' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order of the learned District Judge, Haripur, passed in his capacity as an Appellate Authority under the West Pakistan Rent Restriction Ordinance, 1959" (hereinafter called as the Ordinance) whereby he upheld the order dated 22-4- 1992 of Mr. Muhammad Salim Khan, Rent Controller, Haripur, striking off the defence of the petitioner/tenant.
2. The facts leading to the present petition are briefly as follows: The Rent Controller, during the pendency of an application by the respondents, for ejectment from the disputed shop, inter alia, on the ground of personal need ordered the tenant/petitioner under section 13(6) of the Ordinance to deposit the arrears of rent from 1-1-1991 to 30-4-1991 at the rate of Rs,1,700 per mensem before 30- 6-1991 and continue paying rent before 10th of every month. The order of deposit of the arrears of rent, it appears, was duly complied with. The rent for the months of May and June, 1991 had been deposited before the aforesaid order. Pending decision of the application, the respondent moved on 30-9-1991 an application for striking off the defence of the petitioner on the ground that he had failed to deposit the rent for the month of August, 1991, before the 10th or, in any case, on the reopening of the Civil Courts on the Ist of September, 1991. The application was obviously resisted on the ground that due to summer vacations the Civil Courts remained closed, therefore, on the Ist of September, 1991, the petitioner made an application before the Rent Controller for deposit of rent for the months of August and September, 1991 and obtained the `challans' for the purpose but could not deposit it due to closure of business hours of the Bank. In any case, the rent was deposited on the 2nd of September, 1992 which, according to the petitioner, was not a wilful default.
The learned Rent Controller in his order dated 12-4-1992 observed that "no doubt the Court had remained closed during the summer vacations, but the Naib-Nazir of his Court was available for the job" and further that "before proceeding on vacations he had authorised a Magistrate of the First Class to sign the account registers and other urgent matters for the Presiding Officer" and, therefore, "the respondent could deposit the rent before 10-8-1991 but he failed to to so" and passed the impugned order striking off the petitioner's defence. An appeal preferred before the learned District Judge, as stated earlier, also proved unsuccessful.
3. The learned counsel appearing on behalf of the petitioner vehemently contended that words 'rent due' occurring in section 13(6) of the Ordinance would mean that the rent for the month ending on the last day of the month could be deposited before the 15th of every following month and not before 15th of the same month and placed implicit reliance on: (1) Ata Hussain v.
Muhammad Taqi Shah (PLD 1963 (W.P.) Baghdad-ul-Hadid 53), (2) Syed Masood Hussain and others v. Muhammad Saeed Khan and others (PLD 1965 (W.P.) Lahore 11) and (3) Abdul Qayyum v.
Muhammad Ishaq (PLD 1967 Lahore 1025). In this context, the submission of the learned counsel for the petitioner on the strength of the three cases cited above is that the rent for the month of August, 1991 could be validly deposited before the 15th of September, 1991 which had been done much earlier on the 2nd of September, 1991, therefore, the petitioner had committed no default within the contemplation of section 13(6) of the Ordinance.
4. In the first precedent case, on the 6th of September, 1961, the Rent Controller directed the tenant to deposit the arrears of rent before 16th of October, 1961. As regards the future rent, it was ordered that the same shall be deposited before the 5th of every month. The tenant applied on 6th of November, 1961, "for permission to deposit Rs,25 as the rent for October, 1961." The Rent Controller passed an order that the application was barred by time "which may be attached with the file".
Another application was moved seeking permission to deposit the rent because 5th of November, 1961 appened to be the Sunday. The learned Judge in Chamber held the view that the rent for the month of October, 1961 was to be deposited before the 5th of November and not on the 5th of November, 1961, therefore, the order of the Rent Controller striking off the defence of the tenant was upheld and that of the Appellate Authority condoning this delay was set aside.
5. In the second precedent case the rent for the month of May was deposited on the 5th of June and the rent for the month of August was deposited on the 5th of September, 1961. The 4th of June was holiday, therefore, it was held that "the respondents could validly deposit rent on the next day".
In this context, the provisions of section 10 of the General Clauses Act were invoked to hold that if a Court or Office is closed on the day when an act is to be performed therein, the act can be performed on the next opening day of the Court or Office. Again in the case of Abdul Qayyum cited above the learned Judge had indicated that he would accept the appeal and remand the case to the Rent Controller for striking a preliminary issue regarding the service of notice. However, while dictating the judgment, he discovered that subsequent to the passing of the impugned order, the Rent Controller had, on the 8th of April, 1964, ordered the ejectment of the appellant for his failure to deposit the rent for the month of April, 1964, before the 5th of March, 1964. In that case the tenant had deposited the rent one day later i,e,, on the 6th of March, 1964. In that case there is some mistake in the description of the months and if it is not so then it does not help the petitioner.
6. The ratio deducible from the two authorities of Ata Hussain and Syed Masood Hussain is that the rent for the current month would become due on its last day and could be validly deposited under section 13(6) of the Ordinance before 15th of the succeeding month and not before the 15th of the same month. Respectfully, we tend to adopt this interpretation of the words "rent due" occurring in the aforesaid section. In the context of construction that we have placed on the words 'rent due', we are also fortified by the dictum in the cases of: (1) Fazal Haque v. Abdul Latif Akhund (PLD 1975 Karachi 681) and (2) Muhammad Amin v. Mst. Nasim Begum and 2 others (1984 CLC 1745). In the last-mentioned case, while seeking guidance from Ch. Muhammad Siddique v. Muhammad Rashid (1982 SCMR 636) Manzoor Hussain Sial, J., as his Lordship then was, held that the words before "15th of the month mean a date which precedes 15th of the month".
