AHMAD AZEEZ ZIA vs Messrs BISVIL SPINNERS Ltd. And Other

SAAD SAOOD JAN, J.-- This is an appeal by special leave from he judgment and order dated 5-12- 1984 of the Lahore High Court declaring an order of ejectment dated 22-11-1982 made by the Additional District Judge, Lahore under the Punjab Urban Rent Restriction Ordinance, to be without lawful authority.

2. The appellant is the owner of a property known as 16-Empress Road, Lahore. He rented out a portion of this property to respondent No.1 in 1974. On 30-6-1976 he filed an application under the Punjab Urban Rent Restriction Ordinance before the Rent Controller for ejectment of respondent No.1 on a number of grounds. On 31-5-1978 the Rent Controller made an order under section 13(6) of the Ordinance calling upon respondent No.1 to deposit future rent in the treasury at the rate of Rs.1,500 before the 15th of every succeeding month. Respondent No.1 regulary complied with this direction till July, 1980 when it committed a default inasmuch as instead of depositing the rent for this month before 15-8-1980 it did so on 19-8-1980. The appellant moved an application before the Rent Controller praying that the defence of respondent No. 1 be struck off on account of this default.

This application was resisted by respondent No.1. It stated that the delay in making the deposit was neither wilful nor due to negligence but that it was attributable to the bona fide impression that on account of the annual vacation of the civil Courts in August the rent could not be deposited during this month; however, on 18-8-1980 one of its employees was informed by its counsel that there was no bar to depositing the rent in August also; accordingly on the very next day, that is, 19-8-1980, it deposited the rent in the treasury. On 22-2-1981 it also moved an application for condonation of the delay. This application was supported by an affidavit of its Managing Director to the effect that the requisite amount for making the deposit had in fact been drawn on 5-8-1980.

3. By an order dated 16-3-1981 the Rent Controller dismissed the main application for ejectment on the ground that the appellant had not been able to substantiate any of the pleas upon which he was seeking ejectment of respondent No.1. He also dismissed the application wherein the prayer to strike off the defence of respondent No.1 had been made. He held that as the delay in making the deposit of the rent for the month of July, 1980 was due to a bona fide mistake it did not constitute a default.

4. From the order of the Rent Controller the appellant preferred an appeal before the Additional District Judge. So far as the main application for ejectment was concerned, the learned Additional District Judge agreed with the Rent Controller that the appellant had not been able to establish any of the grounds upon which he was seeking the ejectment of respondent No.1. As regards the delay in making the deposit of rent for the month of July, 1980, the learned Additional District Judge did not agree with the Rent Controller. He noticed that in the previous years, that is, 1978 and 1979, the annual vacation of the Courts in the month of August had not prevented respondent No.1 from making the deposit within the prescribed period; further, as the rent was required to be deposited in the treasury the permission of the Rent Controller or its office was not necessary and for that reason it was immaterial whether the Courts were closed or opened; and, even when respondent No.1 deposited rent in the treasury on 19-8-1980 it did not get the challan forms signed by the Rent Controller or any member of his establishment. Taking these circumstances into consideration, he took the view that the delay in making the deposit constituted default for which there was no satisfactory explanation. Accordingly, he accepted the appeal, struck off the defence of respondent No. 1 and directed its ejectment.

5. Respondent No.1 challenged the order of ejectment in writ jurisdiction in the High Court. The only question for consideration before the High Court was whether the delay in depositing the rent for the month of July, 1980 constituted a default. The learned Single Judge who heard the writ petition decided this question in the negative. In support of his decision, he referred to certain reported judgments wherein the omission of a tenant to deposit the monthly rent within the prescribed period due to annual vacation of the civil Courts was held not to amount to default. These judgments were Ghulam Muhammad Khan Lundkhor v. Safdar A.I PLD 1967 SC 530, Visumal Chatumal Khilnani v. A.I Bakhsh PLD 1968 Kar. 521 and Muhammad Shabbir v. Haji Ghulam Sabir 1981 Law Notes 292. The learned Judge also relied upon section 9 of the Punjab General Clauses Act, 1956 and observed that as the principle contained therein was applicable in this case there was no question of there being any default in making the deposit. Accordingly, he accepted the writ petition and declared the order of the learned Additional District Judge to be without any lawful authority.

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 finding the learned Additional District Judge referred to a number of circumstances.

While upsetting this finding 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.

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 the 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 the High Court. Reference in this context is invited to Muhammad Husain Munir v. Sikandar and others PLD 1974 SC 139.

7. The reference to the provisions of section 9 of the General Clauses Act was entirely uncalled for in this case. This section reads as follows: "Where, by any Punjab 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."

As its very language show, this section is applicable in a situation where a period is prescribed for the performance of an Act and the last day of the period so prescribed turns out to be a holiday. It is clearly not attracted to the present case. Here, as already mentioned, the rent was to be deposited in the treasury. It was not the case of respondent No.1 that between 15-8-1980 and 19-8- 1980 the treasury was closed; on the other hand its plea was that it was under the bona fide impression that the rent could not be deposited when the Courts were closed due to annual vacation. We do not see how the provisions of section 9, ibid., could be extended to lend support to this plea.

8. For the reasons stated above, we accept this appeal and withdraw the declaration made by the learned Single Judge. Respondent No .l is allowed four months to vacate the premises. It has given an undertaking that it will hand over vacant possession of the premises in question to the appellant without engaging in further litigation. The appellant will also have the costs of this appeal.