' AJMAL MIAN, J.---This is an appeal with the leave of this Court of the widow of the deceased tenant against the concurrent judgments of the learned Rent Controller dated 2-9-1991, and the learned Judge in Chamber of the Sindh High Court dated 10-5-1992, passed in Rent Case No,759/1985, in F.R A. No, 223/1990, for ejectment on the ground of default in payment of electric charges since February 1988 till the filing of the above rent case in October 1988, amounting to Rs,571, in respect of the suit shop.
2. It appears that while granting leave the question of limitation was kept open as the petition was barred by time by 27 days. The petitioner has filed an application under Order 33, Rule 6 read with Order 13, Rule 1 of the Supreme Court Rules (hereinafter referred to as the 'Rules') for condonation of the delay on the ground that though her Advocate Mr. Nazim Hussain had obtained certified copy of the judgment on 26th May 1992, but he kept the judgment with himself and did not inform the petitioner. It has been further averred that petitioner came to know about the judgment when after receipt of a notice of the execution application on 4th August 1992, she contacted her above Advocate. It has also been averred that the petitioner enquired as to the reason from the above Advocate of not informing her about the judgment but she did not receive any satisfactory reply.
The petition for leave to appeal was in fact filed on 16th August 1992.
' No counter-affidavit has been filed by the respondent. However, Mr. Imran Ahmed, learned ASC appearing for the respondent, has opposed the above application on the ground that no sufficient cause has been shown. Reliance has been placed by him on the case of Muhammad Din and others v. Ghulam Muhammad Naseem Sindhu and others (PLD 1991 SC 1), in which it has been held that as the appellants had been diligently pursuing their remedy, it was a fit case where delay ought to be condoned. In the above report, the question was, whether an Intra-Court Appeal was competent in respect of a settlement matter, the proceedings in respect whereof were initiated under a direction issued by the Board of Revenue on 29-3-1975.
3. There cannot be any cavil with the proposition that a party who seeks condonation of delay in respect of limitation period is bound to show that he had been prosecuting diligently and that there was no lapse or negligence on his part or on the part of his agent. It also seems to be a settled proposition A that generally any negligence on the part of an Advocate of a party does not furnish a ground to that party to seek condonation of delay in respect of limitation period on the said ground. In the present case, the appellant is a widow. She is maintaining herself and the children from the earning from the shop wherein tailoring work has been going on since life of her deceased husband tenant. In the present case limitation period expired during the Summer Vacations of this Court, i,e, in July 1992. In this regard, it may be pertinent to refer to the case of Fateh Ali Khan v. Subedar Muhammad Khan (1971 SCM R 354), in which a Full Bench of this Court while dismissing a petition for leave to appeal, has held that section 4 of the Limitation Act, 1908, for excluding the period of vacation would not be attracted to as during summer vacation though the Court remained closed but office of the court opened for receiving petition. However, in the subsequent case, namely in the case of Fazal Karim and another v. Ghulam Jilani and others (1975 SCM R 452), a Bench of this Court comprising two learned Judges while dismissing a regular appeal without referring to the above earlier case, has taken a contrary view and has held as follows: "9. Having carefully considered the contentions raised by the counsel for the parties, we are convinced that the view taken by the learned Judge of the High Court was unexceptionable. From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision.
Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notification, the Office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word "Office" as used in the notification is not synonymous with "Court" as used in section 4 of the Limitation Act. The Court may be closed and yet the Office might still be open. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right. Even otherwise, it is doubtful that the word "petition" as used in the notification will cover a memorandum of appeal. I am therefore, clearly of the view that the appeal even though filed during the vacation could be filed on the re-opening of the Court and was, therefore, well within time. The authorities relied upon by the appellants are in point and the position is well settled. The only authority pressed into service on behalf of the appellants Nuchiyappa Mudali and others v. Ayyasami Ayyar referred to earlier proceeds on distinguishable facts. In that case the relevant Notification was in the following terms:- ' The Courts will be open between the hours of 4 and 5 p.m. On Tuesdays and Fridays during the recess for the reception of plaints, petitions, and other miscellaneous papers'."
