal. It will also not be just and proper in strike off the defence of the appellant at this stage, although I have held the default to be not wilful independently of it."
(ix) Moinul Hague G. Shaikh v. Mst. Zulekha and 4 others 1979 CLC 650; In the above case, the facts were that the Rent Controller by his tentative rent order passed on 2-4- 1976, directed the appellant/tenant to deposit the arrears of rent from 19-1-1960 to April, 1967, less Rs, 3,0(X) the amount already received by the landlord before 15-7-1967 and future rent before 15th of every following month. It appears that rent for the month of May, 1969, which was required to be deposited before 15-6-1969 was not deposited until 3-7-1969. The arrears of rent including time- barred rent was deposited by the tenant before 15-7-1969. The rent for the month of July, 1969, was deposited on 16-8-1969. The landlord filed an application for striking off tenant's defence under section 13(6) of the late Ordinance. The explanation given by the tenant for the month of May, 1969, was that June was summar vacation and he was under a bona fide impression that he could not deposit the rent in the Court and, therefore, immediately on re-opening of the Court on 1-7-1969, his Advocate sought to deposit the same, but as the file was not traceable, he could not do so on that date and the succeeding day (i,e, Sunday), being holiday, the deposit was made on the following day and. Therefore, there was no default. As regards the rent for July, 1969, the explanation given was that 14-7-1969 was holiday and, therefore, rent was tendered on 15-7-1969 but could not be deposited due to rush in the Court and, therefore, the same was deposited on the next day. The above explanation did not find favour with the two Courts below, but upon a second appeal in the High Court, the learned Judge set aside the order of striking off defence of the tenant and inter alia observed as follows:- "In the alternative I am of the view that an explanation had been offered by the person not less than an Advocate who has sworn an affidavit to the effect that he came to the Court on the reopening of the Court on 1st of July, 1967, and could not deposit the rent as the file was not traceable, and since no rejoinder was filed to this counter-affidavit there was no reason not to accept this explanation. As regards the failure of the tenant to deposit the rent in June, the month of vacation I refer to a case reported in Kisumal Chatumal Khilnani v. Ali Bakhsh and others PLD 1968 Kar. 521 and Muhammad Ishaq v. Abdul Hague and another PLD 1978 Kar. 898 wherein it has been held that a tenant was entitled to assume that because of the closure of Court rent would not be accepted during vacation.
18. 6.The result, therefore, is that this appeal is allowed but in the circumstances there will be no order as to costs."
19. 8.We may now revert back to the judgment of this Court in the case of Ahmad Aziz Zia v. Messrs Bisvil Spinners Ltd. And others 1978 SCMR 542 relied upon heavily by the learned Judge in Chambers and also by the learned counsel for the respondent. At the outset it may be pointed out that by this judgment, this Court allowed the appeal of the landlord against the judgment of a learned Single Judge of the Lahore High Court passed by him in exercise of Constitutional jurisdiction setting aside the order of Additional District Judge, Lahore, striking off tenant's defence referred to hereinabove at S.No,2, namely, Messrs Bisvil Spinners Ltd. And 2 others v. Ahmad Aziz Zia.
20. Since the above judgment of the Lahore High Court has been set aside by this Court, it has lost its significance. It is not necessary to repeat the facts as they have been narrated in context with the above Lahore judgment. However, it may be pertinent to point out that in the above case, the Rent Controller had directed that the rent was to be deposited in the Government Treasury and not in the Court and, therefore, this Court, while allowing the appeal, has highlighted the factum that section 9 of the Act could not have been pressed into service as the Treasury Office was not closed at the relevant time. It may also be pointed out that in the above judgment of this Court, reference was also made to the three judgments relied upon by the learned Judge in chambers while allowing the writ petition namely, (i) Ghulam Muhammad Khan Lundkhor v. Safdar Ali, (ii) Visumal Chatumal Khilnani v. Ali Bakhsh (supra), and (iii) Muhammad Shabbir v. Haji Ghulam Sabir 1987 CLC 1189. It was not held that the above cases have been wrongly decided. However, the facts of the case in hand were distinguished. It was pointed out that it was purely a question of fact, whether there was lapse on the part of the tenant not to deposit rent for the month of July, 1980, and that the learned Judge in chambers was not justified in setting aside a finding of fact on the above question recorded by the learned Additional District Judge, in exercise of constitutional jurisdiction. The relevant portion of the above judgment reads as follows:-- 6.Admittedly, in this case the rent for the month of July, 1980 was not deposited by respondent No,1 within the time fixed by the learned Rent Controller. It was purely a question of fact whether this lapse on its part was due to a bona fide mistake not involving any element of negligence. In support of this fmding the learned Additional District Judge referred to a number of circumstances.
