GHULAM RASOOL BHATTI Versus ADDITIONAL DISTRICT JUDGE, LAHORE

The petitioner, Ghulam Rasool Bhatti, has moved this Constitutional petition praying therein that the impugned orders, dated 25‑10‑1987 and 15‑2‑1986 respectively passed by the learned Additional District Judge and the learned Rent Controller, Lahore, may be declared without lawful authority and of no legal consequence.

2. In brief the case is that respondent No.3, Naveed Nawazish Malik, moved an eviction petition under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 for ejectment of the petitioner from Shop No.4, Property No.7/C, Commercial Zone, Liberty Market, Gulberg, Lahore, on 31‑5‑1986 saying that the tenant is defaulter in the payment of rent from November 1985 to May 1986 and further that he has not paid the water charges at the rate of Rs.35 per month vide Annexure 'A'. The learned Rent Controller, Lahore vide his order, dated 5‑11‑1986 passed an order under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959 vide Annexure 'C' directing the petitioner to deposit the arrears of rent at the rate of Rs.560 per month from November 1985 to October 1986 before 30‑11‑1986. The total amount to be paid by the petitioner as determined by the learned Rent Controller came to Rs.6,720. The petitioner on 29‑11‑1986 vide Annexure 'D' made an application at LO‑00 a.m. for obtaining permission to deposit the arrears of rent. However, it appears that the learned Rent Controller was on leave on 29‑11‑1986. The petitioner presented the requisite challans duly filled in before the learned Duty Judge. Despite the best efforts, the learned Duty Judge at 12‑45 noon granted permission to deposit the rent in Government Treasury. Unfortunately, the Banking Hours on the day were from 9‑CO a.m. to 12‑00 noon being Saturday vide the Notification, dated 8‑2‑1986 bearing No. B.C.D. (C&S)69/86/195.The petitioner could not deposit the rent on 29‑11‑1986. It may be noted here that 28‑11‑1986 was closed holiday being Friday. The petitioner, therefore, under the permission allowed by the learned Rent Controller on 29‑11‑1986 deposited the arrears on 30‑11‑1986. Respondent No.3 made an application on 21‑12‑1986 requesting that the petitioner has not complied with the order of the learned Rent Controller and as such his defence may be struck off under section 13(6) of the Rent Restriction Ordinance, 1959. The petitioner submitted his written reply to the said application on 19‑1‑1987 explaining the whole situation. It was stated in the written reply that the petitioner moved an application for deposit of the arrears of rent on 29‑11‑1986 at 10‑00 a.m. The learned Rent Controller was on leave and as such the necessary permission was obtained by him from the learned Duty Judge on the same day at 12‑45 noon. However, in the meantime, Banking hours came to an end, therefore, he deposited the rent on the next day. The learned Rent Controller vide his order, dated 15‑2‑1986 held that the plea being narrated by the petitioner is not cogent and further that he could straightaway go to the learned District Judge and could make a request for deposit of arrears of rent. On this short ground, the learned Rent Controller struck off the defence of the petitioner and ordered him to vacate the premises within one month's time. The petitioner went in appeal which was heard and dismissed by the learned Additional District Judge, Lahore vide his order, dated 25‑10‑1987.

3. Learned counsel for the petitioner contended that the facts and circumstances of the instant case will amply demonstrate that he is not guilty of wilful default in the payment of rent. He urged that he approached the learned Rent Controller on 29‑11‑1986 and found that the learned Rent Controller was on leave. He immediately, there after, approached the learned Duty Judge but he could get permission to deposit the arrears of rent at 12‑45 noon but in the meantime, 29‑11‑1986 being the Saturday, Banking Hours had already expired. Learned counsel contended that this was a sufficient cause for non‑depositing the rent on 29‑11‑1986. Learned counsel next argued that the necessary permission was allowed to him at 12‑45 noon but the Bank had been closed at 12‑00 noon and as such by implication the learned Rent Controller condoned the delay in the deposit of rent in favour of the landlord. Learned counsel submitted that intention of the petitioner is to be seen and at any rate this is not a case of wilful default on his part. Learned counsel contended that arrears of rent were deposited on the following day. In support of his contentions, learned counsel relied upon Mahboob Ali and others v . B . Bishan Singh A I R 1944 Lah. 470, Nijabat Khan v. Nur Ahmad etc. P L D 1957 Lah. 92, Ghulam Muhammad Khan v. Safdar Ali P L D 1967 SC 530, Syed Jalil‑ur‑Rehman and 7 others v. Mst. Rashida Begum and 10 others P L D 1976 Kar. 105, Muhammad Sharif and' another v. Muhammad Afzal Sohail etc. P L D 1981 SC 246, Ch. Muhammad Ali & Co. v. Dr. Siraj‑ul‑Haq and 2 others P L D 1972 Quetta 5, Ahmad Aziz Zia v. Messrs Bisvil Spinners Ltd. and others 1987 S C M R 542, Saeedan Bibi v. All Hussain 1975 S C M R 261, Mst. Rabia v. Yousaf 1981 C L C 1361, Charagh Din v. Settlement and Rehabilitation Commissioner and others 1982 S C M R 296 and Muhammad Shafi v. Messrs A.C.E. Enterprises and others 1987 C L C 748. Learned counsel appearing on behalf of the respondent vehemently submitted that the petitioner attempted to deposit the rent on the last date namely, 29‑11‑1986 and as such, he did it at his own risk. Learned counsel stated that the petitioner could very well go earlier for making the deposit in compliance with the order of the Court. Learned counsel maintained that this was not an act which was beyond the control of the petitioner. Learned counsel submitted that this is a finding of fact having been arrived at by the two competent Courts below. Learned counsel lastly argued that the learned Rent Controller has no jurisdiction to condone the delay of even one day. In support of his contentions, the learned counsel placed reliance on Fazal‑ur‑Rehman v. Mst. Sarwari Begum and others 1986 S C M R 1156; Ahmad Aziz Zia v. Messrs Bisvil Spinners Ltd. and others 1987 S C M R 542; Muhammad Jan v. Khadim Hussain 1973 S C M R 243; Ch. Muhammad Siddique v. Muhammad Rashid 1985 S C M R 21; M. Nazir v. S. Shaukat Ali 1982 S C M R 985; Ansari Brothers v. Holy Trinity Church P L D 1971 SC 700; Ghulam Muhammad Khan v. Safdar Ali PLD 1967 SC 530; Hassan Mahmood v. Zamir‑ul‑Haque 1986 C L C 1297; Gulzar Ahmad Pirzada v. A.D.J., Lahore 1982 S C M R 616; Ch. Muhammad Saddique v. Muhammad Rashid 1985 S C M R 21; Muhammad Hussain v. Mian Muhammad Ahmad etc. P L D 1970 Lah. 140; Haji Fazal Karim v . A . D . J . 1981 S C M R 1073 and Begum Capt. Mirza Ghulam Sarwar v. District Judge, Jhelum 1987 S C M R 25.

