MUHAMMAD JAN vs KHADIWHUSSAIN

1. HAMOODUR RAHMAN, C. J.-The petitioner was a tenant of a shop situated in the Qissa Khawani Bazar, Peshawar City, belong--ing to the respondent herein. The respondent applied on the 15th of May 1971, for the eviction of the petitioner on the ground of default and on the 16th of June 1971, the Rent Controller, Peshawar, directed the petitioner to deposit the arrears of rent amounting to Rs.1,500 and future rent at the rate of Rs. 300 per month before the 15th of every month.

2. On the 4th of April 1972, the respondent applied for having the defence of the petitioner struck out on the ground that the rents for December 1971, and February 1972, had not been deposited before the 15th of January 1972, and 15th of March 1972, respectively.

3. The Rent Controller held that the petitioner had committed default and, therefore, his written statement was liable to be struck off and a decree passed in favour of the respondent for the eviction of the petitioner. The petitioner went up in appeal to the District Judge, Peshawar, who confirmed the order of the Rent Controller and a second appeal from the said order has also been dismissed by a learned Single Judge of the Peshawar High Court, on the ground that the finding as to the default of the petitioner is a concurrent finding of fact of the two Courts below.

4. The petitioner now seeks special leave to appeal and it is contended on his behalf that the Courts below have erred in taking the view that the default was due to an avoidable cause and thus amounted to a wilful disregard of the order of the Rent Controller, within the principle laid down by this Court in the case of Ghulam Muhammad Khan Lundkhor v. Safdar All (PLD 1967 SC 530).

5. The default in this case was, it is contended, due to the fact that by the time the petitioner got the necessary permission from the Rent Controller on the 14th of each of the said months of January and March 1972, to deposit the rent in the State Bank of Pakistan and went to the State Bank, the banking hours had expired and the bank was not prepared to accept the deposit on that day. The deposit had, therefore, to be made on the following day.

6. In these circumstances, it is argued, that as held in the case ' of MJabat Khan v. Nur Ahmad and others (PLD 1957 Lah. 92), the rent deposited on the following day was deposited within time.

7. Learned counsel for the Caveator has, however, drawn our attention to the fact that although on the 14th of January 1972, and the 14th of March 1972, the Court hours commenced from 7-30 a. m., the petitioner on his own statement came to the Court at about 10-00 or l 1-00 a. m. The delay in obtaining the per--mission of the Court for making the deposit with the State Bank was thus due entirely to his own carelessness and was not due to any unavoidable cause. He could well have avoided the default if he had come early and obtained the permission of the Court in time to enable him to make the deposit with the State Bank on the 14th. His failure to do so was entirely due to his own negligence and, therefore, he cannot claim to come within the principle laid down by this Court in the case of Ghulam Muhammad Khan Lundkhor.

8. There is substance in this objection and we are of the opinion that the petitioner could easily have avoided the default if he had gone to the Court and obtained the permission in time. We see no reason, therefore, to interfere. This petition is accordingly dismissed.