21. While upsetting this faming which was one of fact the learned Single Judge did not take notice of any of these circumstances but proceeded to base his order on the reported judgments mentioned above. In these reported cases the delay in depositing the rent on account of the annual vacation of the Civil Courts was no doubt held as not amounting to default, but they did not lay down any rule of law to be rigidly followed in all cases irrespective of the factual position. The present case had its own features which distinguished it from the reported cases upon which the learned Single Judge relied. Thus, as the learned Additional District Judge pointed out, the rent was to be deposited in the treasury; for, doing so the permission of the Rent Controller was neither necessary nor respondent had in the past ever cared to obtain it before making the deposit.
22. Consequently, it was of no consequence whether the Civil Courts were closed or not; further in the previous years, that is, August, 1978 and August, 1979, respondent had felt no difficulty in depositing the rent for month of July within the prescribed time; even when respondent deposited the rent on 19-8-1980, it did not obtain the permission of the Rent Controller. It may also be mentioned that respondent has offered no explanation that when it felt difficulty in depositing the rent for the month of July, why it did not take the advice of its counsel prior to 18-8-1980. Without examining these features the learned Single Judge proceeded to reverse a finding of fact which he could not ordinarily do in exercise of the constitutional jurisdiction of High Court. Reference in this context is invited to Muhammad Hussain Munir v. Sikandar and others PLD 19;1 'IC 139."
23. 7.The reference to the provisions of section 9 of the Gerneral Clauses Act was entirely uncalled for in this case. This section reads as follows:-- "The above judgment of this Court seems to he distinguishable from the present case for the reasons, firstly, that the learned Rent Controller had ordered depositing of the rent in the Government Treasury and not in the Court as was ordered in the present case; secondly, the learned Judge in chambers interfered with the finding of fact arrived at by the Additional District Judge in exercise of constitutional jurisdiction and not in exercise of appellate jurisdiction which stands on different footing as to the scope; and third in the present case the Rent Controller had exercised discretion in favour of the tenant, whereas the first Appellate Court had interfered with the above discretion by setting aside the judgment of the Rent Controller."
24. 9.It may be advantageous to refer to the celebrated judgment of Hamoodur Rehman, J. (as his Lordship then was) in the case Ghulam Muhammad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530, in which his Lordship dilated upon the scope of subsection (6) of section 13 of the late Ordinance and in that context, the word "default" was construed as follows:- "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere noncompliance. To establish default one must show that the non-compliance has been due to some avoidable cause, for, a person ought not to be made liable for a failure due to some cause for which he is, in no way, responsible or which was beyond his control. It is not lightly to be presumed that the law intends to cause injustice or hardship, thus unless the Legislature has made its intention clear that construction must be preferred which will prevent manifest injustice and obviate hardship. On this principle too the word "default" should mean an act done in breach of a duty or in disregard of an order or direction."
25. 10.Having referred to the case law and having held that the decision of this Court in the case of Ahmad Aziz Zia v. Messrs Bisvil Spinners Ltd. And others (supra) is distinguishable from the facts of the present case, we may now revert to the question on which leave has been granted noticed hereinabove in para.l. It may be observed that section 9 of the Act can be equated with section 4 of the Limitation Act, which has been relied upon in the Calcutta High Court's judgment in the case of Akhtar Bibi and others v. Rajlakshmi Debi and others (supra), the former section has already been dealt with hereinabove. The effect of it is that if under any West Pakistan Act, any act or proceeding is to be taken or initiated on certain day or within specified period and that the due date falls on a day when the Court or office is closed, it can be taken or initiated on the first reopening day of the Court or office concerned. The latter section provides that "where the period of limitation prescribed for any suit, appeal, or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens". It may be pointed out that the object of both the sections seems to be to allow the exclusion of the period during which the Court or office remained closed and allow a party to perform act or to initiate legal proceedings on the first day of re-opening of the Court or office and, therefore, the judgments on section 4 of the Limitation Act can be pressed into service while construing section 9 of the Act and vice versa.