4. I have heard the learned counsel for the parties and have perused the record very carefully. The facts of the case are short and simple inasmuch as the question is whether the order, dated 5‑11‑1986 passed by the learned Rent Controller directing the petitioner to deposit the arrears of rent amounting to Rs.6,720 for 12 months at the rate of Rs.560 per month before 30‑11‑1986 has been complied with or not. To begin with, it may be observed that 29‑11‑1986 is the last date for making the deposit in compliance with the order referred to above. It is admitted that 28‑11‑1986 was the closed holiday being Friday. Therefore, the last day in the case was not available for the petitioner to make the payment. The admitted position in the case is that on 29‑11‑1986 at 10‑00 a.m. the petitioner made an application for the deposit of arrears of rent in compliance with the order of the Court. However, the learned Rent Controller was on leave on that day. The application and the challan forms were presented before the learned Duty Judge for obtaining the necessary permission. The learned Judge allowed permission to make the deposit on 29‑11‑1986 at 12‑45 noon when the time for deposit of the rent in Bank had already expired. Learned counsel for the petitioner has placed on record the copy of Notification showing the business hours of the State Bank of Pakistan, dated 8‑2‑1986. The above said Notification shows that the Banking Hours on Saturday and Sunday are from 9‑00 a.m. to 12‑00 noon. Obviously, on 29‑11‑1986 it was Saturda and as such at 12‑00 noon. the State Bank was closed, therefore, from the facts and circumstances of the case it appears that the petitioner did his best to obtain the necessary permission to deposit the arrears of rent in compliance with the order of the Court. Again, the learned Rent Controller was on leave on 29‑11‑1986. If the learned A Judge was not on leave on that day, the petitioner was able deposit the rent at 10‑CO a.m. on 29‑11‑1986, well within time. Unfortunately, the learned Rent Controller was on leave and, therefore, naturally, the application and the challan forms were sent to the learned Duty Judge for necessary permission from him. It is common knowledge that the Courts when busy in judicial work will not be able to attend to such like work. Therefore, it is not expected that the petitioner could interrupt in the proceedings of the Court and as such, request that he may be allowed permission to deposit the rent. The mere fact that the learned Rent Controller was or leave and that within time his application and the challan forms were forwarded b the Reader of the Court to the learned Duty Judge for grant o necessary permission, was enough satisfaction for the petitioner that he will get the necessary permission for making the deposit of arrears of rent. In my view, there is nothing on the record to show that the petitioner is guilty of wilful default in payment of the rent. In other words, the petitioner cannot be said that he has failed to complete with the order of the learned Rent Controller. He was well within time to move an application for obtaining the permission to make the deposit. I have seen the case‑law produced by both the parties. Each case has to be decided on its own peculiar facts an circumstances. On both the sides there is ample case‑law. The authorities produced and relied upon by the learned counsel for the respondent are not applicable to the facts and circumstances of the instant case and as such the rule laid down in those authorities not stricto senso applicable to the case in hand. The petitioner was able to give sufficient explanation for not depositing the rent on 29‑11‑1986, the last date fixed for making such deposit by the learned Rent Controller. In Abdul Aziz v. Aziz‑ul‑Haq 1972 S C M R 296, the amount regarding Zar‑i‑Panjum was deposited a day later than the date fixed by the Court, otherwise the plaintiff made efforts to deposit the money within time by getting the challans passed by the Court. It was held by the Hon'ble Judges of the Supreme Court of Pakistan that the plaintiff in that case made a valid tender to Court and that it was sufficient compliance of the order of the Court. In m view, the rule laid down in the referred authority will apply to the facts and circumstances of the instant case. Respectfully following the case‑law staled above, I proceed to hold that the petitioner i not at all guilty of default in payment of rent in compliance with the order of the learned Rent Controller. Resultantly, the learned Rent Controller and the learned Additional District Judge did not act accordance with law in passing the impugned orders. The impugned orders are, therefore, set aside being without lawful authority. The petition succeeds and is allowed leaving the parties to bear their own costs. The learned trial Court shall proceed in the matter in according with law for the decision of the case on merits.

A. A./G‑129/L ‑‑‑‑‑ Petition accepted.