' The difference in the terminology employed in the two Notifications is very material. The Notification pressed into service on behalf of the appellants uses the word "Office" which as stated earlier is not the same thing as "Court".
4. Since there seems to be conflict of view on the above question and as the appellant is a widow, we are inclined to condone the delay as if the latter view is to be accepted, there would be in fact no delay in filing of the above petition.
5. Adverting to the merits of the case, the case of the respondent, as pleaded in the rent case, as to the non-payment of electric charges, was stated in paras. 6, 7 and 8 which read as follows:
6. That the opponent is liable to pay the monthly rent as well as the Electric charges according to the consumption on Electric Meter NoAL092952 installed in the shop of the opponent for which K.E.S.C., has been issuing electric bills to the opponent.
7 . That the opponent has been making payment of electric charges up to January 1988, but thereafter the opponent has stopped the payment of Electric consumption charges from the month of February 1988, and no amount has been paid so far and as such has committed default in the payment of electric charges for a period of 9 months up to October 1988.
8. That the applicant verified the non-payment of electric charges from K.E.S.C. And the Controller billing has issued a statement alongwith their covering letter dated 6-11-1988. Photocopy of the letter and the statement is attached herewith and marked as Annexure 'B'."
6. The above paras. Were replied to by the petitioner in her Written Statement through paras. 5 to 7, which read as follows: "5. That in reply to para. 6, as submitted above the electric bills are directly paid to K.E.S.C. On receipt thereof from K.E.S.C. Further submitted in reply to this para. (6) that no electric bill is unpaid and the bills are paid promptly and regularly on receipt thereof from K.E.S.C. It is further submitted that opponent is not liable to make payment of electric bills to the applicant. The applicant is regularly in receipt of the agreed monthly of Rs,100 from the opponent as usual as stated above.
6. That contents of para. 7 are denied. It is submitted that no electric bill is unpaid to K.E.S.C. And the electric charges payment is made regularly against the bills on receipt thereof from K.E.S.C.
7. That contents of para. 8 are denied as the opponent has no knowledge of such facts as alleged in this para. And further submitted the applicant also did not provide any information in this regard to this opponent."
7. The respondent in her Attorney's affidavit-in-evidence, in paras. 5 and 6, had averred as follows: "5. That the K.E.S.C. Department has been issuing electric bills in respect of the premises of the opponent every month which were delivered to the persons present in the shop but the payment of electric charges was stopped by the opponent from the month of February 1988, and no electric charges at all were paid by the opponent up to the month of, November 1988, when this ejectment case was filed.
6. That the applicant was informed by the Controller Billing by its letter dated 8-11-1988, that the electric charge in the month of February was paid on 15-2-1988, for the month of January 1988, and thereafter no payment was made up to October 1988. Original letter with statement is attached herewith and marked as `A/2' and 'A/3'."
8. Whereas, the appellant in her affidavit-in-evidence had made the following averments in paras.
5 to 7:-- "5. That I say that electric bills are directly paid to the K.E.S.C. On receipt thereof from K.E.S.C. And I say that no electric bill is unpaid and the bills are paid promptly and regularly on receipt thereof from K.E.S.C. I say that I am not liable to make payment of electric bills to the applicant. The applicant is regularly in receipt of the agreed monthly rent of Rs,100 from me as usual as stated above.
6. That I say that no default has been made in the payment of the electric bills as alleged by the applicant, and the above proceedings have been filed by the applicant just to harass me after the death of my husband late Abdul Jabbar.
7. That I say that on my approach the K.E.S.C. Issued the bills which were not sent to me by the K.E.S.C. And on receipt of the same I also made payments thereof in time. The paid bills in original are filed herewith and marked as Annexures 'A' and 'W."
9. The respondent's attorney who happened to be her husband, in his cross-examination admitted as under: "I have not demanded electric charges in my previous application from the opponent. It is a fact that I had never demanded electric charges from opponent in respect of disputed shop since 20 years as the opponent used to pay directly to K.E.S.C. I have filed this application during the pendency of previous application and after the death of opponent. It is a fact that at present the widow of opponent has cleared up all the dues of K.E.S.C. I do not know whether after receipt of bill of K.E.S.C. The widow of opponent has paid the bill or she herself got duplicate bill from the authority as I have no concern with the payment of electricity bills."