7. Even otherwise, the question arises whether non-deposit of rent on Ist of September, 1991, in terms of the order of the Rent Controller in the circumstances of the case, merited striking off the petitioner's defence and straightaway warranted his ejectment. In other words, whether the petitioner, in the circumstances of this case, has not wilfully complied with the orders of the Rent Controller. On this point the Supreme Court in Ghulam Muhammad Khan Lundkhor v. Safdar Ali (PLD 1967 SC 530) observed as under:- "The word 'default' in legal terminology necessarily imports an element of negligence or fault and means something more than mere non-compliance. To establish default one must show that the noncompliance 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 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."
' It is, therefore, clear that in order to attract the provisions of section 13(6) of the Ordinance the mere non-compliance of the order of Rent Controller would not necessarily call for striking off the defence unless it is proved on record that the tenant acted negligently in not depositing the rent before the due date. Applying this principle to the case in hand, we notice that on the 1st of September, he got his application for deposit of rent duly processed, obtained the orders of the Rent Controller and got the challan forms prepared but by the time this process could be completed, the business hours of the relevant Bank were over. The business of getting his application for deposit processed was not within his control. It is common knowledge, how much dilly-dallying our officials in the Court adopt in processing such like application so as to reach the stage of obtaining the orders of the Presiding Officer and preparing the challans. The petitioner had obviously no control over all this. Thereafter, if the business hours of the Bank had been closed, the petitioner, in our view, had not acted negligently in not depositing rent on the Ist of September, 1991 and was, therefore, not guilty of wilful default.
8. The learned Rent Controller and the Appellate Authority both have perhaps by inadvertence taken the 10th of each month to be the statutory date for deposit of future rent, whereas the word 'fifteenth' had been substituted for the word 'fifth' occurring in setion 13(6) of the Ordinance by virtue of West Pakistan Ordinance No,XXI of 1965.
9. The learned counsel for the respondent/landlord, on the other hand, with reference to: (1)
Muhammad Mashood v. Nafis Fatima (1984 SCMR 1138), (2) Nasir Ahmad Shaikh v. Nahid A. Shaikh (1986 SCMR 1621), (3) Boota Khan v. Faiz All (1987 SCMR 1475) and (4) Muhammad Rafiq and others v. Barkat All (1988 SCMR 1526), urged that the plea of the petitioner that the words "before 15th of succeeding month "mean a date which precedes 15th of the month having been taken for the first time in this Court could not be legally adjudiated upon.
10. The learned counsel for the petitioner cited: (1) Haji Abdul Sattar v. Additional District Judge, Rawalpindi and others (1984 SCMR 925), (2) Malik Rehmatullah and another v. Mian Muhammad Shafi and another (1986 SCMR496) and (3) Nazar Muhammad and another v. Abdul Ghafoor and 3 others (PLD 1987 Quetta 141), to controvert the proposition raised on behalf of the respondent and urged that any point going to the root of the case could be raised the Constitutional petition.
11. We tend to affirm the contention of the learned counsel for the petitioner. In Abdul Ghani v.
Shoodar Khan (PLD 1964 Lahore 612) notwithstanding its omission in the petition itself to assail the vires of the Frontier Crimes Regulation (III of 1901), the challenge to the validity thereof as applied to North and South Waziristan was permitted to be argued on account of its importance. Similarly in Rehmatullah's case cited above as the question of jurisdiction was held as going to the root of the matter, the Supreme Court entertained it notwithstanding the contention that this point was not raised earlier. Earlier, the Supreme Court with reference to: (1) Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 SC 197) and (2) Rashid Ahmad v. State (PLD 1972 SC 271) held in Haji Abdul Sattar's case referred to above reiterated the principle that objection of jurisdiction of Tribunal if not taken before such Tribunal could validly be taken before the ,High Court in Constitutional jurisdiction.
12. Having taken notice of the case-law on the point we are of the considered view that interpretation of the word 'rent due' used in section 13(6) of the Ordinance not only goes to the root of the case but is of public importance touching rights of tenants and landlords throughout the country and involves the true interpretation of the words 'rent due' and the 'fifteenth day of each month' enacted in section 13(6) of the Ordinance which, as stated earlier, has been misconceived not only in this case but many other cases which have been taken to the Court in due course. We are, therefore, inclined to permit this plea to be argued in this petition. As this question goes to the very root of this matter, the contention that the point of true interpretation of the words 'rent due' and 'fifteenth day of each month' was not raised earlier is of no consequence and it can be raised in our Constitutional jurisdiction.
13. The upshot of the above discussion is that it was not a fit case to apply the provisions of section 13(6) of the Ordinance so as to strike off the petitioner's defence and summarily eject him from the disputed shop.
14. In the result, we find that the impugned orders of the learned Rent Controller as well as of the Appellate Authority are contrary to law laid down by the Superior Courts and of no legal effect. The case is remanded to the learned Rent Controller for further proceedings in the matter in accordance with law. In view of the legal propositions of law urged before us, the parties are left to bear their own costs.