26. In the case of Akbar Ali v. Bagh Din and others (supra), this Court was inclined to take the view that the pre-emptor could deposit the balance of the sale price on the first day of re-opening of the Court after its vacation as the period allowed for doing so had expired during the vacation and that section 9 of the Act could have been pressed into service. It may further be observed that in the case of Muhammad Shabbir v. Haji Ghulam Sabir (supra) the learned Judge in chambers of the Lahore High Court was of the view that if the tenant would have deposited the rent for the months of July and August, 1974, on the first day of reopening of the Court on 1-9-1974 after the summer vacation during the month of August, it would have been within time, but since the same was deposited on 11-9-1974 i,e, after 10 days of re-opening of the Court, there was breach of the Rent Controller's tentative rent order. It seems that a petition for leave to appeal against the above judgment was declined by this Court. The Karachi decisions in the cases of Visumal Chatumal Khilnani v. All Bakhsh and others, Muhammad Ishaq v. Abdul Haque and another and Moinul Haque G. Sheikh v. Mst. Zulekha and 4 others (supra) referred to hereinabove in para 7 (vii), (viii) and ( are in line with the above Lahore view, the learned author Judges, namely Noorul Arfm, Abdul Hafeez Memon and Fakhruddin G. Ebrahim JJ. (as they were then), all of them were of the view that a tenant could deposit rent in compliance of the tentative rent order on the first day of re-opening of the Court after its vacation if the due date for deposit had fallen during the vacation period. The cases of Indian jurisdiction referred to hereinabove also support the view that if an act was due to be performed by a party on a day when the Court was closed on account of vacation or because of some other holiday or holidays, the act can be performed on the first day of re-opening of the Court because of section 10 of the General Clauses Act, 1897 (which corresponds to section 9 of the Act) or by virtue of section 4 of the Limitation Act as the case may he.
11. It may again be observed that in the present case, pursuant to the tentative rent order, the rent was to be deposited with Court and not in Government Treasury office as per order of the Rent Controller reproduced hereinabove in para 2 and also because of the practice obtaining in the Province of Sindh at the relevant time and as the date of depositing of tentative rent order, namely, on or before 10th of each month was in terms of section 16 (1) of the Ordinance, section 9 of the Act could have been pressed into service by the appellant and, therefore, deposit of rent for the month of May, 1985, on the first day of re-opening of the Civil Courts in Hyderabad on 1-7-1985 is to be considered as done in due time in terms of above section 9 of the Act. The factum that in 1983 and 1984 the appellant had deposited rent thrice in the month of June, was of no consequence. The fact that the Civil Courts' offices are open during vacation for attending urgent works, would not alter the above position as the Court and is office are one and if the Court is closed on account of its vacation by virtue of a notification, it cannot be urged that its office is open. The words 'any Court or office' used in section 9 of the Act have to be construed disjunctively. For the purpose of the above section, the word 'Court' would include its office and the word "office" would not include Court. The above aspect has been dealt with by the learned Judges of the Division Bench of the Allahabad High Court in the case of Krishna Dhan v. Ummatual Zohra Begum (supra) and also by the learned Judges of the Division Bench of the Calcutta High Court in aforesaid case of Akhtar Bibi and others v. Rajlakshmi Debi and others (supra). In the latter case, inter alia it was contended that the words "the Court is closed" and "the Court re-opens" used in section 4 of the Limitation Act, should be given limited meaning of "Court's office". The above contention was repelled and it was held that, "the Legislature in its wisdom used the words "Court is closed". We shall be legislating instead of interpreting the statute if the words "the Court is dosed", we read the words the "office of the Court is closed". .At this juncture, it may be pertinent to reproduce the relevant portion of notification dated 22-4-1985, whereby the summer vacations for the District and subordinate Courts were notified, which reads as follows:-- "In exercise of the powers conferred by section 25(1) of the West Pakistan Civil Courts Ordinance II of 1962, as adopted and all powers enabling in this behalf, the Chief Justice and the Judges are pleased to notify for general information that in the year 1985, all Civil Courts, original and appellate, subordinate to the High Court of Sindh will remain closed for annual summer vacation as under:-- (1)District and Subordinate Courts in the Districts of Karachi, Thatta, Hyderabad, Badin, Tharparker, Sanghar and Nawabshah.From 1-7-1985 to 30-6-1985.
27. (2)District and Subordinate Courts in the Districts of Khairpur, Dadu, Larkana, Shikarpur, Sukkur and Jacobabad.From 1-7-1985 to 31-7-1985."
28. It may be noticed that the above notification does not provide that the offices of the Courts named therein would remain open.
29. 12.We may also observe that from the Nazir's report, it seems that the appellant has been regularly depositing rent in terms of the Rent Controller's tentative rent order since, 1983 and lacs of rupees have been deposited and, therefore, his contention that he believed that he could deposit rent for the month of May, on re-opening of the Court, cannot be termed as untenable. There seems to be no default within the ambit of the judgment of this Court in the case of Ghulam Muhammad Khan Lundkhor (supra). The learned Rent Controller was justified in declining the respondent's application under section 16(2) of the Ordinance and the interference by the High Court was not warranted. We, therefore, allow the above appeal and set aside High Court judgment, but there will be to order as to costs.