10. The appellant's above averment in the above-quoted paras. Of her affidavit-in-evidence was not shaken in her cross-examination by the respondent. In view of the above state of evidence, in our view, the two Courts below have misread the evidence and wrongly concluded that there was default in payment of electric charges committed by the appellant.
' In this regard, it may be pertinent to refer to Explanation (i) to subsection (2) of section 13 of the late West Pakistan Rent Restriction Ordinance, 1959 (hereinafter referred to as the late Ordinance) and clause (i) of section 2 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) which read as follows: "Explanation (i)---Where the water charges or electricity charges or both are payable by the tenant to the landlord such charges shall be deemed rent; Cl. (i), S.2. "Rent" includes "where the water charges or electricity charges and such other charges which are payable by the tenant but are unpaid."
11. A perusal of the above-quoted Explanation (i) to subsection (2) of section 13 of the late Ordinance indicates that where the water charges or electric charges or both were payable by the tenant to the landlord, said charges were deemed to be rent for the purpose of default, whereas the above clause (i) of section 2 of the Ordinance defines rent as to include water charges, electric charges and such other charges which are payable by the tenant but are not paid. There seems to be a marked distinction between the above Explanation (i) to subsection (2) of section 13 of the late Ordinance and the definition of rent given in clause (i) of section 2 of the Ordinance, inasmuch as under the above Explanation (i) water charges or electric charges or both, if they were payable by the tenant to the landlord were to be deemed as rent for the purpose of default. Whereas, under the latter, the definition of rent itself includes not only water charges and electric charges but all other charges which are payable by the tenant and which are not paid by him. The above clause does not require that the above charges should be payable by a tenant to his landlord.
' At this juncture, it may be pertinent to refer to the judgment of this Court in the case of Muhammad Hussain Patel v. Habib Wali Muhammad (PLD 1981 SC 1), where this Court while construing above explanation ( to subsection (2) of section 13 of the late Ordinance, allowed the landlord's appeal on the ground that the tenant was guilty of default as he had not paid the agreed conservancy tax to the landlord. In this connection, it may be pertinent to refer to para. 25 of the judgment: "25. Therefore, if one has to go by what the parties, in the present case agreed to between themselves, then it is evident that for the use and occupation of the premises the tenant had agreed to pay a sum of Rs,450 which included some taxes mentioned therein and they also agreed to pay some extra amounts of money towards certain other taxes, including the conservancy charges. In other words these extra amounts mentioned in the Rent Deed, though to be paid in addition to the sum of 450 would also be due from the tenant. Had the agreement been that the tenant would be responsible to pay certain charges like electricity, water and conservancy charges directly to the concerned authorities, the position would have been different. But in the present case the tenant had specifically agreed that they would also be bound to pay the amounts of charges towards the aforementioned items to the landlord alongwith Rs,450. Therefore, according to the terms of the contract itself they made themselves liable for the payment not only of Rs,450 described by them specifically as 'rent', but also to pay an extra sum of money, inter alia, towards the conservancy charges which had been calculated at Rs,51.75 per month. Had the terms to be interpreted been simply 'rent' then it could have been argued that only the default in payment of that amount which specifically described by the parties as 'rent' would give rise to the liability of ejectment against the tenants and not the failure to pay any additional amount, though mentioned in the deed as payable by the tenants.
' But in the case in hand, the question, as agreed by both sides is the interpretation of the term 'rent due' the non-payment of which, according to section 13(2)(i) would render the tenant liable to ejectment."
12. In the present case, as pointed out hereinabove, the respondent's attorney in his cross- examination admitted the factum that the appellant had been paying electric charges directly to the K.E.S.C. And that at no point of time the respondent demanded the payment of the same from the appellant. The appellant's averment on oath that she had been paying electric charges regularly whenever she received the bill from the KESC also 'remained unrebutted. We would, therefore, allow the above appeal and set aside the judgments of the two Courts below as the concurrent finding on the question of default in payment of electric charges seems to be based on misreading of evidence. However, there will be no order as to costs.